From High Performer to Illegally Terminated
Client Alex MacDonald writes about his experience taking a case to the NLRB.
This past February I was suddenly terminated from my position at a small software development shop. I had been working there a little over three years, and organizing there for two years.
A month before my termination, leadership announced changes to our healthcare plan. That day, HR sent out the fine print. I analyzed it and concluded it was effectively a cut. Since we were spending a ton of money on what I thought was wasteful expenses, I pointed this out on Slack in our “#off-topic” general discussion channel.
I posted that around 5 PM. The next morning, our CEO deleted my post and then terminated me. The formal reason for my termination was, without elaboration, "misconduct." I was offered no severance, and termination for cause complicated filing for unemployment.
Over the next month, I reached out to Matt Bruenig who guided me through filing an NLRB charge and represented me in settling the case with my employer. We've since discussed sharing part of my story here for your education about what makes a compelling NLRB case.
While I'd love to tell you that my settlement constituted effective deterrence, it might as well have been a parking ticket. The most the NLRB can order is a "make-whole remedy," which is back pay with interest and potentially reinstatement. If you settle your case, the terms of your settlement will generally be commensurate with that. They also have to deliver a message to your remaining coworkers in which they promise they will not retaliate for similar conduct, a remedy called "notice posting."
Strengthening the NLRA, e.g. by passing the PRO Act, would greatly increase the legal penalties for illegal retaliation like I experienced.
Regardless, I'm happy that I was able to not go quietly and get some money from the company to pay the bills while I look for new work.
Working in tech
I joined a company that was pro-DEI and progressive-coded, with trans and Black representation on the hiring page—a real "bring your whole self to work" type place. We spurned Facebook-style "move fast and break things" ideology by putting the craft first, taking time to do things the right way, and valuing the open-source community. In our Slack, we regularly posted pro-labor news articles about the Starbucks unionization effort, and leaders would react with enthusiasm and support.
As NLRB Edge has covered, companies don't stop being autocracies because they have a 10-point DEI framework. "Strategic" executive mandates got prioritized over employee growth. We suffered multiple rounds of healthcare cuts and skipped raises.
So I organized. I traded stories with coworkers about attempting to hold leadership accountable. Stories of being trampled on, threatened with performance improvement plans, compelled to apologize, expected to perform gratitude, and departing unceremoniously.
The core of a narrative
If your employer retaliates against you, you have to demonstrate that it was likely because you were engaging in protected activity: discussing compensation, concerted action, a union campaign, etc. It is then up to your employer to show that they would have taken the same action anyway.
In my case, I posted in the general off-topic Slack channel, where we'd otherwise post cat memes and interesting news articles. The CEO sent a follow-up email after terminating me with these telling excerpts:
“Hello all, I am reaching out to let you know that Alex MacDonald is no longer an employee of [company] effective immediately. Separately, I wanted to take a moment to address the concerns voiced about health insurance changes in Slack.
“We have seen time and again that voicing serious concerns in public slack channels is a huge distraction for our work force that rarely leads to shared understanding. It's the equivalent of walking into the cafeteria at an on-premise business and shouting your frustrations loudly for all to hear. No one would ever do that in an office because it isn't productive. The same is true for our public slack channels.
“We want to hear from you, but please do that through respectful conversations with [supervisors], with the leadership team directly, or follow up with any one of us with your thoughts in writing via email. When we see that others at [the company] would benefit, we will communicate this back to the broader organization so that no one is missing out.”
The irony is that had one of our employees staged a protest at the Meta cafeteria—literally showed up to yell about layoffs and economic disparity—most people at this company would have lauded their courage. I was only punished because I was laying the blame at our own leadership.
More material
Several times, my supervisor offered me the title of "Lead" because I was helping coordinate my coworkers on a big project. I had this in writing, most recently just six months before they fired me. This took any dispute about performance issues off the table and made "misconduct" a difficult pattern to establish.
They didn't offer me any additional pay, so I didn't accept the role. This was fortunate because it could have muddied the waters. If I had the capability to direct other people's work, I may have qualified as a supervisor and lacked protection under the NLRA.
I had screenshots of most relevant communications. Where I didn't have screenshots, I had notes and a pretty good timeline of various policy announcements, which would have been useful if it came down to discovery.
On organizing
Organizing is incredibly difficult. This was my second time trying it at a workplace, and I made strategic mistakes. For one, I publicly posted grievances and that got me fired, which was not part of the plan. An illegal retaliation can be a spark to galvanize people, but that requires mobilization to already be in place. You only get that after months or years of dedicated, quiet effort.
If you're thinking of organizing your coworkers or trying to unionize, my experience involved connecting with my local DSA, which had a labor committee. There, I enrolled in the late Jane McAlevey's Organizing for Power training. I read accounts by other organizers and unions, notably the 2012 Chicago Teachers Union strike, and learned about strategy and tactics. This past summer, my old classmates and friends started a protest campaign where we successfully campaigned for reforms at our old church.
Throughout 2024, reading NLRB Edge taught me the NLRA as it is actually practiced, with specific examples of what activity is protected. I recommend retaining Matt Bruenig's legal counsel if you have a situation like mine.
Alex MacDonald provides software development consulting services.