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Tesla reopened its plant in recent days in defiance of county orders.

Photo: David Butow/Corbis via Getty Images
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Tesla’s reopening may be a spectacle, but it's also a warning for Silicon Valley

Elon Musk's decision to defy government COVID-19 orders magnifies the rising stakes of employee backlash and looming clashes over liability.

Just before 1 a.m. on Tuesday, Elon Musk sent an email to Tesla employees. The subject line: "Thank You." It was directed to the thousands of workers who had gotten the automaker's Silicon Valley factory back up and running over the weekend as Musk lashed out at regulators and his lawyers worked overtime on a lawsuit against the factory's home of Alameda County, which hadn't consented to the reopening.

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"It is so cool seeing the factory come back to life, and you are making it happen," Musk wrote in the email, provided to Protocol by a worker at the Fremont plant. "I have vastly more respect for someone who takes pride in doing a good job, whatever the profession, than some rich or famous person who does nothing useful."

For many Tesla workers trying to make sense of several days of mixed messages about when and how they are expected to go back to work, it was just another moment of disbelief. "I'm not sure he grasps the concept of irony," said one Fremont worker, who makes seats and asked to remain anonymous to protect his job.

While the political and PR circus surrounding the impulsive CEO's decision to defy shutdown orders could hardly be more unique, Tesla's restart is a test case for the tech world as well as a spectacle, for better or worse. It's the first major back-to-work effort in Silicon Valley, and Twitter theatrics aside, the process is giving other companies a preview of the challenges and risks: fast-evolving standards for employee protections and health screening, the heightened stakes of worker backlash, tense partisan politics, and a shifting regulatory climate for firms used to dictating their own terms.

Tech executives, investors and workers are debating whether Musk went too far with his "Bro-sa Parks" call for local officials to arrest him first if they shut down the factory, and his threat to move California jobs to Nevada or Texas. To some, it's a logical pandemic-era extension of Musk's track recordonce admired by fellow CEOs like Jeff Bezos — of successfully extracting valuable incentives from government officials eager to boost their economies. To others, the question was whether his alignment with the "open it up" movement might alienate the progressives who love his electric cars.

The latest development came late Tuesday night, when Alameda County officials released a statement saying they had received Tesla's COVID-19 plan for the factory, had asked the company for additional safeguards, and had agreed it could "begin to augment" basic operations "in preparation for possible reopening as soon as next week." The county did not comment on reports that Tesla had already reopened.

The ordeal opens a new chapter in Silicon Valley's fraught history of corporate citizenship: Will more companies join Musk in crafting alternatives to government guidance, as they have on issues like "disrupting" commuter mass transit systems, or will they follow the rules and deploy technologies in ways that curb the virus without infringing on workers' privacy and safety?

"I have heard companies saying, 'This is killing us,' but it's a dialogue," said Russell Hancock, president and CEO of think tank Joint Venture Silicon Valley, which has worked with tech companies on thorny issues such as transportation and housing. "Nobody's saying, 'To hell with this, and I'm going to sue you,' except for Elon Musk."

As the car plant hummed along Tuesday, other tech leaders plotted the future of workplaces that are almost universally more flexible than Tesla's. Jack Dorsey announced a permanent shift to remote work for some Twitter employees, though it remains unclear what will become of server maintenance crews and others who could return to offices around September. A similar dilemma is playing out at Facebook, where Mark Zuckerberg has said most office workers will have the option to work from home for the rest of 2020, but the company is still trying to adapt roles like content moderation to a remote context.

If Tesla can operate without the virus spreading on its production line or in its workers' commute shuttles, it may give confidence to other big companies. But it all looks a lot like a breaking point to former Google employee and walkout organizer Meredith Whittaker, a research scientist and co-founder of New York University's AI Now initiative. After watching tech industry tension foment in recent years over issues like secret sexual harassment settlements and mistreatment of contractors, she sees companies like Tesla at the center of a looming post-COVID-19 reckoning.

More workers are speaking out about safety concerns, and politicians like Lorena Gonzalez, the Democratic state Assemblywoman from San Diego, are attacking Musk and other tech billionaires for "severe safety issues" and union-busting. On the other hand, there's the Valley's enduring libertarian ethos and the influence of luminaries like Musk and former Google CEO Eric Schmidt, who has reinvented himself as a defense-industry tech liaison and urged governments to expedite R&D on artificial intelligence despite concerns about impacts on workers.

"We're seeing government power pulled and pushed in different directions," Whittaker said. "I don't think it is safe to wait on the sidelines and let them do the job for workers."

Labor and liability

Though Tesla's Fremont assembly line is highly automated, more than 10,000 workers still toil alongside robotic arms designed to expedite production. Three employees told Protocol that they often work in crowded work areas or on the same car at once, and that 6 feet of social distance is nearly impossible to enforce at all times on the fast-moving factory line.

In a 38-page internal plan for reopening the plant, released this week, Tesla made no mention of broad COVID-19 testing, as some other tech companies have proposed. Tesla — which has not responded to interview requests during its conflict with authorities in recent months — said it plans to check temperatures, close common areas like break rooms and ask workers to self-certify that they have no virus symptoms.

On Monday, the company recalled all furloughed factory workers in an email, telling them they could opt to stay home if they still had concerns, though they would be unpaid and their decision could affect their eligibility for unemployment. One Model 3 assembly worker told Protocol he planned to follow instructions and go back to work late this week. The worker who builds seats said he will take unpaid leave due to concern about whether the company is doing enough to stop the spread of the virus, and is uncertain about his future with Tesla after talking with a co-worker about Musk's threat to move jobs out of state.

"We are both actively looking for new jobs," the worker said. "We don't know the veracity of that claim and don't want to just suddenly lose our jobs and benefits because Elon is being a child about all this."

Elon Musk In reopening Tesla's vehicle factory, Elon Musk defied county officials, confused workers, infuriated a California lawmaker and garnered support from President Trump. Photo: Patrick T. Fallon/Bloomberg via Getty Images

Exactly what kinds of safeguards will hold up to legal scrutiny in the event of virus spread in a factory or office setting is one major question for workplace consultants like Mike Gleason. The Chicago-based partner at business IT firm Netrix is advising clients of all sizes to invest time in writing clear back-to-work policies and consider adopting technical systems for things like occupancy tracking.

"This is all about putting in place platforms to protect yourself," Gleason said. He's advising clients that in the absence of detailed data and policies for reopening offices, "a lawyer's just going to sit there and froth at the mouth."

Earlier this month, California Gov. Gavin Newsom also opened the door for employees diagnosed with COVID-19 on the job to file for worker's compensation claims. But legal experts expect employers to challenge the executive order.

Though Tesla has successfully fended off past attempts by the United Auto Workers to unionize its factories, Whittaker is intrigued by the way white-collar tech workers at Amazon and Uber are "organizing along the supply chain" by aligning themselves with warehouse workers or contract drivers. But she's wary of how such efforts could be stunted by COVID-19 tracking systems, like a machine learning surveillance system rolled out by Amazon as a way to spot workers getting within 6 feet of each other.

"What does that also do?" Whittaker said. "That detects workers meeting in groups, potentially talking about shared grievances, all sorts of things."

Catherine Fisk, an employment law professor at UC Berkeley School of Law, noted that companies often fail to address lower-wage workers in "19th and 20th century" manufacturing and service jobs within their ever-expanding ranks. To account for that variation, one reopening approach favored by labor advocates is for companies to convene task forces with all workers represented and protected from retaliation. Though some economists predict that increasing unemployment and automation could have a chilling effect on labor organizing, Fisk said economic desperation has historically fueled such movements.

"The same factors that led to massive unionization in the 1930s, we may see again," Fisk said. Referring to newer-wave tech organizing groups like Amazon Employees for Climate Justice, Googlers for Ending Forced Arbitration or the Tech Workers Coalition, she said, "You don't have to call it a union."

Playing politics

In the flurry of sometimes-profane social media posts and frantic press releases that have defined Tesla's reopening fight in Silicon Valley — Assemblywoman Gonzalez tweeted, "F*ck Elon Musk," and President Trump weighed in Tuesday to say California "should let Tesla & @elonmusk open the plant, NOW" — one unavoidable question is how governments plan to respond to open defiance.

Alameda County started working with Tesla on a reopening plan on April 30, according to a statement from a spokeswoman for the county's public health agency. Despite Musk's professed willingness to be arrested, the county sheriff referred questions to that agency, and the spokeswoman, Neetu Balram, said on Monday that the county hoped Tesla would "comply without further enforcement measures."

Then came Tuesday night's update, which said health officials "will be working with the Fremont Police Department to verify Tesla is adhering to physical distancing and that agreed upon health and safety measures are in place for the safety of their workers as they prepare for full production." County agencies have declined repeated requests for interviews or details about how it was responding to Tesla's violation of shelter-in-place orders.

The back-and-forth has highlighted the levels of guidance that companies are expected to consider in reopening facilities. Tesla officials said they believed they were bound by state rules and county guidance that permitted "distributed energy resource manufacturing." The county said Tesla was in violation of local orders, and was getting ahead of the process for reopening. Meanwhile, Fremont Mayor Lily Mei supported the company, which has a long-term plan to double the size of its local factory.

"I am growing concerned about the potential implications for our regional economy," Mei said in a statement. "As we have done for over a decade, the city is prepared to support Tesla as soon as they are able to resume automobile manufacturing operations and are committed to a thoughtful, balanced approach to this effort."

At Joint Venture Silicon Valley, Hancock hopes that other tech companies will strike a more conciliatory tone in reopening, and that there will be opportunities for deep collaboration between companies and local governments in the coming months. Multiple regional agencies have convened bodies to encourage ongoing remote work, which could ease nightmare commutes as offices reopen.

Hancock is less worried by threats — like Musk's latest — to move jobs to lower-taxed, less-regulated pastures. For years, he said, those same locales have tried and failed to chip away at Silicon Valley's dominance.

"Lots of people put up billboards on 101 or put ads on buses," he said. "Historically, it has amounted to nothing."

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