Seyfarth Synopsis: Even if bad Glassdoor reviews have you feeling like you need to fight back, employers should stay out of the ring, and instead implement social media policies that clearly define prohibited behavior and disclosures, while spelling out the consequences for violations. Employers must not retaliate against employees for their lawful out-of-office behavior.

People are used to sharing everything about their lives—from what they ate for breakfast to the funny name on their Starbucks Frappuccino. But this behavior can be scary for employers when current and former employees take to social media to complain about their jobs—or even defame their boss. Of particular interest are online platforms such as Glassdoor, which purport to provide “inside” information about working conditions, salaries, and company culture.

So what can an employer do when an employee posts a negative comment on Glassdoor about the company? The answer is … not much. The law often protects an employee’s off-duty speech. But the law does not protect defamatory speech, and it does not protect the disclosure of confidential, protected information. So proactive employers can take steps to make sure they are not unfairly smeared online and that their trade secrets are protected. We have a few suggestions in that regard.

What Are You Tryin’ To Prove: Don’t Get In The Ring

Websites such as Glassdoor, which has about 30 million monthly users, allow current and former employees to criticize or praise a company, typically through anonymous posts. Though many such sites screen critiques to prevent the posting of offensive comments and those that would disclose private information, they nonetheless present a conundrum for employers: Do you ignore criticism—even if it’s false—or do you respond to it? The former tactic can permit damage to an employer brand to go unchecked; the latter can make an employer look defensive.

In this new age of information, job applicants search employer review sites for information about companies. Responding to a negative review can help your brand if you do so in a way that shows the organization is genuinely committed to improving. But a response could also provide more fodder for further negativity, so it’s best to try to get ahead of the problem by making changes in-house, if necessary.

If your employees are posting on social media outside of working hours, California’s constitutional right to privacy can protect them from retaliation. Labor Code section 96(k) protects employees where they have engaged in lawful conduct asserting “recognized constitutional rights,” such as free speech postings on social media, occurring during nonworking hours away from the employer’s premises. A better avenue is to get ahead of the problem and educate employees about what they can and can’t post online about the company.

Put Your Robe On—And Implement a Social Media Policy

You can restrict free speech online for current employees with a social media policy (but only up to a point!). Employers should have a social media policy that prohibits posting confidential information about the company (and perhaps about posting anything about the company at all) without permission from the company’s public relations group. Every employee is required to follow the company’s legally compliant policies even if they are stricter than what the law would otherwise allow. If an employee violates your policies, that employee could be subject to employment discipline up to and including termination.

That said, there are limits to the restrictions employers can place on what employees can say about them online. The National Labor Relations Act protects the rights of workers to discuss wages and working conditions with other workers. These protections apply to posts on social media, so your social media policy cannot prevent employees from communicating with other employees online about the company’s pay or working conditions, such as might be the case with a Glassdoor review.

For example, in analyzing one company’s social media policy that forbade employees from making anonymous posts about the company online, the NLRB’s general counsel found that “requiring employees to publicly self-identify in order to participate in protected activity imposes an unwarranted burden on Section 7 rights [of the National Labor Relations Act]. Thus, we found this rule banning anonymous comments unlawfully overbroad.”

You Never Got Me Down—Employers’ One-Two Punch Combo for Dealing with Social Media

  • It is prudent for employers to prepare and implement a social media in the workplace policy in order to avoid risks of disclosure of confidential and proprietary information and claims of cyberbullying, harassment, and discrimination.
  • Social media policies should clearly articulate the legitimate business interests the employer seeks to protect, as well as provide clear definitions of prohibited behavior and private and confidential information, and spell out the consequences for violations of the policy.
  • Employers should use caution when disciplining employees based on social networking activities, as certain union and nonunion employee rights need to be considered.
  • An employer may discipline an employee for posting negative comments on a social networking site if the employee’s comments are offensive or inappropriate, and not related to employment issues, and should do so on a consistent basis.

Workplace Solutions: Employers should open up a dialogue with employees about social media and encourage them to bring grievances to Human Resources, instead of airing their grievances online. Employers should also avoid retaliating against employees for posting on social media outside of work hours, and implement social media policies that clearly articulate the penalties for posting confidential information, and any defamatory statements.