The Law and Business of Social Media
March 14, 2016 - Labor Law, Employment Law

A Negative Review May Be Protected Activity Under U.S. Employment Law

Yelp, Inc. is more accustomed to being on the giving—rather than the receiving—end of a negative review. That changed recently when a Yelp customer service employee, Talia Ben-Ora, posted an open letter to Yelp’s CEO on her blog, lamenting her daily struggle to survive in the Bay Area on low pay. Ben-Ora spent much of the letter discussing wages, benefits, and the financial challenges faced by her co-workers:

Every single one of my co-workers is struggling. They’re taking side jobs, they’re living at home.… 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…. Let’s talk about those benefits, though. They’re great. Except the copays.… Twenty bucks each is pretty neat, if spending twenty dollars didn’t determine whether or not you could afford to get to work the next week.

I got paid yesterday ($733.24, bi-weekly) but I have to save as much of that as possible to pay my rent ($1245) for my apartment that’s 30 miles away from work because it was the cheapest place I could find that had access to the train, which costs me $5.65 one way to get to work. That’s $11.30 a day, by the way. I make $8.15 an hour after taxes…. I woke up today with stomach pains. I made myself a bowl of rice.

…As I said, I spend 80% [of my income on rent]. What do you spend 80% of your income on? I hear your net worth is somewhere between $111 million and $222 million. That’s a whole lotta rice.

Shortly after Ben-Ora posted the letter, Yelp terminated her employment. Yelp’s CEO stated that her termination was not related to the letter, but Ben-Ora’s post has the online world buzzing and Yelp is not receiving positive reviews.

There may be many valid reasons for terminating an employee. Employers should note, however, that the National Relations Labor Board has become increasingly aggressive in protecting an employee’s right to discuss wages and working conditions in a public forum, even when that discussion involves disparaging the employer. Under Section 7 of the National Labor Relations Act (NLRA), protesting an employer’s labor policies or treatment of employees is considered protected activity, and this protection extends to non-unionized employees as well. While there appear to be no reports of legal claims by Ben-Ora, commentators have raised the question of whether this type of posting might be legally protected under the NLRA.

The Ben-Ora incident is therefore a reminder of the risks employers may face—both legally and from a public relations perspective—in terminating an employee who has recently protested wages on social media.