About a week after Elon Musk assumed control of Twitter on Oct. 28, the company stirred up a storm of controversy by abruptly firing about half of its 7,500 employees.
Musk’s brash approach as an employer also raises an important question about U.S. labor rights: Is it legal to terminate thousands of workers with little or no warning?
The courts may have a chance to weigh in since several of those mass-fired workers have already filed a class-action lawsuit. They allege that Twitter broke federal and state laws for failing to give them the advance notice required.
But I believe that Twitter’s new management team is probably not going to face much legal fallout. That’s because “at-will employment” – in which employers may fire an employee at any time for any legal reason, and their workers are also free to quit without facing legal consequences – is the foundation of U.S. labor laws.
Courts began to enshrine the at-will doctrine in the 19th century, making exceptions only for employees with fixed-term contracts.
The notion of at-will employment and its associated lack of job protections soon rose to the level of constitutional mandate. The 1894 Pullman strike, which disrupted national rail traffic, prompted Congress to pass the Erdman Act four years later. That law guaranteed the right of rail workers to join and form unions and to engage in collective bargaining.
The Supreme Court struck down that law in 1908. Writing for the majority in Adair v. United States, Justice John Marshall Harlan explained that because employers were free to use their property as they wished, they could impose and enforce their own employment rules. Employees, in turn, were free to quit.
The Adair ruling led to the proliferation of “yellow dog” contracts threatening workers with firing if they joined or organized unions. The principle had widespread legal approval.
For three decades, the at-will doctrine stymied legislation that would have protected labor rights. Even when a supervisor unsuccessfully attempted to seduce a longtime employee’s wife and fired the employee in revenge, courts refused to protect the man from losing his job.
With the passage of the National Labor Relations Act in 1935, all private sector workers and their unions gained the power to collectively bargain with employers. Subsequent labor agreements made employers prove “just cause” before firing any person covered by the contract.
The Civil Rights Acts of 1964 and 1991 added employment protections prohibiting discrimination based on race, gender, religion and national origin. And the Americans with Disabilities Act, which Congress passed in 1990, banned employment discrimination against “qualified people” with disabilities.
The federal government, and some states, has enacted additional laws since then that can protect workers against mass layoffs.
The Worker Adjustment and Retraining Act, enacted in 1989, is an important one. Known widely as the WARN Act, it requires employers of 500 or more people to provide employees with written notification within 60 days of mass layoffs. When an employer violates this law, workers who don’t get the mandatory advance notice can sue for up to 60 days of back pay and benefits. Employers may also have to pay fines.
The former Twitter employees who have sued the company allege that Twitter failed to give the required legal notice before their layoffs.
But Musk has tweeted that the fired employees will receive severance packages that amount to three months’ pay.
Contractual agreements between employers and their employees may provide protection in the form of seniority preferences. Absent such contracts, workers must rely on legislative safeguards.
Under Musk’s leadership, Twitter has reportedly been inconsistent with the severance packages it has offered fired employees.
It’s not clear that all of its U.S.-based workers were offered the legally required 60 days of compensation.
Given the circumstances, I believe it is unlikely that former employees who are suing Twitter will prevail. Unfortunately for fired Twitter employees, there are few legal options available for those who refuse whatever Musk offers them.
Raymond Hogler is a professor emeritus of management at Colorado State University. Distributed by The Associated Press.
