David Harmon: Hi, I’m David Harmon.
Mariya Gonor: And I’m Mariya Gonor.
David Harmon: And we are The Employment Strategists. Welcome to another episode of our podcast. This episode is entitled, It’s Time to Say Goodbye.
Mariya Gonor: Already, David? That’s just our second episode.
David Harmon: Not really. Not really. I’m really not saying goodbye.
Mariya Gonor: Realistically, our this episode is actually inspired by a recent trend of individuals posting videos, recorded videos of their layoffs on the internet.
David Harmon: And in it, we’re going to talk about the employee’s perspective, the employee’s risks, as well as the practices of employers when terminating people. That’s very important, because a practice and procedure is critical when terminating.
Mariya Gonor: So, the video that started this trend was posted by Brittany Peach, who was terminated by CloudFlare. The video has millions of views at this point, and when we discuss it, we’re not going to take sides because that already has been done by the internet. Clearly, it is divided. But instead, we’re going to discuss potentially improvement on some of the strategies from both perspectives. So, David.
David Harmon: Well, the key thing here is that this was a meeting scheduled with Brittany by the company. There were two people who showed up on the Zoom call. One was from HR, a person she had never met, and another person was, I guess, an officer of the company, but someone for whom she had not worked. So she didn’t know either of these people, and she kind of expected this was coming because she had heard about it from her peers that there were terminations that were going to be affected. But these two people showed up. And frankly, they were unprepared.
Mariya Gonor: Brittany did have the benefit of knowing that she’s recording this interaction, right? That’s why we have the video in the first place. But yes, the individuals that appeared on the Zoom call with her were not anybody that she’s ever worked before, and that was one of the critical comments that she’s made with respect to the actual process of termination. So, let’s lay out the framework, first of all, right? Generally, in most states, employment is at will unless there is a contract. At will employment means that the employer can [00:02:00] fire you for any reason or no reason at all, so long as it’s not a discriminatory reason.
David Harmon: Right, and at any time, with or without notice.
Mariya Gonor: And the same goes on the flip side for the employee, right? You can terminate your employment with the employer for any reason at all, so long as there is no contract governing the relationship. And same thing with no notice.
David Harmon: In this situation, though, the termination was alleged to be based on failure to perform. It was a performance based termination. When in effect, it appears that this was not the case.
Mariya Gonor: Yeah, so with some additional research and some of the comments that were made by CloudFlare, it appears that they actually fired about 41 employees. And, again, we don’t know what the facts are because we only have, for the most part, Brittany’s perspective. But, from what she shared in the video, she was hired in August. She was told that there is time for her to ramp up and get familiar with the product, product offerings by the company, and that she was terminated essentially four months into her employment, suggesting that she truly did not have the opportunity to actually show how her performance would be. Now, I think from the perspective of the company, it is extremely important to communicate clear expectations. That you have for your employees at the onset of employment, especially when it comes to performance matrix.
David Harmon: The problem that we see for the company and how they presented this was not to catch this as an at will termination, but it was due to the they use the word recalibration.
Mariya Gonor: Oh, yeah,
David Harmon: which is which is really a euphemism for It doesn’t really even cover What they were intending to do. It’s just a, an arbitrary term of try to find an excuse for the termination when it really was just in essence, a reduction in force, and it was going to be across the board and that’s how it should have been presented without telling this person, uh, some in effect untruths. And then when she challenged the people, uh, on the call, they were unable. To provide any substantive responses to her questions as to, well, if I did well and I was doing well and I, I, or I hadn’t had an opportunity to actually close any deals, but I was working as hard as I was, and it was well documented as to how hard I was working now to tell me that it’s performance based. It was something that she didn’t understand and the people who were terminating her were unprepared.
Mariya Gonor: Yeah. I mean, look, I think we can all agree that employment is not a participation trophy, right? Like working hard is not enough. You have to have actual accomplishments. But David, to your point, the HR or the two individuals on the call never actually communicated to Brittany that, hey, look, you know what? We understand you were working hard, but you had no sales. And that was the metrics that we measured your performance against. And again, I think it’s also important to have communicated that to her and other employees at the onset of the employment, because we don’t know what an employee’s situation is when they’re coming into this job, whether she had an existing job elsewhere, or whether she had other offers. But if I was considering a job offer, and I knew from day one that I will be valued in December, four months after I accept a job, On the amount of sales that I’ve made. I would have seriously considered that in making the decision to join that company.
David Harmon: This points out two things in terms of communication. One is the communication to the employee at the commencement of employment is regarding expectations of performance. But then another area of communication is at this very firing, that terms such as they needed to look at the data and they would look at data calibration, and they would then seek more information for her from revenue leadership, terms like that. It was as if they really were just, they could have been terminating anyone from any company at any time. They were just using these buzzwords that really had no real substantive meaning. If HR, terminations do occur. If HR is going to go in and terminate along with some member of management, there needs to be adequate preparation and it should be personalized as best as possible.
Mariya Gonor: Oh, absolutely. In a world where corporate culture is getting a spotlight and it’s extremely important and when talent decides where to go based in some part of corporate culture. You certainly don’t want your company to be known as somebody who views their employees as just clogs in the machine. And I think the usage of the term we’re recalibrating our workforce kind of plays into that clog in the machine stereotype. Companies generally are as good as the staff that they employ. And if a company wants to recruit the best talent, I think they need to be very mindful as to what kind of culture they project to the world and also how they treat their employees at any point at the commencement of employment and the termination.
David Harmon: Sure. So at the, at the time of, uh, joining a company, there are the onboarding portfolio of documents, handbooks, confidentiality agreements, non disclosures, proprietary inventions, agreements that employees are asked to sign. So how do you think this impacts on the termination that occurred. These agreements that may have been, we, I would hope that they would have had these agreements in place. What do you think these agreements mean in terms of this termination or this type of action taken by the company?
Mariya Gonor: So, I think it’s important, as I said before, to communicate clear expectations and what performance metrics the company would use. when evaluating employees performance. I think the second important document here or consideration here is whether or not the employee actually is subjected to any kind of confidentiality agreement, non disparagement agreement, and whether or not there is a definition of what constitutes proprietary information. And I think that will bring us into one of the points that we wanted to discuss today, which is when you’re an employee and if you’re considering whether or not this is something you should do right, post a video of your termination or whether or not it’s something you can legally do. The first thing you got to look at is your confidentiality, non disparagement and confidential information definition agreements because you want to make sure that you don’t run afoul of those.
David Harmon: So Mariya, when we talk about confidentiality agreements, employers must make their policies sufficiently clear to prevent unauthorized disclosure of sensitive company related information by employees and former employees. And they also have to be careful not to create documents that have these overbroad confidentiality and non-disclosure provisions that might run afoul of the employee’s NLRA rights as was highlighted in the February 2023 NLRB decision.
Mariya Gonor: Oh, absolutely. Uh, these agreements have been historically scrutinized, but they have been getting particularly More attention now after the decision that you just mentioned on the federal level, but also on the state level so It’s always a good idea for the employer to run all these agreements by competent counsel in your state to make sure that it’s complying With state and federal law and also periodically take a look at them again because the law changes in this area so frequently and something that would have been okay pre February 2023 may not be okay anymore.
David Harmon: So there is an impact of this type of action on employees and you know, you’re talking about employers seeking counsel before taking an action of recording a termination and potentially violating the confidentiality or non-disclosure requirements within those agreements. Employees should consult with counsel or get, or know whether or not they’re doing anything that’s going to trip the wire on violating those documents.
Mariya Gonor: Oh yeah, absolutely. And of course the internet is divided as to whether or not this is something you should do, but I think the first question for anybody is whether or not this is something you can do, right? And what’s the answer? I guess it depends, our typical lawyerly answer.
David Harmon: Well, it does depend. For instance, in some states, it requires that both parties to a communication consent to being recorded. And if you fail to obtain that consent, you’re going to, uh, violate the law.
Mariya Gonor: Absolutely, yeah. Some states have very strict wiretapping or anti wiretapping requirements. I think one of them is Pennsylvania, so that’s going to be significant. Also, there is a huge potential landmine where, when we have remote work Right. So, the employee may be located in one state where it would be okay. And then the employer is located in another state where it’s not okay. So all of these things have to be carefully considered before recording the video and then, you know, releasing it for the world to see. Um, the, the other thing that you gotta want to take a very careful look at is what’s actually said during that video, right? Because here it doesn’t appear that there was a lot of or any really confidential information disclosed But what if in the discussion with the HR? Some of the confidential or proprietary information does get disclosed like if somebody challenges the performance outlook or performance comment by the company and in that discussion the actual details of the person’s performance or Potential contract, potential clients, stuff like that gets disclosed. That could be a problem.
David Harmon: But I also, I question whether or not the actual publication of this process is a violation of confidentiality because company practices and procedures
Mariya Gonor: Sure.
David Harmon: Are being disclosed and now posted on the internet.
Mariya Gonor: Of course, yeah, that’s a very fair comment, absolutely.
David Harmon: Another thing is that employees, when considering doing this, should think about what is the impact on my future job prospects.
Mariya Gonor: Oh my god, absolutely.
David Harmon: If this is going to be permanently on social media for all to see, including prospective employers.
Mariya Gonor: Sure, absolutely. When was the last time that anyone that we’ve helped with employment agreement was not subjected to a background check?
David Harmon: Always. That’s become the standard procedure. Standard operating procedure.
Mariya Gonor: For sure. And most background checks certainly are going to include a simple Google inquiry, right? You just Google somebody and you find it.
David Harmon: Right. And the name comes up. So this woman’s name is going to come up. The video is going to be viewed. And prospective employers might view this, uh, public display of personal or company matters as a red flag. And might question, you know, the professionalism, the discretion of that individual.
Mariya Gonor: So an argument could be made that what she was doing is a protected activity under the NLRA, right? Because she’s speaking out about the terms and conditions of her employment, sort of. But I think on the flip side, the employer is not necessarily taking issue with her sharing this information, it’s the manner in which she sharing this information
David Harmon: So, Mariya, as we are the employment strategists, let’s provide some strategies for both employers and employees. Why don’t you share the employer strategy?
Mariya Gonor: Sure. From the employer perspective, this is relatively easy. Documenting employees performance. When a termination is going to be performance related is significant, especially when the termination is not a mass layoff, like we’ve seen here, but instead targeted to a particular employee. Communicating clearly the expectations that the employer has of employees is also immensely important so that they’re not surprised. If possible, placing an employee on a PIP is also a good idea so that the employee is not surprised when the termination runs around. Now, if the employer is terminating a number of employees, it is important to consult your state’s Mini Warn Act or Federal WARN Act to determine whether or not specific notices and specific elements that need to be complied with are required in this instance. Now, what about the employee, David?
David Harmon: So, for the employee, it’s important that the employee knows the agreements that the employee has signed, confidentiality agreements, non-disclosure, non-disparagement those agreements to know what the restrictions are, what they can and cannot do that will not get them in trouble under those agreements. In addition, check the law of the state that, regarding whether it consents to publication of communications, what, what each state requires or prohibits so that a violation of law doesn’t take place. And, of course, to evaluate whether this is really the best career move, to publish something like this on social media. Because, you know, nothing is forever, except whatever you post on social media.
Mariya Gonor: Absolutely. You know, a lot of the things that we discuss are driven by the law, but I think this particular issue is primarily driven by common sense, right? So from the perspective of the company to, and not to sound sappy, but coming to this issue with some empathy towards the employees that you’re letting go would go a long way. Right. And of course, we’re kind of moving in the right direction where it’s not. Remember a couple, like a year ago or so, one company fired a bunch of people on the zoom call. It was just like a mass layoff of a bunch of people in the zoom call. So while this is an improvement from that, it’s still not Very, um, empathetic and when the person’s asking for questions as to why you’re saying my performance is not good, especially when they’re working hard, not having the answers is not great. And of course, nobody wants to be terminated. And of course, there’s very few things that a company can say to make a person feel better when they’re terminating somebody. But having a little bit of human compassion, I think goes a long way.
David Harmon: Well, we thank you for listening. Remember to look out for our blog, The Employment Strategist, and we appreciate your listening to us.
Mariya Gonor: And while this is not legal advice, we hope that you found our time together entertaining and somewhat informative.
David Harmon: You can find us on The Employment Strategist at norris-law. com. Thank you.