Last week a former employee working for Yelp’s food delivery unit, Eat 24, was fired for violating the company’s internal “terms of conduct.” The termination came after the customer-service rep, Talia Janes, wrote a critical blog post about her low pay and working conditions in an open letter to Yelp’s CEO. The interesting issue for legal geeks like me is whether this termination or the company’s terms of conduct violate federal labor law.
The National Labor Relations Act and Social Media
The National Labor Relations Act (NLRA) protects concerted employee activity. This includes speech related to an employee’s job, compensation, and terms. An employer violates the NLRA by restricting such speech, including statements made outside the workplace.
For the past couple of years, the agency that enforces the NLRA, the National Labor Relations Board (NLRB), has focused on protecting the right of employees to discuss the terms and conditions of the workplace online. This has resulted in the NLRB finding many companies in violation the Section 7 rights of workers under overly broad or ambiguous social media policies. The theory is that these policies “could” potentially restrict the employees’ ability to act regarding the terms and conditions of their employment.
The Blog Post that Violated Yelp’s Terms of Conduct
Turning to the Yelp termination, here are excerpts of what Ms. Janes wrote:
- Every single one of my coworkers is struggling. They’re taking side jobs, they’re living at home. One of them started a GoFundMe because she couldn’t pay her rent. She ended up leaving the company and moving east, somewhere the minimum wage could double as a living wage. Another wrote on those neat whiteboards we’ve got on every floor begging for help because he was bound to be homeless in two weeks. Fortunately, someone helped him out.
- They get holidays and weekends off! Can you imagine?
- Speaking of that whole training thing, do you know what the average retention rate of your lowest employees (like myself) are? Because I haven’t been here very long, but it seems like every week the faces change. Do you think it’s because the pay your company offers is designed to attract young people with no responsibilities …
- Yelp could save about $24,000 in two months if the company stopped restocking flavored coconut waters since no one drinks them … I wonder what it would be like if I made $24,000 more annually.
Ms. Janes’ examples certainly relate to terms of employment, benefits, and compensation. So the question becomes whether Yelp’s terms of conduct violate the NLRB’s current social media enforcement regime.
Social Media, the NLRB, and Overly Broad Policies
I have not reviewed Yelps’ terms of conduct, but as noted above, the NLRB has been very aggressive when it comes to rules that can reasonably be read to prohibit protected concerted criticism of an employer, or its terms of employment will often be found unlawfully overbroad. And this is true even when the rule prohibits employees from engaging in disrespectful, negative, or rude language towards an employer or management.
So with this in mind, Yelp may find that the NLRB is not going to favorably review its terms of conduct or firing the employee after she blogged about the terms of her employment and benefits – no matter how unfavorable the employer may view the offending blog post.
For more information about drafting social media policies that comply with applicable federal and state laws, contact employment attorney Jason Shinn.