Last week, a San Francisco-based Yelp employee wrote an open letter to her CEO accusing Yelp of paying low wages, having poor working conditions and high turnover, and generally being a terrible employer. As of this writing, the letter has been liked or commented on almost 4,000 times on medium.com. Shortly after posting the letter, the author was terminated.
Employees in almost every state are considered “at will,” meaning they may be disciplined or fired for a good reason, a bad reason, or no reason at all, as long as the reason is not unlawful under local, state, or federal law.
The National Labor Relations Act (NLRA) is the federal law that prohibits discrimination or retaliation against employees who engage in “protected concerted activity” regarding wages, hours, or terms and conditions of employment. To be protected, the activity must be either concerted (i.e., undertaken by or on behalf of two or more employees) or designed to inspire concerted activity. An employee may lose the protection of the NLRA if they engage in vulgar or threatening behavior, but this exception is essentially “theoretical,” given a recent National Labor Relations Board (NLRB) ruling in favor of an employee who screamed at his boss within earshot of customers.
The NLRB will likely find that Yelp violated this employee’s right to engage in protected concerted activity because her complaint involved her wages and those of her co-workers.
Employers often want to discipline employees who post embarrassing social media content. However, members must consider the content of the comments and ignore the medium. The audience of speech is irrelevant to its legal protection. Comments regarding wages, hours, and terms and conditions of employment can be protected regardless of whether they are made to one’s spouse at the dinner table or on Twitter where they’re re-tweeted by Lady Gaga to millions of followers. Members should consider whether a post is an “individual gripe” made by an employee on their own behalf or is on behalf of two or more employees. If any other employee has “liked,” “re-tweeted,” or commented on a post, that is a clear indication of concerted activity.
For its part, Yelp acknowledged that the employee’s post was “an important example of freedom of speech,” which shows another common misconception. Employees of private companies do not have freedom of speech protections under the U.S. Constitution for comments made about their employment—only public employees do.
MSEC attorneys are available to help members analyze social media posts or other comments by their employees for possible NLRA protection.