Tuesday, August 8, 2023

Despite what he says, Elon Musk will not pay your legal bills if you’re fired for Xing

"If you were unfairly treated by your employer due to posting or liking something on this platform, we will fund your legal bill. No limit. Please let us know."

Elon Musk tweeted (xed?) that note Saturday night to his 152 million followers on his platform. Thus far it’s been liked close to 850,000 times, quoted or retweeted more than 165,000 times, and viewed nearly 130 million times.

And it's complete and total rubbish.

No, Elon Musk will not pay your legal bills to fund your wrongful termination lawsuit. Here are two key reasons why.

1. Simply and clearly, employees do not have free speech rights at work. If an employee tweets something that places your company in a bad light, that you see as amoral or inappropriate, or that you just don't agree with or like, you can fire that employee. That's the lawsubject to four limited exceptions of which you should be aware.

a. Public-sector employees. Government employees are the only employees the 1st Amendment actually protects. Still, their free speech rights are not absolute. The 1st Amendment only protects them as private citizens speaking on matters of public concern, and only then if the employee's interest in speaking freely outweighs government's interest in efficiently fulfilling its public services.

b. Protected concerted activity under the National Labor Relations Act. Section 7 of the National Labor Relations Act protects the right of employees to, between and among themselves, discuss wages, hours, and other terms and conditions of employment.

c. Protected activity under anti-discrimination laws. If an employee is complaining about unlawful discrimination or harassment, various anti-retaliation provisions protect their speech from retaliation.

d. Specific state laws that either protect employee speech or other lawful off-duty conduct. Several states have specific laws that protect an employee's political speech, or, more broadly, speech in general. Even more states protect an employee's right to engage in lawful off-duty conduct. Ohio has neither. Regardless check your state laws if you intend to regulate your employees' speech, or otherwise take action against an employee for something that employee has said.

Therefore, Musk can pay for whatever lawsuits he wants, but the odds are high that those lawsuits will be losers for the employees.

2. Musk is currently involved in contentious litigation against Twitter's former lawyers in an effort to avoid paying his company's 90 million legal bill. If Musk won't pay his own lawyers for their legal services, what makes you think he'll pay your lawyers for theirs.

To sum up, if Elon Musk funds litigation based on claims of "free speech," in almost all cases he's throwing away money to fund a losing effort. Based on his propensity not to pay lawyers, however, the odds are quite high that his tweet was nothing more than a publicity stunt.