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Why Musk’s ultimatum to Twitter employees won’t fly in Canada

Elon Musk’s ultimatum to Twitter employees might fly in the United States, but it carries significant legal downsides in Canada.

Stuart Rudner, founder of Rudner Law in Markham, Ont., said there are ways to do what Musk wants to do on this side of the border — “but not the way he’s doing it.”

Hardcore culture

According to the Washington Post, Musk — the new CEO and owner of Twitter — issued the orders in an attempt to change the company’s culture and make it “hardcore.”

“This will mean long working hours at high intensity,” the email to staff read, according to the Post. “Only exceptional performance will be given a passing grade.”

Employees were given until 5 p.m. ET on Thursday to accept the new conditions. Anyone who doesn’t will be terminated and given three months’ severance pay. It’s not clear if the same email and conditions were dictated to Twitter staff in Canada.

If the email was sent to and applied to Canadian workers, Rudner said Twitter could be facing “a whole lot of wrongful dismissal claims” seeking more severance.

Employees can be let go, but you have to pay them

Contrary to popular opinion, Canadians don’t have job security, said Rudner. Workers can be let go at any time, for nearly any reason, unless they are unionized or part of “small group of federally regulated employees,” he said.

“It’s just a matter of how much notice or severance they’re going to get,” he said.

Musk’s blanket offer of three-months would likely not cut it.

“There is no one-size-fits-all, and I’m sure a lot of these employees have more than a three-month entitlement,” said Rudner.

Click and accept

Rudner also took issue with the notion of clicking a button to accept new employment terms.

“You’ve now entered into a new employment contract, right? You can change someone’s contract, but you’ve got to do it properly,” he said.

One way to do that is “consideration.” That’s offering something of value in exchange for accepting the new employment terms.

“Continued employment does not count,” said Rudner. “You can’t just say that’s consideration.”

Employers also need to give workers time to review the new contract and get independent legal advice.

“Saying click here within three days or you’re going to get packages, again, is not satisfying the requirements,” said Rudner.

Courts have never defined exactly how much value needs to be offered to qualify as consideration to change employment terms, he said. It could be a pay increase; it could be a one-time bonus.

“But it can’t be $1 or $10. It’s got to be something more substantial,” he said.

Long working hours

There are also reports Musk has told staff to brace for 80-hour weeks. That just isn’t possible in Canada, said Rudner.

“Even if someone did agree to work 80 hours a week, that’s going to be way off side on your employment standards legislation,” he said, unless they’re in an exempt group.

A problematic Tweet

Musk got into a public spat with a Twitter employee on the platform. When Musk sent out a tweet about the platform being “super slow” in many countries, he was corrected by Eric Frohnhoefer, who was identified as a Twitter engineer by CBS News.

Following an exchange between the two, Musk tweeted “He’s fired.” (That Tweet is no longer available, as Musk apparently deleted it. But Ben Collins retweeted a screen grab of it.)

Before the first round of layoffs, employees were reminding each other to keep their heads down and out of the way of Musk.

If they got laid off, they'd get severance. But if they pushed back against Elon? They'd get fired. No severance.

Very normal work environment. pic.twitter.com/o9dQAHJCPn

— Ben Collins (@oneunderscore__) November 14, 2022

“Not only is that terrible from an HR angle, but it could easily lead to bad-faith damages,” said Rudner. “You’re not supposed to fire someone in any way that can humiliate or embarrass them. I think a lot of (Canadian) courts would award extra damages for that.”

While the damages vary, Rudner said they typically run in the $25,000 to $50,000 range.

How Musk could properly do it in Canada

The simple way to accomplish what Musk wants to do is give everyone proper notice of the change in their employment conditions, he said. It would have to be a lot more than three days.

“Basically, it’s the same notice that you’re giving them as if you were letting them go, which could be up to two years in some cases,” he said.

Generally speaking, the longer an employee has been on the payroll the more notice is required.

Rudner has seen examples of across-the-board changes, but those came with notice periods in the range of one year to 18 months.

“Effectively the message is, if you’re still here on such-and-such a date, you are now governed by this new contract,” he said. “They don’t explicitly have to accept it. They accept it by continuing to work.”