Work, lies and the Internet

Damage to an organization’s reputation is always a serious matter, and anything that damages an employer’s ability to attract talent during the ongoing Big Resignation is of particular concern. One vexing question is how to deal with negative employer reviews posted by current or former employees on websites like Glassdoor that guarantee the anonymity of the posters.

A company’s right to damages lies primarily in state lawsuits for defamation and possibly in those for violating non-denigration clauses in termination agreements. The public policy issue in both types of complaints involves weighing the right of employers to protect their reputation against the right of employees to free speech and privacy. It can be a difficult balance to strike.

Possible approaches

Libel is generally defined as an oral (libel) or written (libel) false communication that harms another’s reputation in the community or dissuades others from associating with them. The percentage of defamation complaints that end up in court is low; among those who do, judicial opinions with precedent value are rarer. For these reasons, defamation claims are best handled by an attorney experienced in the aspects of defending and practicing personal injury cases of this nature in the relevant state.

Aaron Morris, an attorney with Morris & Stone in Orange County, California, is one such expert, having represented plaintiffs in defamation cases for decades. He also doesn’t encourage running to court; rather, he recommends trying an informal approach first.

“If you get a bad review on Glassdoor, you’re going to want to do something about it,” says Morris. But don’t expect Glassdoor to remove it promptly. The purpose of these sites is to show negative as well as positive reviews, so they wouldn’t accomplish much if they deleted all the negative reviews.

Even a well-founded defamation claim against an anonymous poster requires a lot of jumping through hoops.

“Don’t threaten them with a lawsuit,” says Morris. “You are making the situation contradictory for no reason.” It’s best, he argues, for a non-lawyer company representative to contact the review site, provided with a list of reasons why a particular review isn’t legitimate under the site’s terms of use.

However, Sara Bradley, an attorney with Neumann Law in San Diego, thinks there is a place for an attorney-to-attorney first contact. After HR comes across an inaccurate or fraudulent post, a letter from an attorney explaining why the claims in the review are false could convince a site to take it down.

If the site refuses to remove the review, the employer can respond online in a measured, non-defensive manner. Thank the reviewer for the feedback, then explain why the review is inaccurate for most employees.

Another approach is to water down a negative review. If a restaurant has 50 positive reviews on Yelp, one negative or fake review won’t do much harm, says Morris. But if an employer has three positive reviews and one negative, the potential harm is much greater. If a company knows its employees are generally happy and want the company to do well, Morris suggests asking them to provide a balance by posting more accurate reviews—with no hint of threat or promise of reward, of course.

If neither of these approaches work, it might be time to consider a defamation lawsuit, but only if the negative review is “verifiably false,” says Morris. A review stating that a company has “the worst managers,” for example, would be considered an opinion. A review stating that a company is behind on payroll or not paying overtime involves easily verifiable facts.

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 publishers of content provided by others, thus insulating them from defamation charges involving statements made from third parties.

The formal elements of contracting and personal injury claims vary from state to state. But the relative paucity of binding precedent in Internet libel suits against anonymous posters makes any pertinent opinion worth mentioning. Here is one:

In ZL Technologies Inc. v Fa 1-7, a California appeals court ruled in 2017 that ZL had a right to know the identities of several anonymous Glassdoor posters because the employee posts included factual claims that could form a sufficient legal basis for ZL’s defamation case. —MMC

Play the long game

Even a well-founded defamation charge against an anonymous poster takes a long way to go before it gets any relief, Morris says.

After filing a lawsuit, 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 successful, the information produced will likely consist only of an IP address. The company will then have to sue the relevant internet service provider to obtain the identity of the poster.

Once the employer knows the identity of the poster, the deal is straightforward in most cases, says Morris.

At that point, the company would offer a stipulated judgment — which becomes an executive court order — in which the poster admits making “false and defamatory” statements and agrees to remove the offending post.

An emerging approach to addressing bad online reviews is to seek enforcement of non-disclosure agreements that include non-disparagement clauses.

Disputes that are resolved early on are also costly.

Any employer experiencing a wave of fake 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. Finding out that multiple reviews come from the same IP address answers this question.

Otherwise, says Morris, the employer is faced with the more difficult question: What motivates employees to go out and write these fake reviews?

Margaret M. Clark, JD, SHRM-SCP, is a freelance writer in Arlington, Virginia.

Illustration by Adam Niklewicz for HR magazine.