Damage to an organization’s reputation is always a major issue, and anything that hurts an employer’s ability to attract talent during the ongoing Great Resignation is particularly critical. One annoying question is how to deal with negative reviews about the employer posted by employees or former employees on sites like Glassdoor that guarantee the anonymity of posts.
A company’s right to compensation lies primarily in state law claims for defamation and possibly those for violation of non-compliance clauses in dismissal agreements. The public policy issue in both types of claims involves weighing the right of employers to protect their reputations against the right of employees to freedom of expression and privacy. It can be a difficult balance to hit.
Slander is generally defined as false verbal (slander) or written (slander) communication that damages another’s reputation in the community or discourages others from associating with them. The percentage of slander states that going to trial is small; among those who do, judicial opinions having precedent value are rarer. For these reasons, defamatory claims are best handled by counsel who are experienced in the pleading and practical aspects of personal injury lawsuits of this nature in the state concerned.
Aaron Morris, a lawyer with Morris & Stone in Orange County, California, is one such expert, representing plaintiffs in libel cases for decades. Even he does not urge to hurry to court; rather, he recommends trying an informal approach first.
“If you get a bad review from Glassdoor, you want to do something about it,” Morris says. But don’t expect Glassdoor to easily get rid of it. The purpose of these sites is to show negative and positive reviews, so they wouldn’t do much if they removed all the bad reviews.
Even a well-founded slander claim against an anonymous poster requires jumping through many rings.
However, Sara Bradley, a lawyer with Neumann Law in San Diego, thinks there is room for early lawyer-to-lawyer contact. After HR finds an incorrect or fraudulent post, a letter from an attorney explaining why the claims in the review are false could persuade a website to remove it.
If the website refuses to remove the review, the employer may respond to it online in a measured and indefensible manner. Thank the reviewer for the suggestions, then explain why the review is inaccurate for most employees.
Another approach is to water down a bad review. If a restaurant has 50 positive reviews from Yelp, one bad or false review won’t do much harm, Morris says. But if an employer has three good reviews and one bad one, the potential for harm is much greater. If a company knows its employees are generally happy and wants to see the business do well, Morris suggests asking them to provide a balance sheet by posting more accurate reviews – without suggesting a threat or a promise of reward, of course.
If none of these approaches work, it may be time to consider a libel lawsuit — but only if the bad review is “verifiably false,” Morris says. A review that says a company has “the worst managers,” for example, would be considered an opinion. A review claiming that a company is behind in payroll or not paying overtime involves facts that are easily verified.
Points of Law
In the United States, a provision of the Communications Decency Act prohibits courts from treating providers of web services, social media platforms and web hosts as the publishers of content provided by others, thus isolating them from defamation claims involving statements made by third parties.
The formal elements of contracts and personal injuries vary from state to state. But the relative scarcity of mandatory precedent in online slanderous claims against anonymous posts makes any relevant opinion worthy of attention. Here is one:
In ZL Technologies Inc. v. Is 1-7, A California appellate court ruled in 2017 that ZL was allowed to know the identities of several anonymous Glassdoor posters because the employees’ posters included factual claims that could form a legally sufficient basis for ZL’s libel case. —MMC
Playing the Long Game
Even a well-founded slander claim against an anonymous poster requires jumping through many rings before receiving any help, Morris says.
After filing a suit, the company must begin “discovery” for the review site to identify the anonymous post. The reviewer will object, and the employer will then respond with a motion. If the motion is granted, the information produced is likely to consist only of an IP address. The company will then have to call the relevant web service provider to obtain the identity of the poster.
Once the employer knows the identity of the poster, a compromise is simple in most cases, Morris says.
At that point, the company would offer a conditional trial – which becomes a binding court – in which the poster admits to making “false and defamatory” statements and agrees to remove the offensive mail.
An emerging approach to tackling the problem of bad internet reviews is to seek enforcement of non-slavery deals that include non-compliance clauses.
Even a lawsuit that is settled at an early stage is costly.
Any employer that experiences false reviews might consider the possibility of a single angry individual creating multiple accounts and posting as many reviews as possible under different screen names. Discovering that several reviews came from the same IP address answers that question.
Otherwise, Morris says, the employer has to face the more difficult question: What motivates employees to go out there and write these fake reviews?
Margaret M. Clark, JD, SHRM-SCP, is a freelance writer in Arlington, Va.
Illustration by Adam Niklewicz for HR Magazine.