Damage to an organization’s reputation is always a serious matter, and anything that hurts an employer’s ability to attract talent during the ongoing Great Resignation is particularly worrisome. One vexing question is how to deal with negative reviews about the employer posted by employees or former employees on websites such as Glassdoor that guarantee posters’ anonymity.
A company’s right to redress resides primarily in state law claims for defamation and possibly those for breach of nondisparagement clauses in severance agreements. The public-policy issue in both types of claims involves weighing employers’ right to protect their reputations against employees’ right to free speech and privacy. It can be a difficult balance to strike.
Defamation is generally defined as a false oral (slander) or written (libel) communication that damages another’s reputation in the community or deters others from associating with them. The percentage of defamation claims that go to trial is small; among those that do, judicial opinions having precedential value are rarer. For these reasons, defamation claims are best handled by counsel who are experts in the pleading and practical aspects of personal-injury lawsuits of this nature in the relevant state.
Aaron Morris, an attorney with Morris & Stone in Orange County, Calif., is one such expert, having represented plaintiffs in defamation cases for decades. Even he doesn’t encourage rushing to the courthouse; rather, he recommends first trying an informal approach.
“If you get a bad Glassdoor review, you’re going to want to do something about it,” Morris says. But don’t expect Glassdoor to remove it readily. The purpose of these sites is to showcase negative and positive reviews, so they wouldn’t accomplish much if they took down all the bad reviews.
Even a well-founded defamation claim against an anonymous poster requires jumping through a lot of hoops.
However, Sara Bradley, an attorney with Neumann Law in San Diego, thinks there is a place for early lawyer-to-lawyer contact. After HR comes across an inaccurate or fraudulent post, an attorney’s letter explaining why the assertions in the review are false might persuade a site to remove it.
If the site refuses to remove the review, the employer can respond to it online in a measured and non-defensive manner. Thank the reviewer for the feedback, then explain why the review is inaccurate for the majority of employees.
Another approach is to water down a bad review. If a restaurant has 50 positive Yelp reviews, one bad or false review will not do much harm, Morris says. But if an employer has three good reviews and one bad, the potential for damage is much greater. If a company knows its employees are generally happy and want to see the business do well, Morris suggests asking them to provide balance by posting more-accurate reviews—with no hint of threat or promise of reward, of course.
If none of these approaches works, it might be time to consider a defamation 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 on payroll or doesn’t pay 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 Internet service providers, social media platforms and website hosts as the publishers of content provided by others, thus insulating them from defamation claims involving statements made by third parties.
The formal elements of contract and personal-injury claims will vary from state to state. But the relative scarcity of binding precedent in Internet defamation claims against anonymous posters makes any relevant opinion worthy of note. Here is one.
In: ZL Technologies Inc. v. Does 1-7?, a California appeals court ruled in 2017 that ZL was entitled to know the identities of several anonymous Glassdoor posters because the employees’ postings included factual assertions that could form a legally sufficient basis for ZL’s defamation case. —MMC
Playing the Long Game
Even a well-founded defamation claim against an anonymous poster requires jumping through a lot of hoops before getting any relief, Morris says.
After filing suit, the company must initiate “discovery” to get the review site to identify the anonymous poster. The review site will object, and the employer then responds with a motion to compel. If the motion is granted, the information produced will likely consist only of an IP address. The company will then need to subpoena the relevant Internet service provider to obtain the poster’s identity.
Once the employer knows the poster’s identity, settlement is straightforward in a majority of the cases, Morris says.
At that point, the company would offer a stipulated judgment—which becomes an enforceable court order—in which the poster admits to making “false and defamatory” statements and agrees to remove the offending post.
An emerging approach to attacking the problem of bad online reviews is to seek enforcement of nondisclosure agreements that include nondisparagement clauses.
Even litigation that settles at an early stage is costly.
Any employer that experiences a rash of false reviews might consider the possibility that a single angry individual is creating multiple accounts and posting as many reviews as possible under different screen names. Discovering that multiple reviews came from the same IP address answers that question.
Otherwise, Morris says, the employer has to face the more difficult question. What is motivating employees to go out there and write these false reviews?
Margaret M. Clark, JD, SHRM-SCP, is a freelance writer in Arlington, Va.
Illustration by Adam Niklewicz for: HR Magazine:.