Anonymous Employee Reviews: Looking through a Glassdoor, Darkly 10:15, April 13, 2017

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Anonymous Employee Reviews: Looking through a Glassdoor, Darkly

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Unflattering anonymous employee reviews posted by current and former employees prompted two companies to try to force Glassdoor to disclose the names of the reviewers. In March 2017 a California court denied one company’s request, but a Texas court granted another company’s request and ordered Glassdoor to reveal who wrote the reviews.

“Confidential Information” Claim Failed

In California, software developer Machine Zone, Inc. (MZ) asked Glassdoor to remove a review in which a former employee repeated statements made by the CEO and claimed that MZ lied about how much money it raised from investors. Without identifying specific statements, MZ filed a lawsuit against the anonymous employee, claiming that the review disclosed confidential information in violation of a nondisclosure agreement.

After Glassdoor removed the review, MZ tried to get Glassdoor to identify the author. But Glassdoor refused, saying that disclosure would violate the author’s right to speak anonymously and that MZ failed to show that it would succeed in its claim that the review disclosed confidential information, as defined by the nondisclosure agreement.

The court agreed with Glassdoor that the reviewer had a right, protected by the First Amendment, to speak anonymously. It also agreed that MZ failed to show that it would have succeeded in proving that the reviewer disclosed confidential information. MZ claimed that the information in the review was incorrect and, at the same time, that it was confidential information that should not have been disclosed. But incorrect information wouldn’t be confidential information. “After all,” said the court, “the function of a nondisclosure agreement is to prevent competitors from learning the company’s actual secrets.” False information, on the other hand, “would seem if anything to constitute disinformation on which competitors would rely at their peril.”

MZ might not have wanted to admit that the anonymous review was correct. But without that admission, its case was doomed.

“Defamation” and “Disparagement” Claims Succeeded

In the Texas case, several people wrote anonymous employee reviews on Glassdoor claiming that online lingerie retailer Andra Group, LP (Andra) was violating labor laws, had unethical business practices and illegal hiring practices, and was committing racial and sexual orientation harassment. Andra felt that the reviews constituted defamation and business disparagement, and it filed a petition to require Glassdoor to identify the people who wrote the reviews.

As it did in the California case, Glassdoor argued that Andra could not interfere with the reviewers’ free speech rights because it had not provided evidence that its claims would succeed. But the court examined the reviews and found that they contained disparaging statements of objectively verifiable facts, so that Andra could require Glassdoor to identify the reviewers.

Companies that find themselves in situations like this can lose even when they “win.” For instance, although Andra won the ability to find out the identities of the reviewers, it had a reduced pool of qualified applicants after the reviews were published. Previously, Andra had been able to fill job positions by posting on free or inexpensive websites. But after the reviews came out, Andra had to resort for the first time to recruiting agencies to fill job positions, incurring $88,450 in recruiting expenses.

Employers should carefully consider how to respond to anonymous employee reviews and, even more importantly, what they can do to give employees outlets other than outside websites to post grievances.

How to Deal with Anonymous Employee Reviews

As we saw in the California and Texas cases, sometimes employers request that anonymous employee reviews be taken down from a website, and/or they try to find out who wrote the reviews.

They also sometimes post on the same websites where employees or former employees post reviews. Employers who want to share their side of a story should remember that an angry or dismissive response may make the original review seem more plausible.

In 2015 Glassdoor published five CEO responses that it felt were worth reading. The company determined that effective employer responses (1) show appreciation for employees, (2) show that the CEO values feedback and implements change, and (3) can help with employee retention by showing current employees that they’re valued.

In a Bloomberg BNA article on anonymous online reviews, attorney Charles Lee Mudd Jr. said that employers considering engaging an anonymous reviewer should think about public perception, especially if the statements are “false and antagonistic.” Responding to such statements may give them more publicity and lend them more credence than they otherwise would get.

In the same article, Karen Doyne, the managing director at a public relations firm, stressed the importance of remembering “that the people who post on these sites are looking for peer-to-peer communication; they see it as their space, not yours.” She added: “So when you respond to them it’s as if you’re intruding on your employees while they’re at a local bar commiserating about work. It’s fine to walk over and say hi, but you don’t want to over-stay your welcome.”

Give Employees a Place to Register Concerns

We’ve advised employers before to provide multiple reporting channels where employees can report concerns or complaints, preferably anonymously. As Doyle states, such reporting channels might keep employees from feeling “the need to post on outside social channels.”

Internal channels are a good idea anyway, even without considering that employees may post unflattering reviews on a website like Glassdoor. As we’ve written before, workplace complaints are good for employers; they let employers know about problems and they let employees know that their complaints will be heard. And research shows that whistleblowing deters wrongdoing in the future. It’s much better for employers to find out a problem from a current employee than to provide a workplace where employees feel their only option is to quit and complain.

No one likes to get negative feedback. But as Jayson DeMers notes for Forbes, “Company review sites do help provide some important insights into company culture and employee satisfaction. For this reason, it’s critical that employers take negative reviews seriously, and respond to them in way that showcases their commitment to employee satisfaction and a positive work environment.”

So smart companies will look at negative reviews as a chance to examine their company culture and see what needs to be changed. The ex-employees in these cases were complaining about serious issues that could have devastating consequences for an employer: fraud, labor law violations, discrimination, and harassment. These companies were concerned about identifying the people leaving bad reviews, but they should also have been very concerned about the truth of the accusations. Although it’s better for employers to create an atmosphere where employees will report problems internally, these external reviews also provide valuable information.

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Christine Day
Christine Day is a legal editor at EverFi. She writes about employment law issues and tracks case law and legislative and regulatory updates. Before joining EverFi she worked in legal publishing, researching and writing about tax law, business law, and employment law. She earned her JD from the University of San Diego Law School and her BA from the University of Southern California.

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