New Employment Group blog post: “Lady Murderface and Protected Activity Under the NLRA”

February 23, 2016

Written by: Scott McConchie

Have you seen the story about “Talia Jane”?  I am not sure what qualifies as “going viral” (although I bet my kids do), but since I heard about it, this story may indeed be “viral.”  See, e.g., Here and here.

In a nutshell, Talia used to be a customer-service agent at Yelp.  On February 19, she published a very lengthy “open letter” to Yelp’s CEO on a blog. In her blog post, Talia Jane complains about how she and her fellow low-level employees are struggling to make ends meet.

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.

The post is as much a commentary about the inadequate minimum wage in San Francisco (and its high cost of living) as it is a complaint about her (perceived inadequate) pay at Yelp.  Her post is full of snark. (For example, Talia Jane writes:  “According to this website, you’ve got a pretty nice house in the east bay. Have you ever been stranded inside a CVS because you can’t afford to get to work? How much do you pay your gardeners to keep that lawn and lovely backyard looking so neat?”)

She was fired later that day, although Yelp is not publicly saying why. Assuming the reason for her termination was the blog post, does Talia Jane have a claim that under the National Labor Relations Act (NLRA) that she was engaging in protected activity?

As the National Labor Relations Board (NLRB) states on its website, the NLRA “gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.”

Again, from the NLRB website, the inquiry will involve three questions:

Is the activity concerted?

Generally, this requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others.

Does it seek to benefit other employees?

Will the improvements sought – whether in pay, hours, safety, workload, or other terms of employment – benefit more than just the employee taking action?  Or is the action more along the lines of a personal gripe, which is not protected?

Is it carried out in a way that causes it to lose protection?

Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets, may cause concerted activity to lose its protection.

Since 2011, the NLRB has dedicated much time to addressing companies’ social media policies in the non-union context.  For the most part, it has expanded the definition of concerted activity in social media.  See, e.g., Hispanics United of Buffalo, Inc. v Carlos Ortiz, NLRB No. 3-CA-27872 (Sept. 2, 2011), aff’d 359 NLRB No. 37 (Dec. 14, 2012) (holding that five employees engaged in protected concerted activity by posting Facebook comments that responded to a co-worker’s criticism of their job performance); Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012) (invalidating a company’s electronic posting policy that prohibited employees from making statements that “damage the Company…or damage any person’s reputation,” because it could chill employees’ willingness to engage in their right of concerted activity); Three D, LLC v. N.L.R.B., No. 14-3284 (2d Cir. Oct. 21, 2015) (holding that employees’ endorsement of former employee’s claim on social networking website that employer had erred in tax withholding was concerted activity protected by NLRA).  Still, employers may discipline or even terminate employees for personal rants and insults on social media that do not engage other employees.

Talia Jane knew that her post might cost her job.  (After she tweeted her blog post to the world – from her “Lady Murderface” twitter handle – she followed up with this tweet:  “might lose my job for this so it’d be cool if u shared so i could go out in a blaze of…..people knowing why i got fired?”)  In fact, given Lady Murderface’s expressed desire to work in media, I think it is a safe bet she wanted to get fired.

But back to the question at hand: what happens if Talia Jane makes a claim against Yelp?  Although we don’t know all the facts, it could be a close call.

Is the activity concerted? On the one hand, there was no “concerted activity.”  Talia Jane was acting alone.  On the other hand, Talia Jane arguably was acting not only on her own behalf but other low-level Yelp workers struggling to make ends meet.

Does it seek to benefit other employees? To the extent she is advocating for higher pay generally, yes.

Is it carried out in a way that causes it to lose protection? If the answer to the first question does not doom her, Talia Jane could run into problems here.  While ranting about the lack of training, poor retention, and inadequate pay, Talia Jane writes:

Speaking of that whole training thing, do you know what the average retention rate of your lowest employees (like myself) are? Because I haven’t been here very long, but it seems like every week the faces change. …  Do you know how many cash coupons I used to give out before I was properly trained? In one month, I gave out over $600 to customers for a variety of issues. Now, since getting more training, I’ve given out about $15 in the past three months because I’ve been able to de-escalate messed up situations using just my customer service skills. Do you think that’s coincidence? Or is the goal to have these free bleeders who throw money at angry customers to calm them down set the standard for the whole company?

I have never called Yelp to complain, but if I ever do, I guess I should look for a cash coupon.  Who knew Yelp’s customer-service team was full of “free bleeders [who] throw money at angry customers”?

My hunch is that Talia Jane won’t make a claim — I doubt she wants her job restored — and instead will ride this wave of publicity to a job she finds more satisfying.  Nevertheless, this case serves as an important reminder regarding the potential landmines that social media presents to employers.  Employers and their counsel should approach disciplinary decisions involving social media with caution, and should make sure that any decisions focus on activity that is not protected under the NLRA.