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Employee Warning – GlassDoor Posts May Not Always Be Anonymous

By Fiona W. Ong - Shawe & Rosenthal LLP

November 9, 2017

My clients are often frustrated by the anonymous (and, frankly, sometimes untruthful) postings on GlassDoor, which is a website where employers and employees can post information about their companies. Employees are emboldened by the anonymity to vent their feelings about their employer – and may even sometimes take advantage of it by making false or defamatory statements intended to put the employer in a bad light (even though they are not supposed to do so under GlassDoor’s Terms of Use – you know, that overwhelmingly long and technical document that no one ever reads). There’s usually not much that can be done, since the employees’ anonymity is generally understood to be virtually absolute, and it is difficult to get GlassDoor to remove an employee review. But those employees should beware, because that anonymity is not guaranteed, as demonstrated in a recent case.

In United States v. GlassDoor, Inc., employees of a government contractor posted reviews on GlassDoor suggesting that their employer had engaged in fraud (as well as other bad things). As part of a grand jury investigation into the contractor for suspected wire fraud and misuse of government funds, the government subpoenaed the reviewers’ information from GlassDoor.

Although the employee reviews are anonymous, in order to post on GlassDoor, individuals must provide GlassDoor with their e-mail address. And, of course, when individuals sign up with GlassDoor, they are are subject to the Terms of Use (yes, the same one no one reads). Buried in that fine print, GlassDoor is a Privacy Policy that assures users the company generally “do[es] not disclose . . . individual account or usage data to third parties.” But the Privacy Policy also expressly warns users that Glassdoor “will disclose data if we believe in good faith that such disclosure is necessary . . . to comply with relevant laws or to respond to subpoenas or warrants or legal process served on us.” And before Glassdoor accepts a posting, the reviewer is warned that his or her information may be disclosed pursuant to a subpoena or court order.

Glassdoor’s Terms of Use also state that it reserves the right “to take appropriate action to protect the anonymity of [its] users against the enforcement of subpoenas or other information requests.” This is what happened here – GlassDoor fought the subpoena on the grounds that it violated the reviewers’ First Amendment rights to associational privacy and anonymous speech.

The U.S. Court of Appeals for the Ninth Circuit rejected GlassDoor’s arguments. First as to the associational privacy claim, the First Amendment has been recognized to protect the right to associate with others to engage in activities protected by the First Amendment. However, the Court found that these protections are intended for “groups of people who have associated to advance shared views or ‘join in a common endeavor,’ … not people who happen to use a common platform to anonymously express their individual views.”  The Court noted that GlassDoor’s users, because they are anonymous, are necessarily strangers to one another, and furthermore they cannot engage in any dialogue because they cannot comment on one another’s posts.

As for the anonymous speech claim, the Court recognized a “limited right” under the First Amendment to speak anonymously. In a grand jury context, however, the Court held that, under Supreme Court precedent, the right to anonymity does not not apply unless there is evidence that the investigation is being conducted in bad faith. Because there was no evidence of bad faith, GlassDoor was required to disclose the reviewer information.

I’m sure those employee reviewers will be pretty dismayed that their actual identities will be revealed. And it’s a good lesson that you should always be careful of what you say – even if you think it’s anonymous!

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