Anti-Cancellation Clauses: corporate timeouts for the digital age

Right now, a lot of people are getting fired because of Internet mobs.

The below isn’t legal advice. You are on notice of this disclaimer.

From Balaji “consistently several years ahead of everyone else” Srinivasan:

Cancellation is anti-worker.

Employees should start demanding 90-day cooldown periods in contracts such that they can’t be precipitously fired due to passing social media storms.

Sometimes it’s a real issue. If so, it will still be real in 90 days. Let cooler heads prevail. https://t.co/9JkADYM5bc

— Balaji S. Srinivasan (@balajis) June 18, 2020

Or this from @stillgray:

The stepmother of Garrett Rolfe, the Atlanta cop charged with murder in the death of Rayshard Brooks, has been fired from her job for being his stepmother.

This is where we're going. Relatives, friends, and family of canceled people are not safe either. pic.twitter.com/JD1c8o8sUU

— Ian Miles Cheong (@stillgray) June 19, 2020

So, in the United States employment terms are usually “at-will.” That is to say, anyone can fire anyone else for any reason at any time as long as they’re not discriminating against the person being fired when they do so. A typical employment-at-will clause might look something like this:

Your employment with the Company will be “at-will.” You may terminate your employment with the Company at any time and for any reason or no reason by notifying the Company. Likewise, the Company may terminate your employment at any time, for any reason or no reason, consistent with all applicable state and federal law, and without advance notice.  Your employment at-will status can only be modified in a written agreement signed by you and by an authorized officer of the Company.

– Standard form offer letter on my hard drive

In order for a clause like this to change to become cancellation-proof you’d really need two things to happen. First, you’d need to get a number of large companies to agree to adopt new standard language – or large numbers of workers would need to insist on it, such as workers in unions – in order that this would become an expected term everywhere, so workers had leverage to negotiate it. If Facebook and Google offer a term and Microsoft doesn’t, presented with materially identical offers, an employee might take Facebook and Google’s offering and ding Microsoft’s.

Second, companies would need to get their PR playbooks straight and adopt a pro-worker protection ethos and run a very standard form game to wait for the mobs to wash over them and move on to their next target.

Incentives don’t line up in favor of anti-cancellation clauses. It serves employers’ interests for employment to be at-will. Many employee handbooks have policies that require employees to not embarrass the company with their personal conduct. Seeing how the digital mobs are moving from target to target, though, query for how much longer companies will want this to be the case (who wants to be held hostage by Twitter mobs all the time?)

Any clause that achieves widespread adoption would need to accomplish the following:

• Employment remains at will
• Digital mob “Cancellation Event” is strictly defined
• Cancellation Events always or almost always lead to Cancellation Leave of Absence/Cool-Down Periods before termination, and do not prejudice at-will employment rights of the employer after that period ends.

Here’s a first stab which isn’t legal advice, it’s just food for thought that I bashed out in 40 minutes. If you’re not paying me, I’m not your lawyer. Lawyers, feel free to critique on Twitter, or by e-mailing me at my work address (easily findable on Anderson Kill’s website).

The draft clause:

“(a) Your employment with the Company will be “at-will.” You may terminate your employment with the Company at any time and for any reason or no reason by notifying the Company. Likewise, the Company

i. may terminate your employment at any time, [and] [or];

ii. [save that,] on the occurrence of a Cancellation Event, Company [shall only] [may, in its sole and absolute discretion and in accordance with the provisions of sub-section (b) below, decide to] terminate your employment upon the expiration of any applicable Cool-Down Period,

in each case, for no reason or any reason, consistent with all applicable state and federal law, and without advance notice.  Your employment at-will status can only be modified in a written agreement signed by you and by an authorized officer of the Company.

“(b) Upon the occurrence of a Cancellation Event, [you and the Company agree that, in the Company’s sole and absolute discretion, the Company may require you to take] OR [you and the Company agree that you shall take] a 90-day leave of absence (“Cool-Down Period”) [in lieu of immediate termination,] [, with or without pay,] while the Company conducts an investigation, subject to such conditions and restrictions as the Company may in its sole and absolute discretion require. During such time you agree that you shall comply with any and all of the Company’s reasonable directions to protect the Company’s reputation including but not limited to deactivation of all social media accounts and making no statements about the Cancellation Event or any fact or circumstance arising out of or in relation to the Cancellation Event to any person except to the Company, to medical and mental health personnel, and attorneys, accountants or other professional services providers for the purpose of seeking professional advice.

“(c) “Cancellation Event” means an event where ten or more persons who are not employees, directors, shareholders, suppliers, customers, or other business relations of the Company or of Affiliates of the Company [“Affiliate” to be defined] contact the Company in a seven-day period with disparaging information about you, or call upon the Company to release you from your employment, in each case relating to your or a third party’s personal conduct outside of the scope of your employment which is legal in the United States.”

What the draft clause does:

This is not a pro-employer clause by any stretch of the imagination. Employers aren’t going to like this unless they’re really very anti-digital mob and are willing to put up with the heat of keeping someone controversial on staff for 90 days. A friend has suggested that if the 90 day period were expressed to be mandatory that a substantial severance be available for an employee who were “cancelled” as sometimes employers just need to get someone toxic out the door immediately. I might suggest that if the conduct were that bad there would probably be tangible reasons to effectuate a dismissal under normal circumstances anyway (creating a hostile work environment, etc.)

I freedrafted this but it’s kind of a mishmash of a suspension, a confidentiality agreement and a termination procedure. Key aspects:

• Unapologetically pro-employee with limited downside to employers.
• Promotes the First Amendment space outside of the office, where it belongs, not inside it, where companies like Google have had to crack down on internal politics. This language encourages people to engage in politics in their free time and not on office time.
• Strictly defines “Cancellation event.” Ten people. Seven-day period. Not related to the company. Personal conduct.
• Protects out of office conduct which is outside of the scope of employment only. If you mess around within the scope of your employment you’re not getting cancelled, you’re getting fired.
• Requires ten or more people who are not involved in the company to contact the company for aforementioned conduct. Employees can complain without triggering a Cancellation Event, so if someone gets wasted and behaves like a jerk at an office party you can move straight to termination with a straight face.
• Allows third party conduct to trigger a cool-down period (so employees don’t get fired for the conduct of their wives, like the L.A. Galaxy’s Aleksandar Katai).
• Protects employee conduct which is legal. Does not protect conduct which is illegal.
• Allows the Company the ability to fire the employee OR go for a Cool-Down Period, relying on reputation risk to keep themselves honest (“this Employer rarely fires before a cool-down is done”). Obviously if the employee is particularly outspoken or represented by a union, he or she could negotiate a mandatory cool-down period in the event of a Cancellation Event. I’d think this would be an excellent clause for unions to insist on in employment contracts.
• Allows the Company wide discretion to immediately remove the employee from active duty while it conducts an investigation.
• Allows the company to prevent the employee from making a bad problem worse on social media and putting his or her foot in it with the press.
• Gives the company air cover to say it is contractually bound to honor the process as it’s a term of employment that the Cancellation Event gives rise to a termination sequence which is contractually binding.
• Allows people with a legitimate interest in the company’s business, such as employees, directors, shareholders, and suppliers, to complain about employee conduct while not counting towards the “Cancellation Event” ten-count or triggering a “Cancellation Event.”

Questions? Hit me up on Twitter or Gab. Or send a good comment and if I like it I’ll let it through moderation.