Brittany Pietsch, a former account executive at Cloudflare, recently gained viral attention by sharing a nine-minute video of her termination on TikTok. Anticipating the termination after her colleague’s dismissal half an hour earlier, Pietsch titled the video, POV: You’re about to get laid off. Enjoy the trauma! 🙂
In the video, two company representatives who were unfamiliar to Pietsch opened the meeting by stating her termination was due to her failure to meet expectations after an evaluation of 2023 performance. Pietsch quickly interjected, disputing the company’s assessment of her performance. She emphasized her brief four-month tenure (including a three-month ramp-up period that preceded the holiday season), asserted that she had the highest activity on her team (despite closing zero deals) and expressed surprise at her termination given that she had received nothing but positive feedback from her manager, who was notably absent from the meeting. The company representatives, however, did not provide specifics regarding where Pietsch’s performance fell short.
The incident ignited public discourse on the proper way to handle employee terminations and sparked a new trend among Gen-Z employees of recording and sharing their terminations on social media platforms.
A Note to Gen Z: Don’t Do It for The ‘Gram
The familiar disclaimer, “This call is being recorded for quality and training purposes,” is there for good reason. In many states, it is illegal to record calls if you do not have the consent of the other parties on the line. And even if you are in a one-party-consent state, the other party may be in a two-party-consent state. If so, does your jurisdiction control or does the jurisdiction of the other party?
At best, you may be putting your future employability at risk in exchange for views. At worst, you could be charged with a crime, slapped with a lawsuit, or both. Don’t let the intrusive thoughts win! The allure of views on social media should not override the potential professional and legal consequences.
A Note to Employers: Navigate the Recording Trend Wisely
Employers might be tempted to respond to this trend by implementing policies that prohibit employees from recording workplace conversations. This may get them in hot water with the National Labor Relations Board (NLRB), which has held that, in certain circumstances, an employee recording in the workplace can be legally protected activity under Section 7 of the National Labor Relations Act (NLRA). This means that employees, whether unionized or not, have the right to take action to help protect, enhance or improve the terms and conditions of employment for themselves and their co-workers.
Employers who interfere with or restrain employees’ Section 7 rights may be found to have committed an unfair labor practice. Thus, for most employers, policies prohibiting recording should apply only to information that is not protected under Section 7, such as information about customers, vendors, suppliers or corporate trade secrets.
Best Practices for Employers to Avoid Viral Controversies
With that said, below are some tips for employers seeking to avoid “going viral.”
- Avoid surprises with timely (and documented) performance discussions. Even before an issue arises, employees should have a clear understanding of what is expected of them. If they fail to meet those expectations, the manager should let them know. So often, well-intentioned managers focus primarily on providing positive feedback to their reports and postpone the constructive criticism until the annual review, if at all. Employees should receive timely constructive feedback. And, because underperforming employees don’t always listen to the feedback they are given, it’s even more important to contemporaneously document these discussions. No employee being terminated for poor performance should be surprised.
- Do it in private and (preferably) in person. With the exception of remote employees or where there may be a safety concern, don’t terminate an employee over the phone, via letter, via email or via phone call. Do it in person if you can. Ideally, the employee’s manager and an HR representative (always have a witness!) should deliver the message in private. If the employee has a conflict with a particular coworker or manager, that person should not be involved in the meeting. In-person terminations may reduce the possibility of a recorded meeting, although there are no guarantees.
- Keep your communication brief and non-argumentative. Prepare a brief summary of the points that you will need to convey during the termination. Give employees time in the meeting to process the decision and ask questions, but do not be drawn into bargaining or arguments. Any employee concerns raised should be listened to and investigated, but not debated.
- Protect company confidential information. If an employee feels bitter about their termination, they might do much worse than embarrass your company on TikTok. Right before or during your meeting with the employee, terminate their access to your company’s electronic systems, such as their employee email account.
- Consult your friendly neighborhood employment lawyer before you act. As always, employers should seek legal advice to assess the risk of terminating an employee, especially those employees who have been with the company for a long time; have recently complained about an issue in the workplace; have recently returned from a leave of absence that is covered under the Family and Medical Leave Act (FMLA), a state leave law or because of a medical condition; or who belong to a protected class. State anti-discrimination laws vary, but under federal law, protected classes include race, color, religion or creed, national origin, age (40 and older), disability, veteran status and sex (which includes pregnancy and pregnancy-related conditions, gender identity and sexual orientation). Preventive legal guidance will help to ensure compliance with employment laws and minimize legal risks.
In this new era of viral job terminations, caution is the latest trend. Employees, protect your professional reputation; employers, adopt these best practices to avoid making the wrong kind of headlines.
Joyce M. Dos Santos is an employment defense attorney at Constangy, Brooks, Smith & Prophete. Her practice focuses on counseling and advising employers on a broad range of issues, including discrimination, harassment, retaliation and wrongful termination. She can be reached at jdossantos@constangy.com.
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