Labor's new fight
As cancel culture reaches toddler age, something must be said about labor implications.
Early in June, a writer for the Washington Post called Dave Weigel was suspended for a month without pay for retweeting a YouTuber’s joke that a fellow journalist at WaPo called out as sexist. I won’t repeat the joke because it only perpetuates the sexism and misogyny that persists in our culture.
Just kidding.
“Every girl is bi. You just have to figure out if it’s polar or sexual,” the Tweet from Cam Harless stated. Weigel retweeted the “take-my-wife-please” joke, and then all hell broke loose within the ranks of WaPo. Most of us don’t know what conversations took place through the slack channel, but front-facing, it appears that fellow journalist Felicia Sonmez took extreme exception to the tweet retweet, stating on Twitter: “fantastic to work at a news outlet where retweets like this are allowed.”
I’m interested in this term “allowed.” It’s safe to say that we’ve all shoved off on a ship that will never return to dock. When it comes to social media, the instinct to self-promote, to become a “brand” has matured to the point that it’s almost become one’s job description (depending on their job). No profession is this more evident than writers, PR practitioners, publishers and journalists. When I’m finished writing this I’ll need to promote it, lest a tree falls in a forest. I’ll be using Twitter, Facebook, my podcast and maybe even Instagram to promote it. In a self-published, entrepreneurial environment like Substack, this probably doesn’t intersect with any conflicting motivations, but when a journalist or writer uses social media to promote something that exists on their employer’s platform (who also bears the responsibility of paying the writer’s healthcare, vision, dental, 401K and life benefits) one can see how fraught with potential for conflict this can be.
The most obvious conflict, and one that predates social media, is what necessitated the “church and state” culture of newspapers. For the uninformed, church and state refers to the separation between the advertising and editorial departments, to avoid conflicts between financial interests and the intended aim of journalism to inform the public. In the era of social media that conflict can increase to new levels. What happens if a writer for The Wall Street Journal goes on a Tweet storm about bad service on a Delta flight just ahead of a new full-page ad for Delta’s round trip incentives to Turks & Caicos? Church and State would dictate that life goes on. But lately we are getting into a bad habit of conflating said WSJ employee’s heartfelt rantings and ravings on his personal Twitter account for the official position of the company he works for.
This isn’t a “just last month” issue either; I’ve personally noticed at least as early as 2012 when Twitter users would state “opinions my own” in their bio. The message inferred from this is: “don’t blame my employer or boycott my company’s products just because you don’t like what I personally said on here.” I’m not sure if this “protection” ever actually worked back then; it certainly doesn’t work now. If you work for a company, your opinions are most certainly not your own, unless they’re uttered in a dark padded room with the door locked. If that sounds hyperbolic, consider this scenario. You spout off some clumsy or ill-conceived, maybe even politically insensitive opinion to your girlfriend over drinks. Two months later you break up, and your ex decides to air this awful thing you said over social media, tagging your boss in the process. Your ex-girlfriend’s post goes viral. Godspeed, good sir. Your opinions are most certainly not your own.
As this culture of holding people professionally and personally accountable for things they say or repeat reaches its toddler years, I think it’s high time we discuss the labor implications of this. What kind of public-private world do we want to live in? Right now we’re at a place where none of us are ever “off the clock.” We never punch out anymore. My grandfather was a wire lather in New York City in the 50’s and 60’s. And he was also an incorrigible drunk. He would punch out at 4, be at the bar by 4:15, drink his age in pints, and would only leave through the front window after he’d start a brawl. The next day he’d show up for work with two black eyes and the foreman would look at him, shake his head, and tell him what floor to find his crew. In short: what he did after 4 p.m. was his business. As long as he showed up for work and produced, he could do whatever he pleased. Only if he didn’t show up at work, or showed up drunk, would he be on the unemployment line. It was a distinct and pretty-much agreed-upon line of demarcation. That line is now gone. In 2022, if you have anything that resembles a temper, and you lose it on line at the grocery store, a teenager with a smartphone will record you and you will be out of a job by week’s end. We spend so much time pondering over the free speech implications of this phenomenon that we often overlook the labor implications.
When are you off the clock? When is your life your own? Why do we allow social media to flatten the difference between a person who displays a pattern of abusive behavior, and a person who just had a bad day on one particular afternoon in front of a teenager with a smartphone? And should the former, a person who displays a pattern of abusive behavior toward grocery store employees, be someone who should be permanently unemployed? Are we willing to support his unemployment insurance? What about his family? Are we willing to wink at evictions, car repossessions, loss of medical treatments, that can sometimes be downstream of his termination?
I find myself increasingly horrified by how many people shake off these questions and immediately start counting people’s money. “Dave Weigel will be fine,” I’ve read repeatedly since his 1-month suspension without pay. Do we know this? Do we know anything about his life, his finances, who relies on him financially? These seem like critical questions for anyone with a modicum of human compassion to investigate before celebrating anyone’s suspension or termination, let alone his, which (I remind you) was deemed necessary after he retweeted a throw-away joke someone else told.
I’m not sure if labor unions will necessarily solve all of these problems, but it’s an existing tool we have, so it’s worth starting there. Certainly in the teaching profession, in police and firefighting, unions exist, but quite often they lose cases when an employee tweets something offensive, or gets caught acting like a lunatic on camera. We lost out on a real opportunity a few months ago when a man was caught on camera taunting women at a pro-choice rally in the wake of the Supreme Court’s Roe v. Wade leak.
The man was initially identified as having worked for the FDNY, but it turned out he was not an employee of the department. What if he was? I often wonder what success the union would have had defending him. Because his behavior, while obnoxious, was not “harassing” or “stalking” or “intimidating” or “bullying” as it was described by thousands of people on Twitter. He was clapping and celebrating the “overturn” of Roe v. Wade and taunting them that they “lost.” He was standing a considerable distance from the protest, and remained on the stoop of a church the entire time. This is why, as the hours dragged on and more people scrambled to deliver some kind of consequence to this jerk, people started going through incredible mental gymnastics to argue how and why his behavior made him unfit to be a firefighter.
Nevertheless, if this man had turned out to work for the FDNY, the top brass would have most certainly wanted to see him gone. It would have taken the union going to bat for him to prevent it. Would they have succeeded? We’ll never know, but the evidence isn’t great. In the teaching profession, both tenured and non-tenured teachers have been fired for posting photos of themselves drinking over the summer break. Several years ago, a tenured teacher on Long Island was fired for appearing on a trashy reality TV show. In education the argument goes that teachers must avoid speech or behavior that “interrupts the educational process.” Police and firefighters are held to similar codes of conduct, as they labor under the general belief that words can reflect a person’s attitude while on the job. Hence, a police officer tweeting a racially insensitive joke might call into question his attitude towards that racial group while responding to calls. That reasoning is on pretty solid ground; cops, teachers, public servants need to demonstrate their ability to be fair, kind, reasonably objective, unbiased, and so forth. A tweet of a sexist or racist joke might call that character into question. If it was a single incident, (any many are) a seasoned union representative might be able to plea down such a violation to a fine, brief suspension, or a letter to file.
But none of this is even in the equation when it comes to Dave Weigel, or any of the nearly 90-percent of Americans working today without union protection. These people are completely at the mercy of upper management who have clearly displayed absolute cowardice in the face of even the mildest social media mob. No matter what you might think about Weigel’s retweet, what isn’t disputed is that he was doing so on his personal Twitter account. He was clearly off the clock. Naturally, WaPo’s position is that his tweets, personal or otherwise, reflect on them because he’s a public figure of sorts, and people associate his name with WaPo. This isn’t entirely unreasonable at first glance, but it is fraught with subjectivity. If you’re at all politically vocal on any issue in America you’re almost guaranteed to upset at least half the population. If you’re conservative on any issue on Twitter, you’re almost guaranteed to upset at least 80 percent of the Twitter population. Combine this with the fact that almost everything has become political: from contagious diseases to school curricula, and the only real way to avoid pissing somebody off is by shutting up entirely. (Don’t think for one second that your employers wouldn’t love to see you exercise that option.)
Without union representation, the 90 percent of America’s workforce have one other body to turn: The National Labor Relations Board (NLRB) who handles individual cases of employees who might have been unfairly terminated by private non-union companies. However, the NLRB generally adheres to violations of the NLR “Act,” which is a federal act aimed to protect workers from retaliation or intimidation when seeking to organize.
In most “cancel culture” cases, the employee was not terminated for whistleblowing or organizing. Oddly enough, in the eyes of the NLRB, an employee has greater protection from firing if he goes on social media, directly addresses fellow employees he has on his friend list, and goes on a tirade about the bad pay, the hours, or the safety of their workplace, than if he went on social media and told a "how-many-blondes-does-it-take" joke.
Additionally, the NLRB is not exactly a friend of the working man when it comes to social media-fomented firings. In most social media cases I reviewed, the Board sided with the employer because the employee was merely griping, not organizing.
One of the most notable cases to reach the NLRB was the case of James Damore. Back in 2017, Damore was canned for responding to Google’s request for feedback on how to swell its engineering ranks with more women. In a memo he drafted and shared on Google's electronic slack channels, he cited some arguably dubious social and psychological studies to point out innate sex differences in personality between men and women and how that can sometimes translate to career choices. However dubious, they were indeed published and peer reviewed journals that any reasonable person might cite when trying to stake a claim. When Damore appealed his termination to the NLRB, the Board upheld Google’s decision to fire him. The NLRB released a memo to the public explaining their position. In the memo, the author essentially treated Damore's scientific citations as though he was dog-whistling to sexists. "[Damore's] statements about immutable traits linked to sex—such as women’s heightened neuroticism and men’s prevalence at the top of the IQ distribution—were discriminatory and constituted sexual harassment, notwithstanding effort to cloak comments with “scientific” references and analysis, and notwithstanding “not all women” disclaimers" the decisions reads. The fact that she took special care to place quotation marks around “scientific” is very telling.
Of course, the real reason Damore was fired is because the CEO had to leave his vacation to deal with the fallout from his memo. Most of these public firings are cases of employers who just don’t want to be bothered with the drama. You’re doubly cooked if you make the boss have to put down his coconut drink and leave the island to deal with your Polish joke. At some point in the process a CEO or supervisor might be advised to “ride out” the cloud until the locusts move on to another crop, but usually they conclude that riding it out just isn’t worth the time and effort. A human being tied to that decision, with a mortgage, a sick child, student debt…factors in very little. People are there to provide a service that is replaceable. It’s called Human RESOURCES for a reason. When the resource is well-supplied, the path of least resistance is to cut ties and move on. In short, Weigel doesn’t really have a case to bring to the NLRB.
That brings us to the only other “hope” for the average person who might find themselves embroiled in controversy over a dopey retweet of a joke: their employer’s social media policy. The problem with this is that any such policy is going to be designed, not to protect your human right to free and open expression, or to ensure the company isn’t overreaching into your private time “off the clock,” but to protect the company’s reputation and bottom line. Social media policies are often authored by HR personnel, sometimes with the assistance of a PR agency or marcomms professional. Talk about church and state! These policies are not the product of a collective bargaining agreement. They are 100-percent tilted in favor of protecting the bosses and giving them a lot of real estate in their decisions to terminate someone.
During my research into corporate social media policies, I found one blog post, written by a marketing professional, particularly eye-opening. The blog post listed the “Solid and Inspiring” policies on the books. Some of the language and framing in this post can’t possibly sit well with anyone who is concerned about company intrusion into your life. Electronics giant Best Buy had this to say in its social media policy:
“Remember, your responsibility to Best Buy doesn’t end when you are off the clock. For that reason, this policy applies to both company sponsored social media and personal use as it relates to Best Buy.”
The blog author applauded this. When Best Buy also included a subsection that it doesn’t “tolerate discrimination,” the author added this little bit of Zoinks!
“I like that Best Buy respectfully addresses hateful comments and posts. People can get caught up with their First Amendment rights, believing it gives them the right to say whatever they want without consequence.”
Ah yes, those pesky, annoying little First Amendment rights we keep blathering on about. Which brings us back around to what constitutes “hate,” or “discrimination.” Certainly, Sonmez found Weigel’s retweet to be hateful against women. If Sonmez and Weigel were employees at Best Buy, Weigel may have been canned for “discrimination” despite the fact that the EEOC defines discrimination in the workplace as unfair treatment or prevention of opportunities based on race, gender, etc… Weigel was not in a position to prevent Sonmez or any other woman at WaPo from advancing. Best Buy’s zero tolerance social media policy is so broad, it gives them a very big ax to swing. And this company is being held up as having an “Inspiring” social media policy!
There’s more to say about how we are reaching a point where we need to set some labor boundaries, but for now I’ll end with this Tweet that inspired me to write this. It’s from Natalie Shure.
“Someone getting slapped with a several thousand dollar penalty for retweeting someone else’s dopey joke, even after immediately deleting and apologizing, is a labor issue.”
But is it a labor issue we are prepared to address? I’m interested in exploring what solutions we can come up with that strikes the right balance between worker protections and an employer’s right to free association.