"Dear World: I Hate My Boss"

Employees Who Hate Their Jobs and Blog About It

Risks and liabilities facing businesses due to online social media activities are plentiful and involve, among many things: data, security and privacy breaches; protection of intellectual property; dissatisfied customers and clients who post negative comments about their experience for the world to see; compliance with federal regulations and guidelines; and a plethora of employment-related issues involving current or former employees.

The social media landscape for employers continues to evolve. Common issues being faced by employers include: Should employers use social media for hiring decisions or for monitoring the activities of current employees? To what extent can and should employers control access at work or try to limit activities even after hours? How do employers address disgruntled former employees who attempt to use social media to misappropriate proprietary information for their own benefit or for the benefit of a new employer? The questions go on and on.

Employers now have another concern to add to the seemingly endless series of new issues raised by social media - employees who blog about their jobs and bosses. In fact, there are an increasing number of Internet and social media sites that specifically encourage employees to "speak out" and provide "reviews" of their jobs, employers and even bosses.

Rants are Not Private

Since at least February 1999 when Scott McNealy, CEO of Sun Microsystems, told a group of reporters and analysts "You have zero privacy anyway. Get over it." the debate over the limits of Internet privacy has continued non-stop, especially when it comes to social media. Facebook's chief executive officer, Mark Zuckerberg, is continuously in the news defending Facebook's amazingly successful social media model against attacks by privacy advocates. Even certain members of the U.S. Senate have asked the Federal Trade Commission to issue privacy rules for all social media.

Employees who are looking to "blow off steam" and believe their Internet rants will never be seen by their employers are likely mistaken. Chances are that any public posting will be discovered and eventually brought to the employer's attention. And the discovery is likely to be made fairly quickly.

The poster child for the perils of on-line ranting was hopeful job-hunter "theconnor," who tweeted unfavorably about a prospective new job at Cisco after his interview, only to have the tweet discovered by Cisco within minutes. The episode recently earned a top 10 position on Telegraph's "Top 10 gaffes on Facebook, Twitter and Google." Another infamous example of social media stupidity occurred in 2009 when two employees of Domino's Pizza posted five videos to YouTube of them stuffing cheese meant for sandwiches up their noses and sneezing into sandwiches before serving them to patrons. Domino's quickly identified, fired and sued the employees.

Some wiser Americans are now trying to keep their social media presence guarded. Job seekers are becoming aware that prospective employers utilize various social media sites to investigate the backgrounds of prospective employees. Other social media users are beginning to realize that including the boss as a Facebook friend may not be a good idea, especially since employers are being encouraged to monitor their employees' use of social media.

Job-Venting Sites Encourage Bad Behavior

Some employees who are less cautious, less concerned or just less informed post their rants on Web sites that have been created for the express purpose of creating a forum for employees to comment about their employers and even their bosses. Two examples of these new social media sites are JobVent and Glassdoor.com. Each site contains thousands of reviews and ratings, positive and negative, about hundreds of specific companies in various industries and professions throughout the U.S. Many employees choose to remain anonymous with their postings, which makes identification more difficult, but not always impossible, to discover.

While most rants typically fade into oblivion, some disputes never seem to end. Consider the fate of New Jersey law firm Levinson Axelrod. In November 2009, Levinson Axelrod sued former employee Edward Heyburn for operating a "gripe site" he set up at http://levinsonaxelrodreallysucks.com. Heyburn worked for Levinson Axelrod from 1998 until he was fired in April 2004, apparently after partners learned he planned to leave and was soliciting firm clients to leave with him. Calling Heyburn’s vents a “cyber assault” of "toxic fire" on its reputation, Levinson Axelrod brought a lawsuit against Heyburn, asserting various claims. The litigation between Heyburn and Levinson is ongoing, and Heyburn has showed no inclination to go away quietly, continuing to operate his gripe site and drawing visitors to it every day. The dispute has resulted in great publicity, despite Levinson Axelrod's work with a online reputation manager that attempted to minimize the impact of Heyburn’s gripe site. News involving Heyburn's Web site still remains visible when "Levinson Axelrod" is searched in popular search engines.

Perhaps the most difficult aspect of an employee's online rant is the permanency of the comments. Once the a tweet, blog or post is made, its place in cyber-history is enduring. While most employers may be generally prepared to address historical gripes by employees that occur internally or even those that might be aired through a megaphone in the city square, few employers are prepared to deal with the viral nature of the attacks that occur in social media.

What is an Employer to Do?

The best, and most elusive, solution to avoiding online employee attacks is to create an environment where few employee gripes exist and when they do exist they are handled effectively through internal problem-solving systems. Some commentators believe that companies could learn from comments posted on employee gripe sites to improve workplace attractiveness. Given the impossibility of ensuring a perfect workplace for each and every employee, the reality is that every employer faces the risk of having discontented employees go to social media sites to air out their grievances.

Employers who respond to the fear of social media by issuing blanket prohibitions on the use of social media could be missing key business opportunities. Social media use is pervasive, and blanket restrictions could not only turn off a bright and connected potential workforce, but ultimately lead to marketing and technological stagnation.

Companies who have found themselves on the negative end of employee public gripes have responded in a variety of ways. Dell, for example, began closely monitoring online forums and blogs more closely several years ago, and responding directly to complaints. Other companies have required employees to sign agreements prohibiting them from mentioning the company, making negative comments about fellow employees or supervisors, or engaging in other inappropriate online behavior.

Still other employers, however, have simply fired their employees for posting negative content online. Several years ago, Starbucks fired Matthew Brown, a 28 year old supervisor of a Toronto Starbucks, for venting about his boss who refused to let him go home sick. Another noteworthy example is that of Virgin Airlines, which fired 13 cabin crew members who posted comments about its safety standards and passengers on a Facebook forum. Among other things, the crew members commented that Virgin planes were infested with cockroaches, and that passengers were "smelly" and "annoying." There is also the example of Stroudsburg University professor Gloria Gadsen, was suspended after joking about killing students on her Facebook page, which seemed to caused her employer to react quickly simply due to potential safety reasons.

Potential Ways to Respond

There is no cookie cutter approach for addressing employees who utilize social media to post gripes about their employers or bosses. Not only does the appropriate remedy depend upon what is said, but legal consequences that might occur as a result of the imposition of the remedy. For example, if the employer is a state actor, the comments may be afforded First Amendment protection. For private employers, the National Labor Relations Board has determined that certain online employee communications concerning their employer may be subject to the protections of the National Labor Relations Act, even if the workplace is not represented by a union. Some states restrict employers from attempting to control the after-hours activities or conduct of their employees. There could even be whistleblower implications in some situations. Moreover, as shown by some of the examples mentioned earlier, the negative publicity from responding incorrectly could exacerbate the situation.

Employers would be wise to follow at least these basic steps:

1. Establish an effective system for allowing employees to vent complaints "offline," without resorting to social media.

2. Develop a social media policy consistent with the law that will establish clear and lawful parameters for the use of social media in the workplace. The policy should clearly state that the employer has the right to monitor the use of social media by employees.

3. Be proactive in responding to employee postings on various social media sites. Depending on the situation the appropriate response may be to ignore the posting for the time being, to address the underlying complaint, to terminate the employee or even to initiate litigation. Regardless, a prompt review of the situation should be an imperative step.

4. Contact legal counsel to assist in addressing social media and employment issues that arise. There are simply too many things that could go wrong in addressing these situations to deal with the situation alone or to rely upon the advice of a friend.

Ice Miller assists businesses of all types and sizes on social media and Internet issues, such as drafting social media use policies, employment agreements, employment handbooks and contracts; intellectual property protection and infringement; damage to reputation caused by negative online content and activities; and other Internet, technology and social media matters. If you enjoyed this article and desire to view similar articles or news stories, visit The Ice Loop, Ice Miller's Internet, Technology and Social Media blog.

For more information about these issues, please contact Michael Wukmer or Michael Tooley.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.