Yelp, I need somebody

Yelp, not just anybody

Yelp, you know I need someone

Yelp!

My apologies to the Beatles. But the notion that one can’t do it alone and expect to be protected, may just be an apt moral in today’s world of social media and employment law.

Yelp was founded in 2004 to help people find local businesses, and then review those that they use. Apparently, Yelp itself is not immune to criticism by its own employees. A Yelp employee just posted an open letter on “Medium,” an alternative blogging platform launched in 2012 for anyone who has anything to say. The open letter was directed at Yelp’s CEO, and complained about the employee having to work in customer service for a year before being able to move into another position, and how she could not afford food or rent on a $733 biweekly wage in San Francisco. Shortly after the open letter was posted, the employee was fired.

Yelp me if you can, I’m feeling down

And I do appreciate you being ‘round

Yelp me get my feet back on the ground

Won’t you please, please yelp me?

It’s not the intent here to comment on the pros and cons of pay equity, or the proposed rise in minimum wage in certain parts of the country, or even whether this particular employee in her particular circumstances had a valid gripe. For present purposes, it is simply worth noting that the fatal flaw in her case may just be that her open letter seems to relate to an individual gripe that she had with her employer, rather than a conversation engaged in collectively with other co-workers or one that was intended to solicit co-workers to join in collective activity. In other words, she apparently had no help with her yelp.

Given that Yelp is a private employer, this employee won’t get much mileage out of a general “free speech” argument. The protections afforded in the Constitution do not apply to non-state actors. And as far as the National Labor Relations Act (“Act”) and the NLRB go, she also might not find success there if she challenges her termination. As avid readers of this blog know well by now, while the Act protects concerted activity concerning wages and the terms and conditions of one’s workplace, the threshold requirement is that that activity must be concerted in the first instance. Since there do not appear to be any statements being made in concert, this employee may be out of luck without having sung:

Yelp, I need somebody

Yelp, not just anybody

Yelp, you know I need someone

Yelp!

Employer Take Away: What should you as an employer take away from this development?

Employers do feel sometimes that the law is trending so far against them that there is nothing they can do to discipline or terminate otherwise at-will employees. That is not necessarily true, though the takeaway continues to be that employers must analyze particular circumstances on a case-by-case basis, keeping in mind certain general parameters that are starting to be developed in social media and employment law. Depending on the public/private status of the employer, federal or state constitutions may or may not apply, just as certain statutes such as the Act may or may not apply depending on who engaged in the activity and the nature of the activity itself.

Careful analysis is needed before taking any adverse employment action against an employee. Employers are also wise to make sure their analysis is not limited to one or two of the “well-known” sources of legal obligations, but takes into account the myriad of employment laws that may have some applicability to the situation. In the end, employers may be able to take adverse action based on an employee’s statement or conduct. But first, employers should seek the appropriate yelp.