Friday, August 11, 2023
Weekend Frivolity: A Contracts Hypo from the X-Man (Formerly the Chief Twit)
This year, I think I may spin out some unilateral contract hypos with the help of this tweet
We can start by asking whether or not it is a real offer. Is it sufficiently clear and definite? I suppose we might wonder what it means to be "unfairly treated" by one's employer and who gets to determine what treatment counts as "unfair." To whom is the tweet addressed? Who is "we"? Is it Mr. Musk, using the royal "we"? Is it Twitter (no, I'm not going to call it "X")? The use of "we" makes it seem like it is the corporation that is making the offer, but doesn't the corporation have its own Twitter account? No limit? Really? At what point and through what means could it be effectively withdrawn?
Then we can imagine some scenarios . . . .
- Can a party accept this offer if they worked for a private business and were disciplined when their employers discovered that they were behind a notorious website that made fun of the business and cost it millions in good will losses? What if they weren't formally disciplined but everybody was cool and distant?
- Can a party accept this offer if they had a government job and were disciplined when it was discovered that they were aggressively posting criticisms of the government under a pseudonym?
- Can a party accept this offer if they work for Tesla, SpaceX, or post-Musk Twitter?
- Can a party accept this offer if they had signed a non-disparagement clause that specifically prohibited posting anything on social media critical of the employer?
- What if your employment is at will? What if the "unfair treatment" is that your contract was not renewed?
Evidentiary issues are likely to arise. Would an employer be so unwary of potential First Amendment issues that it would say something along the lines of "we are disciplining you because of what we found on your social media accounts?" Even if there were some discussion of social media accounts, couldn't an employer always claim that there were other grounds for the discipline? So who has the burden of establishing, for the purposes of the offer that the "unfair treatment" was "due to"?
Finally, or perhaps this comes first, there is no cause of action for being treated unfairly by one's employer. I have been an employee in many settings. From time to time, in every setting, I have felt that I was treated unfairly by my employer, as did many of my peers. Perhaps I have a very well-developed sensitivity to unfair treatment. Nevertheless, in none of those situations did I choose to bring legal action against my employer. Mr. Musk's tweet can be a game-changer for people like me.
So what if I contacted Mr. Musk and accepted his offer. No, I was not planning on initiating a legal action against my employer. I'm not sure what my cause of action would be, but I do post on social media in ways that my employer doesn't like, and as a result, I think people shun me, and the bosses pass me over for promotions. Is Mr. Musk obligated to assemble a legal team and fund my legal bill without limit?
https://lawprofessors.typepad.com/contractsprof_blog/2023/08/a-contracts-hypo-from-the-x-man-formerly-the-chief-twit.html