By Allen Smith
On the heels of a controversy involving the firing of a Yelp employee after she criticized her CEO on a blog, Yelp is embroiled in another dust-up: the company’s tweet about its reasons for firing another employee. The tweet responded to the second employee’s blog post about the termination, and it may have made the company vulnerable to a defamation or retaliation claim, legal experts say.
“Engaging in a social media war is typically a recipe for trouble,” said Adam Forman, an attorney with Epstein Becker Green in Chicago. “In addition to increasing its exposure to liability, an employer that responds on social media to criticisms about its decision to discharge an employee is risking a torrent of negative publicity. Due to the perceived balance of power, the former employee may, invariably, be viewed as the ‘victim,’ whereas the employer may come off as a cold, heartless bully.
“Just like a request from a prospective employer about a poor-performing former employee, the best response to a post on social media is to remain neutral,” he said.
Jaymee Senigaglia wrote an article on Medium about her termination from Yelp’s sales team, a discharge that followed her boyfriend’s mountain biking accident. (Medium is a blog that describes itself as a community of readers and writers that offers unique perspectives on ideas.)
Her boyfriend was taken to an intensive care unit and diagnosed with a brain injury. The accident occurred on the weekend, and Senigaglia immediately informed Yelp about it. The next Monday, Feb. 29, she said her manager, director and HR called to say she could come in or resign.
She did not go in and was discharged.
In its tweet, Yelp stated, “Unfortunately, we had to part ways with Ms. Senigaglia due to repeated absences (10 of her 59 workdays with Yelp) despite many exceptions to accommodate her needs. We provided multiple, documented warnings and ongoing performance counseling specifically related to reliability and attendance issues. Sadly, this role was just not a good fit. We wish her the best.”
In a statement, a Yelp spokesperson added, “Trainees joining our sales team are onboarded through an immersive 60-day training program that requires each trainee to commit to reliable attendance. Trainees agree to miss no more than two days so that training teams and programs are not disrupted. For those that are not able to meet that attendance requirement, we offer for them to reapply and join a subsequent training class. We made an exception for Ms. Senigaglia and kept her with her training team while we continued to try and meet her needs, including an adjusted daily arrival time.”
A company tweet about someone’s discharge “can be very counterproductive,” said Peter Gillespie, an attorney with Fisher & Phillips in Chicago. “Once the information is out there, it’s difficult to control the public’s reaction,” he noted. And there’s the possibility the post will be used as an admission in court if there is subsequent litigation, “especially if the posting is not 100 percent accurate.” This is possible given Twitter’s character count limit.
A press release “is easier to control than social media,” as the recipients of a press release can be more easily controlled and response to social media “snowballs much faster,” Gillespie said.
In response to Yelp’s tweet, for example, Senigaglia blogged, “Hey Yelp, can you send over a record of these repeated warnings you speak of? I must have been absent for them,” among other critical remarks.
Some Twitter users criticized Yelp’s tweet, even saying that it was defamatory.
Might it have been?
If there is a statement that is inaccurate, it could give rise to a defamation claim, Gillespie said.
And if a complaint had been filed prior to discharge in similar circumstances, a tweet arguably might have been retaliation, added Anthony Zaller, an attorney with Van Vleck Turner and Zaller in Los Angeles.
“Even if the employer publishes true facts on social media, the employer has no right to publish that information to third parties who do not have an interest in knowing those facts,” said Bennet Alsher, an attorney with FordHarrison in Atlanta.
It’s safer for employers to respond without getting into specifics and thereby avoid privacy and defamation concerns, Zaller remarked.
Alsher recommends an even more conservative approach, saying, “An employer may argue that the employee waived privacy rights by stating facts about his or her termination on social media” or online. “Nevertheless, I would advise an employer to avoid using social media to communicate the reasons for, or facts related to, an employee’s termination.”
Senigaglia did not respond to questions for comment on this article.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.