Personal Gripes v. Protected Concerted Activity

By now, many people have heard about the Yelp/Eat24 employee who published a rant last month on social media platform Medium addressed to Company CEO Jeremy Stoppelman relating to how her entry-level compensation prevented her from affording food and otherwise living comfortably in the Bay Area. Shortly after the post was published, the employee tweeted that Yelp/Eat24 terminated her employment for violating Yelp’s Terms of Conduct. The employee later tweeted that the termination decision did not come from her department, but from the “Big Guy.”

While it’s not clear what the employee’s next steps might be, if any, terminations based on employees’ social media activity have received a lot of attention in the past few years, particularly from the NLRB—as we have written about before. Whether the NLRB would find this employee’s termination problematic depends on various factors, and many of the facts relating to this situation are unknown, but a threshold question would be whether the employee engaged in protected concerted activity under the National Labor Relations Act. Specifically, whether her complaints were intended to reflect only on her own situation or were intended to engage other co-workers in a discussion about their working conditions. While the majority of the employee’s rant seemed to focus on her personal struggle in stretching her wages to cover food, transportation, medical co-pays and rent, she also touched upon her co-workers’ struggles to make ends meet based the Company’s compensation practices. The NLRB considers two or more employees’ discussion or an employee’s complaint on behalf of her other employees regarding wages/compensation to be protected concerted activity.

Given the lack of clarity in this area of the law, employers that are considering disciplining an employee for social media activity should, as always, carefully assess the different laws that may apply to each factual situation and seek legal counsel as appropriate.