Should a Worker Be Fired for Calling Her CEO Stingy?

A Yelp employee’s dismissal raises questions about free speech

By Dana Wilkie Feb 24, 2016
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The recent firing of a Yelp employee after she criticized her CEO in a blog post—a post that the company conceded was “an important example of freedom of speech”—raises the question of whether that freedom should have protected the worker from being discharged.

Late last week, Yelp customer service agent Talia Jane wrote an open letter to Yelp CEO Jeremy Stoppelman on the blog-publishing platform Medium. She complained that wages were so low in her division that she had to spend most of her money on rent in the high-priced San Francisco Bay area and often went hungry.

“Every single one of my coworkers is struggling,” wrote Talia Jane—which is not her full name because she asked reporters not to identify her. “They’re taking side jobs, they’re living at home. One of them started a GoFundMe because she couldn’t pay her rent. Another guy who got hired, and ultimately let go, was undoubtedly homeless.”

A couple of hours after she published the blog post, Talia Jane—who claimed to be earning $8.15 an hour after taxes—wrote on Twitter that the Yelp Eat24 food-ordering subsidiary where she worked had fired her.

“We do not comment on personnel or compensation matters,” said Rachel Walker, senior public relations manager for Yelp, a publicly traded company with a $1.38 billion market cap that bought Eat24 in 2015 for $124 million. “However, we did agree with many of the points in her Medium post and thought it served as an important example of freedom of speech.”

Walker did not respond to an e-mail from SHRM Online asking why, if the post was an important example of free speech, Talia Jane was fired.

Not Cut and Dried

Legal experts acknowledge that it can be tricky determining whether federal law protects a worker from being fired if she publicly criticizes her employer.

The National Labor Relations Act (NLRA), as well as some state and local laws, can restrict employers from taking adverse employment action against a worker who engages in “protected concerted activity.” Such activity can include any discussion of terms and conditions of employment, including public opinions that criticize a boss or management in general; that comment on wages or benefits; or that complain or comment about work-related expectations, demands or conditions, said Sonya Rosenberg, an attorney with Neal Gerber & Eisenberg in Chicago.

Even if such opinions appear offensive and inappropriate to higher-ups, she said, the sharing of those opinions could be protected under the NLRA.

However, whether such speech is protected also can depend on if it amounted to an individual’s lone complaint or a collective complaint on behalf of other employees, said Michael Schmidt, an attorney with Cozen O’Connor in New York City.

“Key to the analysis will be the nature and content of the speech or conduct, as well as whether the employee engaged in the speech or conduct alone as an individual gripe or otherwise sought to get co-workers involved in collective expression,” he said.

He said a termination based on an employee’s criticism of her employer is less likely to pass muster under the NLRA if:

  • The employee is engaging in the speech collectively with other co-workers or is engaging in the speech or conduct with the intent or hope of getting other co-workers involved.
  •  The speech is related to the terms and conditions of the employee’s work or work environment.
  •  The speech is not so disloyal, reckless or malicious that it is deemed to fall outside the scope of the NLRA’s protections.

 “If one or more of these elements is not present, and particularly if the employee’s speech or conduct amounts to nothing more than an individual [complaint] about an issue that that employee has herself, there is less likely to be a prohibition on termination, at least under the NLRA,” Schmidt said.

 Rosenberg agreed that the “collective” nature of the complaint is often examined to determine whether it’s protected speech.

 “Questions and legal issues may arise where a post goes beyond being just an individual rant to allow for reasonable interpretation [that it is] an attempt with or on behalf of the company’s employees to express concerns about low wages or poor working conditions,” she said.

 Erin Dougherty Foley, an attorney with Seyfarth Shaw in Chicago, said the National Labor Relations Board’s (NLRB’s) past opinions on protected concerted activity make this analysis difficult.

 “The NLRB has provided some, but not entirely clear, direction on when activity might be protected under the NLRA,” she said. “It’s entirely based on the context of what was said and where it was said and probably why it was said. [Jane is] talking about wages, but is her open letter a personal gripe or a call to action? Here, too, there are enough variables in the equation that forming an opinion is difficult.”

 Factors for Dismissal

 Christina Stoneburner, an attorney with Fox Rothschild in Roseland, N.J., told SHRM Online in 2015 that when determining whether to discipline an employee for a tweet, for example, supervisors can consider several factors:

  •  Does the tweet disclose trade secrets or confidential proprietary business information?
  •  Does it reference or advocate illegal activity?
  •  Does it threaten physical violence against any company employee?
  •  Does it contain language that could be viewed as racist or sexist or as otherwise violating the company’s harassment policies? Is the tweet soliciting work for a competitor or someone other than the employer, and, if so, does that violate a restrictive covenant or conflict-of-interest policy?
  •  Is the tweet defamatory?
  •  Does the tweet disclose personal, confidential information about customers or employees, such as bank account information, Social Security numbers, attorney/client information, or health information protected by the Health Insurance Portability and Accountability Act?

If the answer to any of these is “yes,” then an employer can probably discipline the employee for the tweet, Stoneburner said.

Some suggest, however, that unless the situation warrants immediate action—for example, if a public criticism includes a specific threat of violence—there should always be an investigation before taking adverse action against a worker.

“It is extremely important for the employer to review all relevant facts and circumstances pertaining to the employee and to consult with employment counsel to be sure the particular decision is justified and lawful,” Rosenberg said.

Dana Wilkie is an online editor/manager for SHRM. 

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