When hundreds of Wayfair employees walked off the job June 26 to protest the company’s sale of furniture to a migrant detention center in Texas, they brought politics directly into the workplace. It’s not the first time employees have staged a massive protest, and it certainly won’t be the last.
As an employment lawyer, I’ve watched employee groups increasingly use open dissent to change corporate behavior in matters that have nothing to do with their employment or the workplace. Their focus is must larger: corporate responsibility. Last year, Google employees publicly objected to that company’s plan to launch a Chinese search engine that would spy on Chinese citizens. In February, Microsoft workers walked out over their employer’s contract to supply augmented reality headsets for use in weapons systems.
Welcome to the brave new world of free expression for American workers and their employers.
Wayfair employees disagreed with the company’s decision to sell furniture to a private contractor operating a federal detention center housing immigrant children near the border with Mexico. The $200,000 order, on which Wayfair stood to clear about $86,000 in profit, was just another business transaction for the company. For the Wayfair employees staging the protest, it was a stamp of approval for a reprehensible system that separates migrant families and imprisons children.
The employees had earlier signed onto a letter to executives asking the company to halt all current and future business with the government contractor and with other contractors operating migrant detention camps at the southern border. They demanded the company establish a code of ethics for business sales that “empowers Wayfair and its employees to act in accordance with our core values.” The employees also asked the company to donate profits from the sales to RAICES, a nonprofit that provides legal services to immigrants and refugees.
If the Wayfair employees were hoping to be covered by federal law, they’re probably out of luck. Unless Wayfair was breaking the law — which it wasn’t — or the federal government was acting in a way that infringed the workers’ civil rights, the U.S. Constitution offers no protection.
But laws in many states do provide protections for political activities. Such laws may even include “free speech,” “political activity” or “off-duty conduct” protections that give employees rights against private employers not provided by federal law. If employees in those states are fired for protesting, they can assert that they’re being punished for exercising their free speech rights under state law. Wayfair employees may be able to rely on state law if their employer retaliates against them.
This isn’t a matter of Wayfair engaging in illegal activity — it’s in the business of selling furniture — it’s a matter of optics and corporate goodwill. Earlier this year, massive employee protests prompted technology giant Google to do away with forced arbitration in its employment agreements. Arbitration is perfectly legal in the workplace, but Google decided that it didn’t play well in the court of public opinion.
Similar protests have driven changes to arbitration policies at Uber and FaceBook. With sufficient public pressure, Wayfair could find itself moving in this direction with the perfectly legal sale of furniture to the federal government.
The balancing act
The Wayfair protest is, ultimately, a game of chicken. Someone in corporate management runs the numbers to see how much money Wayfair loses for every hour its employees don’t work. They weigh this against the anticipated profit from the contract and factor in the potential cost of a breach of contract claim against the company by the government contractor.
But protesting employees must also consider the costs they pay. Will they lose their jobs? Will they suffer other forms of retaliation? How long can they afford to stay off the job? There is tremendous strength in numbers. It’s highly unlikely that Wayfair will fire the protesting employees: How can it replace and retrain that quickly? Additionally, the size of the protest ratchets up the pressure by putting it on front pages all over the country. The power of a mass protest is a far cry from one or two workers taking a stand.
The power of voices
The Wayfair protest is a clear sign of the times. A decade ago, well before the advent of social media and crowdsourcing, the mobilization of a massive protest in a single day would have been unthinkable. In today’s connected world, people who share a belief system come together instantaneously to drive change.
Protests such as Wayfair, the 99 Percenters and the Amazon carbon footprint will only become more frequent and more powerful as these technologies are harnessed. Individual voices will become megaphones. The smartest businesses will get ahead of the trend by understanding the power of those voices and really listening to stakeholders — whether employees, investors or customers. Companies that fail to respect this power — the ones that blow protests off — will likely be brought to their knees.
Where will Wayfair land?
Ron Zambrano, Litigation Chair of West Coast Employment Lawyers, represents employees in equal pay, workplace discrimination and harassment, wrongful termination, whistleblower protection, wage and hour, and other employment-related claims. Zambrano has won millions in lawsuits on behalf on aggrieved employees from all walks of life and backgrounds, including high-profile cases against the city of Los Angeles, the Long Beach Police Department, the Los Angeles Department of Water and Power, Boeing, Ralphs Supermarket, Carmax, Wells Fargo, Walmart, Macy’s and Curacao.