Wednesday, February 24, 2016

“Lady Murderface”, Yelp, and the National Labor Relations Act

By now, you’ve likely heard about the employee fired by Yelp for her very public blog post directed at her former employer’s CEO, criticizing her $24,000 annual salary. Here’s a particular biting excerpt:
I wonder what it would be like if I made $24,000 more annually. I could probably get the headlight fixed on my car. And the flat tire. And maybe even get the oil change and renewed registration — but I don’t want to dream too extravagantly. Maybe you could cut out all the coconut waters altogether? You could probably cut back on a lot of the drinks and snacks that are stocked on every single floor. I mean, I could handle losing out on pistachio nuts if I was getting paid enough to afford groceries. No one really eats the pistachios anyway — have you ever tried answering the phone fifty times an hour while eating pistachios? Those hard shells really get in the way of talking to hundreds of customers and restaurants a day.

Within two hours of the post going live, Yelp fired her (which she tweeted).
At his HR Capitalist blog, Kris Dunn commented, “You’re tone deaf if you’re calling out your company online with your name attached.” But, it’s not that black and white, because the National Labor Relations Act protects employees who engage in protected concerted activity.

So, here’s the $64,000 question: does Lady Murderface have a claim against Yelp?

The answer depends on her intent. There is no doubt that the National Labor Relations Act protects her right to complain about wages and other terms and conditions of employment, provided that the complaints are concerted. So, was it her intent to engage her co-workers in a discussion about Yelp’s pay practices, or was she a lone wolf spouting her discontent to whomever? Remember, the NLRB judges whether conduct is “concerted” based on the intent of the utterer to “initiate or induce group action.”

The Yelp firing illustrates the difficulties that arise when the NLRB’s protected-concerted-activity protections intersect with social media. Back in the day (oh, five years ago), we knew what concerted activity looked like. It was groups of employees standing around a water cooler, or sitting around a break-room table, or huddling in a quiet corner, complaining to each other about this or that. Social media, however, has not only removed the complaints from the physical work space, it also permits employees to complain to no one, or, maybe more accurately, to everyone.

We need to keep in mind that half of term “social media” is social. One does not take to Facebook, or Twitter, or a blog, to have a conversation with oneself. Social conversation is not masturbatory, it’s participatory. It’s entire focus is to initiate or induce a share, like, retweet, or comment from others. By its very definition and nature, everything on social media is concerted.

Thus, it’s safe to assume that part of Lady Murderface’s intent in writing the post was to engage with some of her co-workers at Yelp. She wrote:
So here I am, 25-years old, balancing all sorts of debt and trying to pave a life for myself that doesn’t involve crying in the bathtub every week. 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.
If her intent was to engage her co-workers to initiate or induce group action, then the NLRA protects her, at least as the NLRB currently interprets the law. Maybe, however, the law needs to be rewritten to account for the ubiquitous power of social media. Until it is, however, employers need to treat very carefully before firing anyone for something written about work online.