Employee Relations and Social Media Create a Toxic Mix
Businesses use social media to build their brands. Social media discussions, however, of employee relations issues frequently harm an employer’s brand. For example, recently a soon-to-be former Yelp employee blogged about her impoverished lifestyle because of the Bay Area’s high cost of living and the meager wages that Yelp paid her. She called her post Open Letter to My CEO. Yelp’s CEO then wrote five tweets about the Yelp employee’s post, including one in which he denied any personal responsibility for the decision to fire her and any connection between her blog post and her dismissal. CEO’s Response (see Feb 20 Tweets). In her own Twitter post, however, the employee disputed the CEO’s explanation for her employment’s termination: “[T]he HR lady & my manager straight up told me that the letter violated Yelp’s ‘Terms of Conduct’ and that’s why they had to let me go.” An online controversy ensued between those that supported the employee as a champion of exploited workers and others that viewed her as an entitled Millennial who needed to accept the responsibility for her situation and to overcome it by working more than one job and getting roommates. For an example of the entitled Millennial side of the argument, see Open Letter to Millennials.
The NLRA Protects Non-Union Employees that Voice Complaints About Supervisors,Wages, Benefits, or Working Conditions by Social Media
In any case, the National Labor Relations Act (NLRA) likely protects the Yelp employee’s blog post. The NLRA grants rights to employees in non-union workplaces whose conduct involves “concerted activity.” The law views the activities of two or more employees that concern mutual aid or protection regarding the terms and conditions of employment to be concerted activity. A single employee may also obtain the NLRA’s protection for concerted activity if she acts on behalf of other employees, raises group complaints to the employer, encourages group action, or prepares for group action.
In the case of the Yelp employee, her blog post criticized the low wages and employee benefits that Yelp provided to her and other customer service workers. The employee also made several suggestions for ways that Yelp could generate additional funds to pay higher wages to its customer service employees. In so doing, her blog post likely involved protected, concerted activity under the NLRA. That law also prohibits employers from terminating the employment of employees because of their protected concerted activity.
Later on the same day, the employee added an update to her blog post. Her update stated that Yelp had fired her. Generally, when a termination of employment follows on the heels of protected, concerted activity, the National Labor Relations Board (NLRB) finds that the employer unlawfully fired the employee because of her protected activity.
The NLRB has recognized that in some instances, an employee’s conduct involving protected, concerted activity loses its NLRA protections. For instance, an employer may lawfully discipline or dismiss an employee if her social media posting:
- Discloses the employer’s trade secrets or confidential business information,
- Advocates illegal activity,
- Threatens physical violence against any of the employer’s employees,
- Includes racist or sexist epithets that violate the employer’s unlawful harassment policies,
- Solicits business for one of the employer’s competitors,
- Makes defamatory statements or
- Reveals personal, confidential information about the employer’s customers or employees.
The Yelp employee’s blog post, however, lacked any such statements.
Employers Ought to Exercise Their Right to Remain Silent in Social Media
A short time later, Yelp had another social media quarrel with another employee that blogged about its firing of her. The employee’s boyfriend had suffered an accident on a Saturday that had put him in a hospital’s intensive care unit with a brain injury. The employee had contacted her supervisor immediately to explain her boyfriend’s condition and her need for a few days of unpaid leave time to care for him. She received calls on Monday from her supervisor, her manager, and human resources directing her to report for work that day or to resign. She did neither, and Yelp fired her. Yelp Fired a Single Mother Today: Me.
Yelp posted a Tweet in reply to the former employee’s blog post. It read as follows:
Unfortunately, we had to part ways with [the employee] due to repeated absences (10 of her 59 workdays with Yelp) despite many exceptions to accommodate her needs. We provided multiple, documented warnings and ongoing performance counseling specifically related to reliability and attendance issues. Sadly, this role was just not a good fit. We wish her the best.
The employee posted her own Tweet that disputed Yelp’s explanation of her dismissal. She wrote as follows:
Hey Yelp, can you send over a record of these repeated warnings you speak of? I must have been absent for them. What’s confusing about your Twitter post is that after being told if I came in business would resume as usual as if nothing had happened or I could resign. That’s an interesting option for an employee who isn’t a good fit.
Unlike the “Open Letter” blog post, neither the “Yelp Fired a Single Mother” blog post nor the single mother’s Tweet raises any issues as to protected, concerted activity under the NLRA. Yelp’s Tweet explaining its reasons for firing the second employee and her reply, however, pose other legal issues. If Yelp’s Tweet contains any untrue statements, then the single mother can recover damages for defamation. Yelp’s Tweet, furthermore, may invade her privacy in that it made a public disclosure of private facts. The single mother’s blog post, however, may have waived her privacy rights by its discussion of Yelp’s dismissal of her. If any legal action ensues between Yelp and the employee, anything said in Yelp’s Tweet can and will be held against it.
Yelp’s Experience with Employee Relations by Social Media Teaches Restraint
These two cases give employers reasons to resist any temptation to discuss employee relations issues in social media. Generally, if a worker’s post criticizes supervisors, wages, benefits, or working conditions that affect more than the critic, employers need to hold their fire on any adverse actions against her or him to avoid NRLA liability. Even absent NRLA protected complaints, the risk of liability for defamation or invasion of privacy should temper an employer’s urge to tell its side of the story. Beyond the liability risks, an employer’s social media reply to critical Tweets or posts of employees can only rarely evoke an empathetic emotional response from readers. The employer’s reply merely extends the duration of the outpouring of sympathy to the employee and denunciations of the employer. An employer’s silence about employee relations issues offers the wisest strategy to manage both public relations and liability risks, at least, in social media.
