UPDATE: Feb. 18, 2020: HR Dive received a statement from Glassdoor representatives clarifying its stance on the litigation. "Glassdoor has litigated for many months to fight Kraken’s subpoena seeking to obtain the anonymous identities of users who left reviews about the company, and supports EFF’s efforts on behalf of its J. Doe client."
Glassdoor has also said it has succeeded in "protecting the anonymity of our users leaving reviews in more than 100 cases."
- Payward, Inc., better known as Kraken, a cryptocurrency exchange company, laid off "several employees in early 2019" after which a number of anonymous reviews appeared on the company's page on Glassdoor, the popular review site. Kraken has filed a lawsuit against 10 former employees, saying they breached their severance agreements, and also filed a subpoena for identifying information on the commenters.
- The Electronic Frontier Foundation (EFF), working on behalf of J. Doe, has filed a motion to quash the subpoena, and urged the courts to set a precedent for greater anonymity protections between employees and employers.
- In addition to the lawsuit, Kraken sent an email to its former employees demanding they delete any reviews that violated the severance agreement. One former employee's lawyers say their client, "J. Doe," deleted the review even though "Doe believed they had complied with the agreement."
This case could have implications for any employer concerned about protecting its brand on Glassdoor and other review sites.
Kraken argued that the reviews were a breach of the laid off employees' severance contract, which prohibits publicly disclosing confidential information or disparaging or defaming the company.
"In the cryptocurrency industry, security and reputation are paramount. Like its peer companies, Kraken uses confidentiality and severance agreements to protect the platform's security and its reputation," Kraken co-founder and CEO Jesse Powell told Fast Company. "In those agreements, each side receives something. The former employee at issue here would like to benefit from the agreement without upholding his or her side of the bargain. We welcome employee feedback, but we won't tolerate double-dealing."
Glassdoor sent a notice to the users affected by the court decision and a timeframe by which it would have to reveal their information.
"We don't think that the court actually analyzed it under the proper legal test," Aaron Mackey, a staff attorney at EFF, told HR Dive. "So we're asking the court to take a second look at that initial determination, in addition to asking it to apply stronger protections for the anonymous reviewer."
Mackey added that their client took great care not to write anything in the review that would be in breach of the severance agreement. The commentary was not an overly negative hit job, mentioning praise for colleagues while also adding that "I personally had a deep sense of trepidation much of the time."
"Our client said things like 'didn't approve of the leadership' and 'wouldn't recommend working there,' but also had positive things to say, like felt the people he worked with were knowledgeable and smart," Mackey said.
EFF said it believes this is a breach of J. Doe's First Amendment rights and sets a dangerous precedent for a company's ability to silence employees.
"In light of the protected nature of Doe's speech and Doe's belief that this litigation is designed to chill, harass, and silence Doe and other former Payward employees, this Court should adopt more robust protections for anonymous speakers," EFF wrote in the motion to quash the subpoena compelling Glassdoor to provide the identifying information of the commenters.
Based on existing legal precedent (Krinsky v. Doe 6, 159 Cal.App.4th 1154 (2008)), Mackey said Kraken needs to establish a prima facie case, meaning it must show it has a credible argument, with evidence, to support "an initial determination" that the defendant's comments are defamatory.
"There's been a lot of cases in which these types of lawsuits are filed primarily not to actually vindicate the legal wrong that's being claimed, but to really just sort of out that person, to ridicule them, to intimidate them, to harass them, or to not just silence that individual speaker but make it known, generally, that to speak critically of the plaintiffs is really not a good idea," Mackey said.
It is EFF's stance that this case and its current rulings could set a dangerous precedent for an employer's ability to silence former employees.
"Our client, like several other Glassdoor reviewers, was simply sharing their own opinions about what it was like to work at Kraken and didn't disclose confidential information," Mackey said. "And if sharing your opinion is disparaging, or otherwise objectionable… you can never share your opinions about what it was like to work anywhere. … and that has serious implications for the sort of downstream control that a company can exert over former employees."
Negative online reviews are a significant issue for companies, with many prospective applicants checking sites like Glassdoor and others for information on potential employers. Employment brand is an increasingly important strategic initiative for HR, especially as power in the labor market shifts towards workers. Companies likely need to recognize the current era of heightened transparency, meaning that anything that goes on in their offices could end up online on Glassdoor, Yelp or Google reviews where applicants, and consumers, can see it.