Episode 611: What Happens When Employers Get Recorded Firing an Employee?

episode 611

Let’s delve into a scenario that could happen to any of us in the professional world. We’ve all seen them by now—the secret Zoom video recordings of a large company firing a remote employee via call go viral. Secretly recording a conversation raises privacy issues, and, once again, a crazy ruling by the NLRB last year states that eavesdropping on employers by employees is legal under federal law. When recordings get released in the wild, it is never good for the employer. We discuss how the employer tried to mitigate the negative impact by responding and how that can worsen things. THIS IS NOT AN ISOLATED LARGE corporation problem, it impacts small businesses too. 

So, what could you do when this happens to you? Gain insights from the seasoned perspectives of Paul Edwards and Elijah Newsome, our Social Media Strategist, as they break down best practices around negative reviews in this week’s episode of What the Hell Just Happened?!


Voice Over: You’re about to listen to an episode of ‘What the Hell Just Happened’. Join Paul Edwards and his guests as they discuss interesting HR topics and solve some of our listener submitted questions. 


Paul: And occasionally I’ll go off HR topic and talk about whatever I want to talk about. Think barbecue. Space exploration. Technology. Money. Managing. Business. Things that interest all of us.


Voice Over: We get a lot of emails with questions. Stay tuned for details on how you can submit yours to the show. And now let’s get started. 


Paul: On today’s show, we’re going to talk about recording viral videos. And really, if you’re the owner of a company, how or if you should even respond? I mean, we’re going to get into this again, this is one of those podcasts where we highlight something that happened in the news and relate it back to HR topic. And I just find this one really interesting because I feel the pain of the CEO. I feel the pain of the employee that we’re going to be talking about. I completely, you can see in hindsight, hindsight’s awesome everybody. You can see in hindsight how everything could have worked out better. But I don’t know if any of this would have played out differently.

So with no further ado, let’s get to the show. 


Paul: All right, everybody, welcome to ‘What the Hell Just Happened’. There’s a lot that just happened. First of all, Elijah, introduce yourself. 


Elijah: I’m Elijah. I work in marketing. I am not an HR expert. So for all the people who are listening, that are like, “Man, all these people are really smart. They know a lot about HR.” That’s not me. So this is going to be really relatable. 


Paul: You are really smart, just not about HR. No, no, no. You’re learning. 


Elijah: I’m learning. I’m learning. 


Paul: You’re learning. And look, on the podcast we like to cover…We love news stories and things that are going on in the news that are things that we can tie back to HR in some way.

It doesn’t always have to be that way, but I think there’s a good HR tie in about today’s topic. What are we going to talk about today, Elijah?


Elijah: Well, this is something that is near and dear to my generation. I’m a Gen Z person, and over the past few months, there’s been a new trend of people recording themselves, being laid off or terminated. And we’re going to about one of these scenarios that happened that made it beyond the walls of TikTok and Instagram and made it all the way to Twitter and into the main news sphere. 


Paul: I think you mean X, you know? If it’s going to be of that generation let’s get it. We just can’t say it, can we? 


Elijah: I can’t. I can’t. I was there, not at the very start, but pretty pretty close to the start of that app. 


Paul: I just figured out how it works and then they changed the name and now I don’t even know where to find it. How about that? 


Elijah: Well, yeah, and you don’t want to type in X.com [laughs] You don’t want to do it.


Paul: So okay, this trend people recording, I want to clarify, this is even new, even becomes even more kind of new to the world because so many people work remote and many large companies have adopted either a hybrid or you can work remote. And so things like lay layoffs and firings are occurring over, for lack of a better word it’s kind of like Kleenex is a term for tissues, over Zoom 


Elijah: Yeah and there’s been a lot of…and the interesting thing about it is that you would think that it’s only the tech companies. The really big companies like this one, Cloudflare is a huge, huge software company. 


Paul: Right. 


Elijah: But I’ve seen videos where it’s even smaller businesses where managers are calling people on their days off and doing it over the phone. And so someone will get a call and they’re not expecting a call from a manager or from someone in HR at a co-op or a small business and all of a sudden they’re realizing in the moment that they’re being laid off. And so they’re starting to record. So it’s very interesting. It’s like we have a lot of people who are who are listening to this who are like, “Well, I’m not I’m not the CEO of Apple. I’m not the CEO of Google. I don’t have to worry about this. I’m not-”. But even if you have a smaller business and you don’t do that termination or don’t do that layoff in person, you could be viral. Who knows? And that’s where it gets a little sticky. 


Paul: Yeah. You know something else I’ll add, this is some HR nerd stuff I’ll just add-in. There’s an organization called the National Labor Relations Board. They enforce the National Labor Relations Act, a little over a year ago. They act as…Elijah, they’re pretty unique because they act as judge, jury, and executioner. Which is very rare even for the federal government to have that much power concerted in one place. It’s not that you can’t sue them to get a third party kind of, to look at the facts of what’s going on. It’s that if you want that, you will have to sue them. There is no third party, disinterested. They get to be the judge. So they charge you with the crime. I’m air quoting, and then they get to be the judge of the thing they charged you with.

That’s like having the cops decide the case. So I’m not a huge fan although I do know why some of the rules are there. And I understand. I don’t think they’re bad rules, just not a fan of it, of the organization. During one of their cases a little over a year ago, I’m going to really make this very simple, going to simplify this. There was an issue because someone recorded a conversation that they were having with a manager.

And I think part of the argument was it was either, and I don’t recall exactly, but part of it was either we have a policy against people recording without permission and/or it may have even been in this state, it requires two-party consent in order to record. And what the National Labor Relations Board decided was that when it’s related to your working conditions, that you as an employee can record secretly without any permission from anyone because you would pick up information you may be able to pick up information in that secret recording that you could then use to further your cause underneath the National Labor Relations Act. Which is insane, to say that you can just record anywhere you want to. Now, here’s the thing: in the end, their statement at the end, they said something to the effect of even in states where the state has a rule against this recording, our federal…. But since we’re federal, our rule takes precedent over the other rule. Now, no one has tested this yet. And I think that the states that have that two-party rule and are going to eventually probably challenge, it’s going to get challenged in the states. So the reason why I shared all that, everybody because it is a new development and it’s… I don’t love it. It is greenlighting right now until somebody pushes back on this. By the way, the Supreme Court shortly after that ruled in another not… in another case where they basically said, “No, federal law doesn’t always take control”. But that was in the case of it… was a tort and it was yeah, it’s not the same context, Elijah. But still, it kind of shows that if you take this to the Supreme Court, they’re not going to be so likely to side with the federal decision that gives all power to a federal entity. Okay. Now the reason why we’re here and I just want to- look, I want to point this out because we keep seeing these recordings. And the first thing that would come in my mind is ‘I think you might be eavesdropping here’ or you might be recording a two-party conversation and you’re in a state where actually it could be a civil issue, it could even be a criminal issue. This isn’t just a cut-and-dry thing where you should be shoving this up on X, right? And putting it out there. And I think that argument was made in front of the National Labor Relations Board and they did what they did. So now that I’ve gotten past that, because I’ve got, you know, I got this HR bit to this thing, and I don’t know if you know it or not. But we talk about HR on this podcast.[laughs]  I’m letting everybody who’s listening out there know that there’s been kind of a green light out there to do this recording. Okay, now we have a recording Elijah. 


Elijah: We do.


Paul: What happened? 


Elijah: So we had an employee who, or former employee who-. 


Paul: [laughs] No, that’s not funny


Elijah: I mean, it’s not funny.


Paul: It’s HR funny.


Elijah: You know, it is what it is. 


Paul: It’s black art. Go ahead. 


Elijah: Well, she, posted to Tik Tok in January of her being terminated. Now, I think in the initial TikTok, she kind of at the beginning thought she was being laid off, but she was essentially terminated for underperformance. It’s revealed in the video that she’d only been there for a few months, maybe 5 to 6 months. She claims she’s only received good, only ever received good feedback from her manager. And the product she’s selling is a software. It’s very expensive and- 


Paul: Not easy to do. 


Elijah: Yeah, not easy to do. It takes 3 to 4 months. I understand that- 


Paul: It’s a cycle. So let’s be clear. I’m going to finish your sentence. It’s something that takes 3 to 4 months and sometimes longer for the decision makers to purchase because this isn’t a widget and it’s not $19.


Elijah: Yeah, you’re talking thousands of dollars. You’re talking about potentially having to make a decision on getting out of a previous contract with a different software company, starting something from anew. It’s very, it’s very complicated. So 3 to 4 months, that’s pretty typical for a software product. 


Paul: And if you’ve only been there five months, then your first response would be, “I haven’t been given a chance here for my sales cycle to work”. 


Elijah: Correct. Yeah. And so the employee then asks for further reasons for, you know, give me some specifics because I’ve been told I’ve been doing really good and you’re saying the opposite and the HR folks on the call and that’s a key part is that this was an HR to former employee call. The manager wasn’t involved and so HR kind of went into this pretty blind and just were like we need to terminate this person.


Paul: We executed on a termination without really putting the person that they were talking to first. 


Elijah: Yeah, and they had a large amount of people that they terminated. It’s kind of a cycle for this company, and they couldn’t provide any reasons. They were pretty flustered on the call. It’s a very long video, but that’s the gist of it. Later on the employee, as the video started to blow up, the former employee posted on LinkedIn, she’s now a LinkedIn influencer. So I guess that worked out in the end for her. She’s getting some brand deals. She posted some further context saying that the manager wasn’t aware of the firing in advance, and the manager also only had good things to say about her. But that’s her side of the story. And so-


Paul: Which could be accurate. 


Elijah: It could be accurate and that’s honestly that in itself is not…it’s not ridiculous. That happens all the time. Again, we’ve seen so many people record themselves where things got a little bit iffy is that a lot of people were critical of how HR handled it. They had no questions. They were clearly flustered. She was very frustrated. She didn’t understand. And again, you’re getting one side in these calls. And so that started conversations outside of Tik Tok and then it made it all the way to X where the CEO of Cloudflare, the company, decided to weigh in, Matthew Prince. 


Paul: How did it go?


Elijah: It didn’t go well. I don’t think there was anything particularly wrong with his statement. He essentially, it’s a very long quote.


Paul: Did he own it? 


Elijah: He owned that there was a mistake in how they handled it, but he didn’t think there was a mistake in why the person should have been terminated. And he alleges that they know because they’ve been doing this for years, within a few months, whether or not someone’s going to be successful at the company. And so they would rather go ahead and terminate someone early into the career rather than, you know, waste money trying to train them up to be a competent salesperson or, you know-


Paul: It’s just not the job for you. 


Elijah: Yeah, it’s just not the job for you. 


Paul: And I think he if I remember in his statement, he did. He did kind of own up to, you know, “We didn’t do a good job of hiring”. But I mean, the fact is, is that if you do a very, very good job of hiring, I think there’s only about a 50/50 shot of someone working out. And I think maybe actually I want to move that. I want to say it’s 60/40 and you’re in the favor of the employer. And I’m gonna say in favor of the employee, just that it’s going to work out. That it’s a good fit.

But that 40% is a wide swath. And it just is. It just is true. You do your best and then, you know, you know, whether or not they can do it. But the mentality that they brought to this situation is that we measured some numbers. We looked at some data. We’ve decided you’re not a fit.This is what we do. This is our mechanism. We look at the 50 people or the 45 salespeople, and as soon as they get their third or fourth cycle, we use some data and then we call that heard. If HR is prepared they come to the conversation and the first words out of their mouth is “It’s not you, it’s us”.


Elijah: Yeah


Paul: “I think we made, I don’t want to say we made a mistake here”, but I want to- and then you talk to them, to the person that you’re laying off or you’re letting go and you do it in context of that. But what they tend to want to do is to try to keep their experience rating down in their unemployment taxes.


Elijah: Yeah. 


Paul: They try to say it’s not us, it’s you. We don’t share any culpability in this. We gave you a job and now we’ve found a way to say to the unemployment in the unemployment hearing, this was your fault, not ours, so that we don’t get dinged for unemployment. And I understand that mentality, too. And I understand when you’re a huge company and your payroll is $10 million a month or more or $50 million a month, if you could keep your experience rating down a half a percent, you’re talking about tens of thousands, if not hundreds of thousands of income.

That’s all well and fine until you end up on Twitter. 


Elijah: Yeah, 


Paul: I’m not going to call it X. He can kiss my ass. Til you end up on Twitter like they did. 


Elijah: Yeah. And the interesting thing about this is that this was one person who was fired out of 40 at the same time. They all got the same conversation. And so it’s interesting that this went viral. And, you know, part of it is that’s the nature of how things can go. Yeah, that’s how it works. If you record yourself and give everyone access to your life, you’re going to get the high points and the low points. That’s what happens. And so the public response was pretty negative just because I think in general it’s pretty cool to hate on any employer. So that’s-


Paul: It’s…yeah it hits the heartstrings. 


Elijah: Yeah because I think a lot of people have been terminated. A lot of people have been laid off. So there are always a lot of people who will side with an employee and it just didn’t go well for Cloudflare. The CEO, the most public-facing person of your company, is constantly getting into… he’s going back and forth with random accounts. People are very large influential people, are you know, quoting his tweet and saying, “This is messed up”, blah, blah. It even made it all the way over to basketball Twitter, which is a whole nother thing. That’s how I found out about it was, he compared the person to Chris Paul not working out with the Phoenix Suns. And I was like, ‘Well, that’s quite the comparison, but I understand it’.


Paul: So I’m guessing Chris Paul’s sitting in his living room on a Saturday or something, and then all of a sudden he’s like, “Look, I’m trending. I wonder what I… oh no.” 


Elijah: Yeah. And so honestly, after reading the statement, was the CEO wrong to respond? Did the company do anything wrong?


Paul: No. They really didn’t. They didn’t per se, they didn’t do anything wrong per se. But they’ve gotten so mechanical in their use of people and they’re using them and I, and I actually, I kind of hate this term. That’s going to surprise you, Elijah. I don’t like the word human resources because it implies that humans are a commodity and a resource. And I want to be real here because I own a business and I’ve owned businesses and I’ve had employees practically my entire adult life since at least 30 years old. And there is some mechanical nature of we got to get people in here, we got to do the work, we got to service the customers, we got to do the things we want to do.

But still, it’s the human part of this conversation that I think we all need to kind of keep track on. And I did see this in his statement, and I want to point it out that it’s good sentiment, but it wasn’t sentiment that was active at the time with this employee. To my knowledge, the sentiment is no one should be surprised that they’re not performing well and then fired or laid off or an action’s taken against them. So she was like you described, people come on like on their time off or something thinking, hey, HR is calling me to give me a raise or, you know, they don’t know what it’s about because they have no idea. And then all of a sudden they’re let down, you know, in this way. And then it’s made about them instead of really about the truth, which is you’re in your third or fourth month. These are our data points. We, you know, we’ve talked to you a couple of times and said you’re struggling here and we don’t think this is going to work out. Really weird that the manager didn’t know. 


Elijah: Yeah, I think that’s probably the oddest part about this is that. 


Paul: And I like having the manager in. I’m in a few Reddits that have HR human resource people in there. And they’re…interesting. And people are not clear on whether or not the manager is supposed to be the one to do the firing and HR is not there at all. That’s not HR’s job. And other people are like, no, HR should be doing all the firing. Managers are idiots, and they shouldn’t be, they shouldn’t be in the room because they’re going to say or do something stupid to the conflict is between the employee and the manager. I’d rather not have the manager in there because I don’t think this is going to go well. And by the way, for all of you out there, you know, this is small employers better, really better than the leaders at larger corporations. You know that that this is very personal, that your relationship to your employees and how you manage them and how you communicate with them is very personal and it’s very difficult. It’s just something that, it’s a skill, that’s I guess that’s what I was trying to get to, Elijah, is you really have to have this skill and not every manager has the skill to be able to de-escalate, to be able to remove themselves from it. I’m going to be honest with you when, if someone says something negative about this company, it triggers me. It cuts to the quick and some people do it to cut me to the quick occasionally. You know, it’s usually one of those like job review sites. Like Glassdoor. 


Elijah: Yeah. 


Paul: Like, I mean, that’s an example of a…of the next thing, which is don’t respond. 


Elijah: Yeah, right. 


Paul: The next thing is I don’t I think if you…my experience is not responding also doesn’t fuel the fire. I don’t know what positive comes from it, but when you’re triggered and you’re upset and even if you’re defending yourself or not defending yourself and you’re defending the company or whatever, I just don’t- Elijah, so back to your generation should he have responded? 


Elijah: I don’t think he should, especially if it’s on the Internet, because everything lives forever in the Internet first of all.


Paul: And there’s only so much context and so many words you can put. 


Elijah: Exactly. And with the overwhelmingly negative response, I don’t know if people were dying to work for Cloudflare, but when you’re thinking about, all right, we have to recruit for the next generation of workers, you’ve now, you know, effectively pissed off people who are coming out of college, who are going into sales.


Paul: Who just have some negative thing about you in their mind.


Elijah: Yeah. And you could be missing out on the next great salesperson because you responded. And whether or not, you know, your response was the right response or not, it doesn’t matter. 


Paul: Right. 


Elijah: If the public believes that you have done something wrong and if they had just left it alone, I think it would have died down like the hundreds of other viral termination videos and I don’t remember the names of all the different companies I’d seen on there, but I remember Cloudflare.


Paul: At least for now.


Elijah: Yeah, at least for now. And so now, you know, I think it’s it was a mistake to respond and I think that goes all the way down to even if you’re a smaller business and people talk and if you hear that someone’s talking about your company or their experience at your company and just, don’t take the time to even respond to that.


Paul: No, unless it’s constructive. Unless there’s something you can do, you know, unless you can do something about it. I mean, you know, it shows up in Google reviews and stuff like that. And I’ve got stories about stuff, you know, Google reviews and people posting stuff. But yeah, I think the best thing to do is to not respond or to really be cautious and judicious in your response because I don’t know what good comes of it.


Elijah: Yeah


Paul: Right? 


Elijah: Probably nothing. The only good that comes of it is if you profusely apologize.


Paul: And maybe you shouldn’t. 


Elijah: Maybe you shouldn’t. But yeah and so and that’s, and again that’s hit or miss. 


Paul: Yeah. Every HR expert out there is like, ‘Yeah, don’t say- Don’t say more than you have to’, but I feel like this HR group really… And let’s not blame them. I was about to say they really dropped the ball and they messed this up, but they’re working within the culture of that CEO and if anything, his glaring failure from my point of view, by the way, if you’re listening, dude, I got plenty of things you could point out about me.


Elijah: Yeah. 


Paul: Is that there is a culture inside of his company which allows HR to show up and a manager, HR to show up and lay or terminate someone and a manager doesn’t even know that it’s occurring. That’s not a good…that’s not a good culture to cultivate for your employees, you know? 


Elijah: Yeah. 


Paul: All right, so what the hell just happened in HR is that someone got fired, so that person recorded it, put it out on the Internet, it went viral. The response was actually not a bad response, but it did not accomplish anything that the guy had hoped that it would. And it kind of created a mess. We could do better. How about that? 


Elijah: Yeah


Paul: We could do better. Yeah. Okay. Elijah, thanks for coming in as a non HR expert and bringing me this issue to chat about and we’ll see you on another show.


Elijah: Of course, glad to do it. 


Voice Over: Thanks for joining us for this week’s episode of What the Hell Just Happened. If you have an HR issue, question or just want to add a comment about something Paul said, record it on your phone and send to podcast@WTHjusthappened.com. We might even ask if we can play it on the show. Don’t forget to like and subscribe and join us again next week.

Apr 15, 2024

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