The ultimatum that Elon Musk delivered to his employees has the Twitterverse and beyond abuzz.
News reports indicate that he sent his employees a directive in an email to commit to work harder or leave the company. The email from Musk reportedly says, “Going forward, to build a breakthrough Twitter 2.0 and succeed in an increasingly competitive world, we will need to be extremely hardcore, This will mean working long hours at high intensity. Only exceptional performance will constitute a passing grade.”
Employees who agreed to those terms were instructed to check a box marked yes. Those who didn’t agree would walk away with three months severance.
Contact a lawyer
Guelph employment lawyer Peter McSherry says it looks as if Musk is changing the terms of employment, but the wording is vague.
McSherry says, “What does ‘extremely hardcore’ and ‘at high intensity’ really mean? If he was dramatically changing the terms of employment in Ontario, and you could prove what the changes were, then it could amount to constructive dismissal. And when the court sees a constructive dismissal, the damages could be more than three months.” In Ontario, three months severance is not a generous offer.
An Ontario court would assess damages based on various factors. Three months severance might be a fair settlement for a newer employee who has transferable skills.
McSherry says, “For an older employee with years of service and few transferable skills, it would not be a fair settlement. Such an employee would get far more by engaging an employment lawyer who will negotiate on their behalf.”
Get it in writing
Along with getting legal advice, McSherry advises affected employees to get more specific terms of the ultimatum in writing. He says, “If this was a one-on-on conversation, I’d be saying to an employee, let’s try to get the details, break this down, and determine exactly what he’s expecting.”
If an employee normally works 40 hours a week and now Musk is expecting them to work 80 hours a week, then it would clearly be constructive dismissal. McSherry stresses, “It’s just not clear.
The vagueness of the wording in the ultimatum gives Musk the opportunity to change his story as litigation progresses. McSherry advises employees to not make a move until they get some clarity. “I would like to nail down the employer on the specifics as to what they actually mean before the employees say, I guess I’m out of here.”
A twist on the Johnny Paycheck song
Remember the old Johnny Paycheck song, Take This Job and Shove It? McSherry sees Elon Musk’s behavior as a twist on that song, with Musk telling Twitter employees, Shove It And Take This Job.
One fired manager recently tweeted, “Looks like I’m unemployed y’all. Just got remotely logged out of my work laptop and removed from Slack.”
Other employees found out they were fired when they couldn’t access their work email. Being aware that you were fired only when your laptop stopped working could be deemed Wrongful Dismissal in Ontario.
Offering no notice and no face-to-face conversation wouldn’t be looked at favourably by the court.
Under Ontario’s Employment Standards Act, the notice period isn’t counted unless an employee is given written notice. McSherry says, “If there was a dispute as to the time of termination, just cutting off an employee’s services, while it is a termination, wouldn’t necessarily be the trigger for notice and the court would find that the firing was done in a very disrespectful and in a public way.”
Disrespectful and insensitive
While Elon Musk’s directive is vague, one thing is certain, Peter McSherry has never seen anything like this before.
He says, “I don’t think the world has ever seen anything like this. The fact that it’s done with an ultimatum in a very dismissive way and done online with the world looking on, I don’t think you can have a more disrespectful way to do this.”
As McSherry sees it, Elon Musk’s relationship with Twitter is much like Miley Cyrus’ song Wrecking Ball. He came in like a wrecking ball with his ultimatum forcing employees to decide as The Clash song says, Should I Stay or Should I Go? McSherry advises employees, before they make this musical choice to get legal advice.
If you have questions regarding your employment entitlements contact Peter McSherry at (519) 821-5465, Email: [email protected] or visit him online here.