By Mark F. Kluger and William H. Healey
The only glass that we employment lawyers used to worry about for our clients was in the ceiling. Now the bigger headaches for employers come from head-on collisions with the Glassdoor. For those unfamiliar with Glassdoor.com, it started in 2007 and is a 30 million active user online “employment community,” that provides profiles of companies posted by those who claim to be employees and former employees. The profiles include company reviews, salary reports, CEO ratings and information about the hiring process. All of the content is user created; and that is the practical and legal problem. Anonymous contributors can essentially post whatever they want, leaving employers incredibly vulnerable to attack with minimal recourse.
About a year ago, a law firm, allegedly defamed on Glassdoor, decided to fight back. The firm filed a defamation lawsuit against 25 John Does with the intention of learning their identities through the Subpoena process. The firm focused on 12 specific Glassdoor posts about the firm, 3 of which included the following titles:
“For the love of God, do NOT work here”
“New Admitees Beware”
And our favorite: “Working here is Psychological Torture” – which unfortunately describes every law firm in America, so that one is not defamation.
Although Glassdoor has “community guidelines” for content, they are minimal and protect primarily against hate speech, racist and discriminatory statements, and threats of violence. While employers can request a review of content, Glassdoor promises its users anonymity and protection against retaliation. In a public statement about the Subpoena seeking the identity of the law firm employees, Glassdoor wrote: “It is our standard practice to fight on our users’ behalf to protect their anonymity and rights to free speech…[W]e vigorously fight in court to prevent any user information from being disclosed.”
Sadly, the law firm made the following public statement about those who posted: “Unfortunately, most…are unwilling to recognize their shortcomings and they turn to anonymous blogs to spit their venom. The reality is that they should be upset with their parents for raising lazy and incompetent young adults but they choose to spew false information on…Glassdoor.”
So that might not be the best way to convince a court that the statements about the firm are false, but what do we employment lawyers know about defamation law. We do know this: Glassdoor and similar sites are relatively immune from direct claims for the posts, even if they are defamatory.
The Communications Decency Act, a 1996 federal law designed to regulate online pornography, also specifically exempts “Internet Service Providers” from liability for the defamatory content of the users. In other words, under the CDA, because Glassdoor is not writing or even publishing defamatory statements, it is merely hosting the material, the website is not subject to suit. Glassdoor even advises on the site that it is not in a position to determine whether the content is truthful. An employer’s primary recourse, short of learning the identity of the users, is to appeal to the site for a review if the post violates the community guidelines or write an online response, which Glassdoor will place directly below the post.
In case you are not already thrilled about the prospect of being trashed online without much recourse, last week Glassdoor upped the ante with the help of the EEOC. The federal agency sued a California employer that terminated a transgender employee who was fired after admittedly posting the following statement on Glassdoor: “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…Most management do not know what the word “discrimination” means…”
Although not liking softball is a legitimate, non-discriminatory reason to terminate someone, and we would also like to see that “.7” of a kid, the employer told the transgender employee that he was being terminated because the post showed poor judgment and ethical values. A National Labor Relations Board Administrative Law Judge previously dismissed a case brought by the same employee, rejecting the claim that the Glassdoor post was “concerted protected activity” related to terms and conditions of employment. That judge referred to the post as “a tantrum” and “childish ridicule.” The EEOC case, however, is just starting and the legal issues are different. We will keep an eye on it.
In the last year, we have twice successfully convinced Glassdoor to remove content about two of our clients because of “community guideline” violations. We would be glad to provide counsel on the limited legal and other ways to respond to this new online challenge and equally, if not more important, on strategies to help avoid running into the Glassdoor in the first place.