These days, prospective employees have access to surprising amounts of information regarding what it looks like to work for a company. From reviews posted on Glassdoor to entire subreddits detailing their time at work, current and former employees are sharing information about their employment experiences. What can an employer do when it receives a negative review about its workplace?
Before exploring what can be done about negative reviews, let’s put employee speech into its legal context. As you may know, private employers are not restricted by the First Amendment’s guarantee of freedom of speech, which applies only to public entities. However, there are labor regulations that impact what private employers can do in response to employee speech. Most employers are aware that current and former employees are protected when they make complaints regarding what they believe in good faith to be a violation of law, rule, or regulation (such as a wage complaint), but the law’s protections go even further than this.
Current and former employees of private employers have broad protection under the National Labor Relations Act (NLRA) for statements made about the terms and conditions of their employment that could be considered related to concerted activity. This broadly prohibits private employers from entering confidentiality and non-disparagement agreements with their current or former employees. These restrictions do not apply to limiting disclosure of trade secrets or proprietary information, and apply only to “employees” as that term is defined in the NLRA. But, generally speaking, employers cannot attempt to discourage employees from making statements about their employment unless the statements are defamatory.
Let’s consider some examples of employee speech. What if a former employee posts a review of the employer detailing exactly how much they were paid and also stating that they were micro-managed and subjected to a hostile work environment? A disclosure of their compensation, plus the vague negative remarks, are protected. An attempt to silence this employee would likely violate the law. Compare that situation with a review from a former employee who falsely claims that their former employer defrauds its customers. If the claim was true, then the employee’s statements would be protected under the NLRA, and not defamatory. However, because they are false, the employee’s statements are unprotected, and could subject the individual to liability for defamation or defamation per se.
So, what should an employer facing these kinds of negative comments do? First, employers should consider investigating the claims to confirm they are false. Assuming there is no basis for the false review, then the employer can proceed in taking action to mitigate the damage from these statements. Next, employers should consider contacting whichever site the review has been posted on and request that it be removed. Some sites, such as Glassdoor, may even modify a company’s profile to indicate that the company is attempting to moderate its reviews, which can have its own negative reputational implications. After employers have exhausted those initial options, they should consider action directed at whomever posted the false review.
An initial hurdle in dealing with a negative review is identifying who posted it. While social media posts are frequently traceable back to an individual based solely off their handle or username, some websites allow for anonymous reviews. Theoretically, the website should have data that identifies who posted a review, whether it is an email address associated with the review or the IP address it originated from. Most sites do not want to volunteer that information and could only be compelled to do so through litigation, whether directed at the website itself or the John Doe who posted the review. Depending on the gravity of the defamatory review, employers may be warranted in pursuing litigation to identify whoever has defamed them.
If, however, the identity of an individual is known, employers have more clear-cut options. What if the person who posted the review is a current employee? If the employee’s statement is not protected, then the employee may generally be disciplined. However, the best practice in that situation would be to consult with legal counsel to identify any risks before taking action against an employee. Additionally, rather than simply disciplining the employee and moving on, employers should consider whether they can resolve the employee’s concerns and get them to voluntarily retract their statement.
Now let’s assume that the negative review was left by an identified former employee. The first recommended action is sending a cease-and-desist letter, coupled with a demand that the former employee retract their statement. Employers should be prepared for the letter to become public, as there is nothing restricting individuals from sharing it on social media. If an individual refuses to retract their statement, then an employer will want to carefully weigh the cost of pursuing litigation to exonerate themselves. A lower-cost alternative is to respond directly to the review on whichever forum it has been posted, clarifying that the review is false.
Ultimately, each situation differs in what is at stake for employers depending on the content of a review. While negative reviews may ruffle feathers, they can be overcome by employing the methods above and striving to provide a positive workplace. The words of a disgruntled employee may seem loud, but the praise of other team members will likely outweigh them in the long run.
Nick Ball is an attorney with Barran Liebman.