Noam Scheiber
As tech employees have become more outspoken at work over the past decade, companies have often fired or disciplined those who they say have gone too far. It has been rare for workers to find legal recourse.
But a recent ruling is a rare exception. An administrative law judge for the National Labor Relations Board in the United States found on July 1 that software company Atlassian had illegally fired an engineer in 2023 after she pushed back against manager layoffs and other policy changes.
The ruling found that the engineer, Denise Unterwurzacher, had a federally backed right to make such comments because she made them as part of a collective effort to aid or protect co-workers.
The judge ordered the company to reinstate Unterwurzacher to her former job or an equivalent position, and to make her whole financially. It is one of the most significant outcomes in years in a case involving the labor rights of a tech worker.
βI pursued this case not just for myself, but also for the rights of those who continue to work at Atlassian and in the wider tech industry,β Unterwurzacher said in a statement.
During the case, Atlassian argued that it had fired Unterwurzacher for violating company rules that require employees to behave civilly and avoid ad hominem attacks against one another.
βWe believe in upholding our company values and community guidelines to ensure our workplace is safe and respectful for all,β Atlassian said in a statement after the ruling was announced. The company said that it planned to appeal to the labor board in Washington and that it was therefore βinappropriate to comment further.β Unterwurzacherβs reinstatement and financial compensation will hinge on the appeals process.
Tensions like the one between Unterwurzacher and Atlassian have become more prominent at tech companies in recent years. Employees had long considered themselves part of a professional elite that enjoyed generous pay and perks and a collaborative relationship with management.
But the relationship began to shift over the past decade, even as the industry became a driving force in the US economy. Workers seized on what they said were gaps between company policies and their long-standing principles, like βdonβt be evil,β which was once Googleβs informal motto.
Some protested their employersβ contracts with the Trump administration or with the Israeli government, and the companies in turn disciplined or fired workers who they said were being disruptive or were compromising the safety of fellow employees.
Beginning in 2022, large tech companies undertook waves of layoffs and reoriented their businesses around artificial intelligence, often leaving their workforces feeling vulnerable and micromanaged.
βThe issues people are organising over really do seem to have shifted to AI,β said Emily Mazo, a doctoral student at Columbia University who studies tech worker activism. Mazo said workers were concerned both about the possible societal dangers of AI and about its impact on their job security and working conditions.
The Atlassian case dates to 2019, when Unterwurzacher posted sceptical comments on a company messaging platform in response to an announcement about job title changes, according to the judgeβs ruling.
The company terminated her in June 2023 after two more incidents, including a sarcastic allusion to an Atlassian founderβs partial ownership of the Utah Jazz basketball team. βJust dialling in from my NBA teamβs headquarters to yell at the people whose careers Iβve just pummelled,β she wrote.
At a subsequent meeting with an employee relations official, according to the ruling, Unterwurzacher was told that she had exhibited a pattern of breaking company rules and that her behaviour hadnβt improved after repeated coaching.
Unterwurzacher said in an interview that she hadnβt received any formal coaching β just informal outreach from company officials β and that her comments resembled the kind of employee banter that was common on internal channels.
She said that she believed the company had fired her because it was trying to rein in its culture of openness amid a sharp decline in its share price and that she was known to be outspoken. βI believe they fired me to silence me and to frighten everyone else who was still working at Atlassian to not speak out,β she said.
Atlassian argued that Unterwurzacherβs comment in the third case was especially personal. A spokesperson said that the company had disciplined workers for violating such rules on other occasions, and that it had sought to protect its culture of openness, not rein it in, by cracking down on workers who abused its norms and behaved disrespectfully toward one another.
Unterwurzacher filed a charge with the NLRB after her firing. The agency found merit in the accusation and brought a case against Atlassian.
The judge, Susannah Merritt, concluded that the companyβs rules of conduct were illegal because they could prevent workers from raising legitimate questions about the actions of executives. Unterwurzacherβs comments were protected by law, she said, because they reflected widespread concerns about the companyβs treatment of employees. The judge also noted that other workers had made worse comments than Unterwurzacherβs and had not been fired.
Laurie Burgess, a lawyer who has represented a number of tech workers in NLRB cases, said most tech workers were not aware of their labor rights and never filed charges with the agency. Many NLRB charges are dismissed before the agency issues a complaint, Burgess said.
A handful of tech workersβ cases have gained traction. In 2020, the labor board brought a complaint against Google over the firing of employees involved in protests at the company. The two sides later settled.
A judge ruled in 2019 that Tesla had to reinstate a factory employee it had fired after he engaged in union organising activity, and in 2022, another judge ordered Amazon to reinstate a warehouse worker who had been fired after a protest over safety conditions. Both cases continue to be litigated.
This article originally appeared in The New York Times.
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