A lawsuit claiming Meta ran tests that deliberately degraded performance of its apps in ways that ran down smartphone batteries has been withdrawn after the social network reminded the ex-staffer who brought the case that his contract requires him to take the case to arbitration.
George Hayward, who worked at Meta for over three years between 2019 and 2022 and for a time focused on battery efficiency, alleged [PDF] he was fired from the company for refusing to participate in what it calls “negative testing.”
According to an exhibit [PDF] in the case, alleged to be an internal Meta document called “Running Thoughtful Negative Tests”, the company defines the practice as “a method that measures impact by intentionally degrading some user experiences.”
Negative tests measure impact by intentionally degrading some user experiences
The exhibit cites an example of one test Meta performed to look at the correlation between latency between opening a link and the likelihood a user commented on said link. To do that using the negative test method, Meta employees forced an increase in latency to reach the conclusion “that the probability of commenting actually increases when latency increases below 2s, and reaches peak at 2s.”
In a list of the pros and cons of performing negative tests, Meta said it likes that “we can control image load delay,” but that “long-term implications on engagement” due to user frustration at having their load times adjusted had to be considered.
“If one or more groups are showing worrying negative impacts on critical engagement metrics, we should make good judgments about whether we have enough data (from these or other test groups) to turn them off before the planned date,” Meta suggests in the document.
According to the negative testing document, Meta has used the method a number of times over the years to test things like news feed scroll performance, touch responsiveness, and image load times. The oldest test mentioned is from 2016, suggesting users of Meta’s apps may have seen device and app performance negatively impacted for over five years.
The lawsuit says negative testing is illegal in New York, where Hayward resides and where the suit was filed. Hayward’s lawyers argue that the tests would violate New York laws on criminal tampering that prohibit damaging a person’s property without their consent.
Hayward alleges that he was asked by his supervisor to perform negative tests, which in his role as a data scientist in Messenger’s battery efficiency group would mean intentionally draining the batteries of users’ devices without their consent.
Hayward worried Messenger users whose batteries were drained during tests would be unable to call for help in an emergency, his lawyers argued. In internal messages between Hayward and his supervisor (filed as another exhibit in the case), the ex-Facebooker said as much, [PDF] adding that performing negative tests would open Messenger users to greater risk.
“I’m actually not even sure if this is legal to do with regard to various consumer protection laws. When I was in team selection, I was told again and again that we never do this,” Hayward said in screenshots of the messages.
Hayward alleges that it was shortly after a final communication about the issue in July of last year that retaliation began. His allegations were ignored, he was given new responsibilities that set him up for failure, had reviews rescheduled and canceled at the last minute and was given poor performance ratings despite the suit’s claim that he had uniformly been rated positively in the past.
Arbitration might not stop that whistle from blowing
Hayward was terminated on November 9 last year, which coincided with huge layoffs at Meta. The lawsuit denies it’s a coincidence.
“Meta chose to terminate Hayward as part of an alleged reduction in force to retaliate against him for complaining about Meta’s negative testing. If not for his repeated objections, he would not have been included in the alleged reduction in force,” the suit claims.
The suit, which was filed on January 20, was voluntarily dismissed [PDF] by Hayward’s legal team six days later “in lieu of Meta Platforms. Inc.’s internal arbitration agreement.”
Daniel Kaiser, Hayward’s lawyer in the case, said The Register that his team had no choice but to withdraw the suit because of Meta’s internal arbitration clause, and that he expects talks between the parties to begin shortly.
Kaiser’s firm does not intend to just settle the arbitration. The lawyer told us in an email of plans to file an administrative charge with the Department of Labor alleging that Meta broke whistleblower protection laws by firing Hayward for protected activity.
Under the Sarbanes-Oxley (SOX) Act, which protects whistleblowers at public companies like Meta, employers aren’t allowed to discriminate against their people “because of any lawful act done by the employee.”
We reached out to Meta to hear what he had to say about the allegations, and the response was brief: “Mr Hayward’s claims are without merit.” ®