On Friday, SpaceX fired a group of employees involved in crafting an open letter to corporate leaders that criticized CEO Elon Musk — and labor lawyers now say the firings may have violated US labor law. The letter circulated Thursday calling for stronger anti-harassment policies at SpaceX and a more restrained Twitter presence from Musk. At least five employees were fired shortly after the letter was published.

It’s unclear whether any of the fired employees will try to file suit with the National Labor Relations Board (NLRB). But if they do, lawyers say they will have a strong case. “To be covered, an action has to be concerted (certainly the case here) and it has to relate to working conditions,” says Charlotte Garden, a law professor at Seattle University who wrote about employee speech rights for the Economic Policy Institute earlier this year.

The most difficult part of retaliation cases is often proving that an employee really was fired in retaliation for speaking up, but SpaceX has made it easy to show the connection. In her note to employees after the firings, SpaceX president Gwynne Shotwell made clear that the employees had been terminated specifically because of their involvement with the letter, which she characterized as “overreaching activism.” Even if SpaceX tried to deny it, the simple timing of the firings — coming less than 24 hours after the letter itself — makes the connection hard to ignore.

“This could very much be seen as retaliation for speaking up,” says Mary Inman, a whistleblower attorney at Constantine Cannon. “What does this say to workers? It basically says, we don’t want to hear from you.”

SpaceX did not respond to a request for comment.

For a legal challenge, the main hurdle would be to show that the letter itself constitutes employees coming together to discuss working conditions, but the letter’s emphasis on company goals and “no asshole” policy seem to fit that model. There are exceptions if speech is vulgar, abusive, or directed at customers, but none fits easily with the circumstances of the SpaceX case.

“It strikes me as a letter that is mainly about working conditions,” Garden told The Verge. “I think the NLRB would see it that way too.”

If the case is successful, SpaceX could be forced to reinstate the fired employees with back pay. Notably, the protections would not apply to managers and supervisors, who aren’t subject to the National Labor Relations Act (NLRA).

The issues raised in the letter also fit into long-standing harassment concerns within SpaceX. In December, five former SpaceX employees came forward with complaints of specific harassment issues they felt had been mishandled. A former intern filed suit against SpaceX in 2020, claiming the company retaliated against her after she reported a harassment incident. The employee letter makes the same point itself, saying “recent events are not isolated incidents; they are emblematic of a wider culture.”

This would not be the first time one of Musk’s companies has run afoul of US labor law. After a heated fight over attempts to unionize Tesla’s Fremont plant under the United Auto Workers, the NLRB ordered Tesla to reinstate a fired employee with back pay. Musk was also ordered to delete a tweet implying that unionization would mean the end of stock options at the company — although, over a year after the order was issued, the tweet remains live.

Already, Communications Workers of America (CWA) is taking the SpaceX firings as more fuel for the ongoing effort to organize tech workers. “Elon Musk says he’s committed to free speech – except when his employees are exercising their legally protected right to speak out about their working conditions,” the CWA said in a statement. “We hope this will be a rallying point for workers at SpaceX, just like it was at Google and Activision.”

https://www.theverge.com/2022/6/17/23172915/elon-musk-spacex-letter-fired-legal-protected-speech-nlrb