As social media continues to impact consumer decisions—67 percent of people are influenced by online reviews, according to SEO consultancy Moz—some companies are taking legal action against negative reviews on websites
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For example, some have subpoenaed the company review site Glassdoor to reveal the identities of anonymous users who have written posts which, the companies allege, are defamatory or false and could lead to recruitment and retention problems.
But are online reviews a form of protected concerted activity? And are employers that pursue litigation and serve subpoenas for user identities just asking for trouble?
Fighting Fire with Lawsuits
Founded in 2007, Glassdoor is an online database with millions of job listings and anonymous reviews of companies written by current and former employees. They rate CEOs, list salary information, detail how job interviews are conducted and more.
Whether or not employers should respond to Glassdoor reviews has been the topic of much debate.
Charles Lee Mudd Jr., principal at Chicago-based Mudd Law Offices, is representing Stahulak & Associates and Thomas Stahulak in a complaint alleging defamation, false light and tortious interference regarding reviews made on Glassdoor.
Mudd is seeking compensatory damages, punitive damages and injunctive relief for reviews posted on Glassdoor in December 2014 and February 2015. The reviews were about working conditions at the law firm. Mudd says there’s a balance between what is considered free speech and what is posted on the Internet.
“The right to anonymous speech also extends to the Internet and those constitutional principles [of free speech], but at the same time the Constitution does not protect defamation. It does not protect statements that are false or could give rise to other claims, for example, false light or tortious interference,” Mudd said.
Mudd said he finds that people who post anonymously online are often surprised that subpoenas can be issued for their identities.
“I think a first caution to those making comments online is that free speech does not protect all speech, and certainly [not] false statements—if you’re posting any false statements—[then that] can get you into a litigation situation,” he said.
If the Reviews Are True
James R. Redeker, a partner at Philadelphia-based law firm Duane Morris, said that employees’ statements only lose protected status if they are “maliciously false.”
“So almost any way you approach this subject, as long as [the speech] involves terms and conditions of employment and as long as you’re dealing with an employee, an employer is really exposed,” Redeker said.
If the online reviews are true, he added, then that is protected speech. He warned employers that if an employee were to make an anonymous statement, whether in the public media or posted on social media, “that is something that is protected.
“If an employer tried to take action against an employee who it found published something in either social or public media anonymously—and/or published something that was false and misleading—the NLRB [National Labor Relations Board] general counsel and the board take the position that an employee is entitled to and protected in making statements with regard to the working conditions of their employer,” Redeker explained.
He pointed to a 2015 report released by the NLRB highlighting a policy from Wendy’s restaurant chain forbidding employees to “post, comment or blog anonymously.”
The company’s policy read: “You may not e-mail, post, comment or blog anonymously. You may think it is anonymous, but it is most likely traceable to you and the company.”
The NLRB’s general counsel found that “requiring employees to publicly self-identify in order to participate in protected activity imposes an unwarranted burden on Section 7 rights [of the National Labor Relations Act]. Thus, we found this rule banning anonymous comments unlawfully overbroad,” the NLRB report said.
Glassdoor Says It Won’t Shatter User Rights
Glassdoor leaders say they stand behind the site’s users and their right to express opinions about their jobs and work environments without fear of retaliation or the burden of defending themselves in “meritless and frivolous lawsuits.”
Dawn Lyon, vice president of corporate affairs at Glassdoor, said that as the company has grown, they’ve seen an upswing in employer actions attempting to “unmask users and/or suppress reviews left by employees or former employees about their jobs and workplaces.”
She said that in 2015, Glassdoor dealt with hundreds of employers that demanded the company either remove reviews or turn over the identity of the people who left them.
However, Lyon said that Glassdoor’s policy on this is clear: “Glassdoor is an anonymous community and we will vigorously fight on behalf of our users to protect their identities and right to free speech, provided they adhere to our community guidelines and terms of service.”
Review sites like Glassdoor frequently say that the best remedy for employers is to respond to reviews, but Redeker said that’s akin to kicking a hornet’s nest.
“Unfortunately, in this climate with this labor board, the employer has few options. One of those options is to enter into that discussion on social media or in public media, but that’s very unsatisfying. And sometimes it exacerbates the problem,” he cautioned.
Caryn Freeman is a freelance writer and editor based in Washington, D.C.