By Zachary W. Hoyt
Clients often ask our firm how to respond to online comments that disparage them. The internet has provided disgruntled employees a very public and anonymous way to critique their employers, particularly through social media such as Facebook and Twitter, review websites like Yelp or Glassdoor, or comments sections on news articles. There are two primary ways employers can respond to negative online speech: attacking the speech and reprimanding the employee. This article will provide an overview of methods to remove negative online comments and potential issues that could come up when disciplining an employee for making such comments.
Methods of Removing Comments
Having a website voluntarily remove content because of its own policy violations is by far the easiest and fastest way to deal with these problems, but when all else fails litigation is a potential alternative recourse. Forums such as Glassdoor are generally immune from defamation suits under the Communications Decency Act. However, the anonymous speakers are still subject to these actions if their posts are defamatory, that is, the communication tends to harm the reputation of another in a way that lowers their position in the community or deters third persons from associating or dealing with them. This is a long, difficult path, starting with first filing suit against an anonymous poster, followed by getting the court to issue a subpoena to the online service to provide identifying information on the poster, and finally litigating the defamation claims themselves. If successful in court, a judge provides both a remedy against the poster individually and further justification to encourage the website to remove the content in question if the website had previously been reluctant to do so.
Disciplining an Employee for Online Comments
Another method of dealing with online comments from current employees is to discipline the employee directly. Most companies have a social media policy in place that would cover defamatory content, and even if a social media policy is not in place such conduct would likely fall under another policy. While this approach can be the simplest in practice, there are distinct pitfalls to watch out for.
First, employers must be careful not to commit an unfair labor practice under the National Labor Relations Act. Section 7 of the National Labor Relations Act guarantees employees the right to self-organization, to form, join, or assist labor organizations, to collectively bargain, and to engage in “other concerted activities.” At a very basic level, protected concerted activity occurs whenever employees act together to improve their terms and conditions of employment. This is true even without the involvement of a union. The concept of protected concerted activity has seen considerable interest in recent years with the rise of social media as a common method for employees to communicate with each other.
An illustrative example involved a non-unionized sports bar in Connecticut called the Triple Play Sports Bar and Grille. Three D, LLC (Triple Play), 361 NLRB No. 31 (2014). In this case, a former employee posted an update on her personal Facebook page stating “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money … Wtf!!!!” One current employee commented on the post with similar remarks, and another “liked” the original post.Triple Play terminated both of the current employees after it learned of the post. The NLRB found that the current employees were engaged in protected concerted activity. It was protected activity because it related to the terms and conditions of employment, and concerted because it involved more than one employee. In a related issue that is outside the scope of this article, the NLRB also found that Triple Play’s social media policy violated the NLRA because it appeared to forbid protected activity.
Another important issue to watch out for is whether the online speech is protected activity under Title VII or the Americans with Disabilities Act. The Equal Employment Opportunity Commission (EEOC) has made it clear that employers need to be careful before taking action against an employee for online criticisms. The EEOC recently brought suit against educational technology company IXL Learning (“IXL”) in the U.S. District Court for the Northern District of California after IXL Learning terminated an employee for posting negative comments on Glassdoor.com. Adrian Scott Duane, a 32-year-old transgender man, had written a review on the website stating: “There are no politics if you fit in. If you don’t — that is, if you’re not a family-oriented white or Asian straight or mainstream gay person with 1.7 kids who really likes softball – then you’re likely to find yourself on the outside. Treatment in the workplace, in terms of who gets flexible hours, interesting projects, praise, promotions, and a big yearly raise, is different and seems to run right along these characteristics.” IXL HR discovered this negative review the day after it was posted and forward it to the CEO. According to court documents, the CEO confronted Duane about the post and promptly terminated him after he admitted he was the author.
The EEOC filed suit on Duane’s behalf on May 24, alleging that IXL retaliated against him for engaging in protected employment activities. See EEOC v. IXL Learning Inc., Civil #17-CV-02979, Northern District of California. According to the EEOC’s San Francisco District Office director William Tamayo, “Retaliation is the No. 1 basis for charges filed with the EEOC, comprising over 45% filings nationwide,” and “it is a priority to defend employees’ rights to speak out and challenge practices that they believe to be illegal discrimination.”
This case emphasizes the important breadth of Title VII and the ADA. These statutes don’t just prohibit adverse employment actions against someone because of their race, sex, or other characteristic, they also prohibit retaliating against anyone for opposing discrimination. This protected activity is not limited to filing charges with the EEOC or making direct complaints to company management, but also includes complaints in public forums like Glassdoor. While employers understandably want to defend their reputations, they must be careful when doing so because the EEOC has made clear that the law prohibits retaliating against employees who protest discrimination – even when that protest is an indirect complaint in a public forum.