If you’re a restaurant customer who wants to post about your salty risotto, you can share your grievance on Yelp. If you’re a job-seeker who wants to get the temperature of a company’s morale, salary ranges and management practices, you go to the Yelp of job reviews: Glassdoor.
The popular online jobs site, which launched in 2008, allows employees and former workers to anonymously share their opinions on office snacks (a common “pro”), management practices (“Work/life balance. What balance?”), moods (“big time Kool Aid”) and how they feel after leaving (“Quitting was the best decision I made.”).
But when is your anonymous review against your no-good employer not just personally objectionable, but legally actionable?
HuffPost asked legal experts to explain the risks you take on when posting anonymously about an employer, and the constitutional protections you have.
Yes, an upset employer can seek to sue.
“As a practical matter, there’s very little that stops motivated employers who are upset about bad reviews by their former employees from initiating litigation,” said Aaron Mackey, a staff attorney at the Electronic Frontier Foundation, a digital rights group. The EFF has filed briefs involving Glassdoor in cases that sought to unmask anonymous users on behalf of individuals’ right to anonymous online speech.
In an increasingly litigious nation, though, more employers are using legal action to send a message to employees to watch what they do. “I’m seeing a huge rise in lawsuits against employees by employers for all kinds of things,” said Donna Ballman, a Florida-based employment attorney. “It used to be that employers waited until they were sued before they did anything like that, but now I’m seeing employers being very aggressive.”
Here’s how to share a bad review of your company more safely.
How you tell the story of your workplace experience can mean the difference of whether you get sued successfully. Just stating what you say is an opinion does not make it one. In a defamation claim, courts are determining if what you say is able to be proven true or false — what is a called a “verifiable fact.” One of the key elements in establishing that you’re committing defamation is a false statement of fact.
In its own pro tips guideline given to flagged users who are writing reviews that could be challenged by their employer, Glassdoor offers the example of you noting drug use at a company.
“If you say in your Review that ‘the CEO uses illegal drugs at every work party,’ well, that’s hard to characterize as an opinion. If you say instead ‘it seems to me there is a lot of drug use at my company’ it is much more likely to be considered an opinion,” Glassdoor’s tips page states.
Then there’s your descriptors. Take the case of Vogel v. Felice where the defendant made the alleged defamatory statement of putting the plaintiffs on a list of “Top Ten Dumb Asses.” Taking that as an insult is in the eye of the beholder. We don’t have a standard meaning of what a dumb ass is — it can be said lovingly or to cause offense. In that case, the plaintiffs failed to prove that being called a “dumb ass” was a provable factual proposition.
“There are classic terms and words that have a variety of meanings that are puffery or hyperbole that don’t amount to actually being capable of defaming someone,” Mackey said.
If you want to share your negative workplace experience without defamation risks, “stick to the facts that are truthful and provably truthful or at least not provably false,” Ballman said.
Anonymity online is not guaranteed.
The Supreme Court has repeatedly decided that we have a right to anonymous free speech as protected by the First Amendment. But that doesn’t guarantee your employer can’t find out who you are when posting anonymously.
“There’s nothing that absolutely protects someone’s anonymity,” Mackey said.
In one criminal case, a court ruled that Glassdoor had to comply with a subpoena issued by a grand jury seeking the identities of eight accounts. “Under extremely isolated circumstances and in a minimal amount of cases, Glassdoor has been legally required to share information related to a user’s identity. Meanwhile, we have succeeded in protecting the anonymity of our users leaving reviews in more than 100 cases,” Glassdoor told HuffPost in a statement.
There are also practical considerations if you want to stay anonymous, like how much detail you include. Glassdoor only lets you name names in a limited capacity.
“For those individuals who represent the public face of the company (C-Suite, Execute Director, President, Owner, Founder, etc.), we allow any comments (both positive and negative) to be mentioned in a review as long as it is related to the individual’s behavior or performance at work,” Glassdoor said in a statement.
But you should still be smart about how much you disclose in a review that could still out you. Think about the timing, Ballman suggested: “Don’t do it the day or so after you get fired. You should wait till you cool off, anyhow. Think carefully about what you post before you post; don’t post in anger.”
Ballman advised drafting what you want to post, so you can get a gut check from a trusted outside perspective like a family member “that you trust to make sure that you haven’t done anything ridiculous, and to make sure you haven’t identified yourself in some way.”
More and more employers fight back with what you signed on the dotted line.
The contractual agreements you sign when you onboard as an employee are being used as an additional tool to silence negative feedback from employees. “A lot of employers are now moving to making claims around either violations of nondisclosure agreements that employees signed or trade secret claims,” Mackey said.
Take the former Theranos employees who sought to come forward about the blood-testing company’s fraudulent practices. Theranos alleged that one of its anonymous whistleblowers was disclosing “trade secrets” and threatened to sue if she didn’t stop. In that case, the threats did not stop the truth about Theranos from eventually coming out, but it demonstrates the legal tactics bad employers can use to keep you from sharing the truth to the world.
In these cases, Mackey said that a lot of the purposes for why employers may want to unmask these individuals is not because they’re after people telling something they shouldn’t be telling about the confidentiality of the business, “they’re doing it to punish someone, to intimidate them, to harass them and to make them silent, when they would otherwise speak out.”
Ballman said employees who want to write a negative, anonymous review about their employer need to be careful what they sign when they part with a company too. “If you signed a severance agreement saying you’re not going to disparage the company, which severance agreements now do have, you can be in breach and they can sue you,” Ballman said.
Watch out for the digital tracks that can give you away.
You may not be using a fake name when talking badly about your employer, but your technology can still reveal who you are. Anonymous bloggers have been revealed by third-party software like Google Analytics, for example.
IP addresses, which are “basically the destination for all of your traffic online” as Mackey describes it, can reveal potentially identifying details about who you are, like where you are roughly located and what internet service provider you use. The EFF has a detailed guide about how you can anonymize your internet traffic. One basic tip is using a Tor browser that redirects your internet connection and makes it harder for people to discover where you’re connecting from.
What’s the value of an honest anonymous review of your employer?
These legal, practical and technical cautions are not to signal that you shouldn’t ever leave an anonymous review about your bad boss and unethical colleagues. Telling truthful statements about what you observed at a workplace is protected speech in America. Many a job-seeker has been saved from a bad situation by first peeking at an employer’s reviews.
“The safest thing is to dispassionately discuss what you’ve observed and share your opinion,” Mackey said.
“For defamation, truth is a defense, but can you prove truth? Can they argue it’s not true?” Ballman said are questions employees should keep in mind.