Damage to an organization’s reputation is always serious business, and anything that impairs an employer’s ability to attract talent during the ongoing Great Resignation is of particular concern. A tricky question is how to deal with negative employer reviews posted by employees or former employees on websites like Glassdoor that guarantee poster anonymity.
A company’s right of redress lies primarily in constitutional claims for defamation and possibly for violation of non-minor clauses in termination agreements. The public policy issue in both types of claims involves balancing employers’ rights to protect their reputation against employees’ rights to freedom of expression and privacy. It can be a difficult balance to find.
Defamation is generally defined as false oral (slander) or written (libel) communication that damages another’s reputation in the community or prevents others from associating with them. The percentage of defamation claims that go to court is small; among those who do, judicial opinions with precedent value are rarer. For these reasons, defamation claims are best handled by counsel who is knowledgeable in the pleading and practice aspects of such personal injury cases in the particular state.
Aaron Morris, an attorney at Morris & Stone in Orange County, California, is one such expert, who has represented plaintiffs in defamation cases for decades. Even he does not encourage rushing to the courthouse; rather, he recommends trying an informal approach first.
“When you get a bad Glassdoor review, you want to do something about it,” Morris says. But don’t expect Glassdoor to remove it easily. The purpose of these sites is to show negative and positive reviews, so they wouldn’t accomplish much if they removed all the bad reviews.
Even a well-founded charge of defamation against an anonymous poster requires many hoops.
However, Sara Bradley, an attorney at Neumann Law in San Diego, believes there is a place for early contact between attorney and attorney. After HR comes across an inaccurate or fraudulent post, a letter from a lawyer explaining why the claims in the review are false can persuade a site to remove it.
If the site refuses to remove the review, the employer can respond deliberately and non-defensively online. Thank the reviewer for the feedback, then explain why the review is inaccurate for most employees.
Another approach is to tone down a bad review. If a restaurant has 50 positive Yelp reviews, one bad or fake review can’t do much harm, Morris says. But if an employer has three good reviews and one bad, the chance of harm is much higher. If a company knows that its employees are generally satisfied and want the company to do well, Morris suggests asking them to balance it by posting more accurate ratings, without any threat or promise of reward, of course.
If none of these approaches work, it may be time to consider a defamation lawsuit, but only if the bad review is “demonstrably false,” Morris says. For example, a review stating that a company has “the worst managers” would be considered an opinion. A review claiming that a company is behind on payroll or not paying overtime contains facts that are easy to verify.
Points of the 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, protecting them from accusations of defamation with third-party statements.
The formal elements of contract and personal injury claims will vary from state to state. But the relative paucity of binding precedents in internet charges against anonymous posters makes any pertinent opinion worth mentioning. Here’s one:
In ZL Technologies Inc. v. does 1-7In 2017, a California appeals court ruled that ZL had a right to know the identities of several anonymous Glassdoor posters because the employee’s posts contained factual claims that could provide a legally sufficient basis for ZL’s libel suit. —MMC
Playing the long game
Even a well-founded charge of defamation against an anonymous poster requires you to jump through a lot of hoops before getting any relief, Morris says.
After filing a lawsuit, the company must initiate a “discovery” to ensure that the review site identifies the anonymous poster. The review site will object and the employer will respond with a writ of execution. If the motion is granted, the information produced will likely consist of only 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 poster’s identity, settlement is simple in most cases, Morris says.
At that point, the company would offer a particular verdict — 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 addressing the problem of poor online reviews is to seek enforcement of nondisclosure agreements that contain non-disparagement clauses.
Even a lawsuit settled at an early stage is costly.
Any employer experiencing a wave of false reviews may consider the possibility of a single angry person creating multiple accounts and posting as many reviews as possible under different screen names. The discovery that multiple reviews came from the same IP address answers that question.
Otherwise, says Morris, the employer must face the more difficult question: What motivates employees to go out and write these false reviews?
Margaret M. Clark, JD, SHRM-SCP, is a freelance writer based in Arlington, Virginia.
Illustration by Adam Niklewicz for HR Magazine†