Yelp had a situation on its hands at the turn of the month. For the second time in two weeks, an employee was blasting the company on the blogging platform Medium. This particular employee was disputing Yelp's motivation for firing her, in a post titled "Yelp Fired a Single Mother Today: Me."

Yelp responded by tweeting out its reasons for firing the sales employee, Jaymee Senigaglia, claiming it had issued warnings to her about absenteeism. Senigaglia responded with a follow-up post on Medium, challenging the company's position. "Hey Yelp, can you send over a record of these repeated warnings you speak of?" she wrote.

The dissension between Senigaglia and Yelp, with all its personal details, highlights the increasingly public way that companies and employees are interacting online. "I think this is a new can of worms," says Howard Rheingold, a retired Stanford University instructor who taught classes in social media.

About 10 days prior to Senigaglia's post, another Yelp worker published a Medium post complaining of low wages and poor treatment in her customer service role at Yelp food delivery subsidiary Eat24. Rheingold compares the two instances of social media theater to the first high-profile instances of disgruntled consumers venting on Twitter -- a quirky practice that has since become commonplace, prompting companies to maintain customer service-oriented social media accounts.

Yelp declined to comment for this article. 

Attempting to stop an escalating situation with Senigaglia by going mute might have seemed like a reasonable response for Yelp in this situation, but lawyers say determining the correct response to an employee issue on social media is more complicated.

Employment lawyer Jonathan Segal of Philadelphia firm Duane Morris says employers generally can't avoid social media. So he advises them "go in with your eyes open and understand when the engagement begins, you can't necessarily end it."

For example, Segal recalls a case where a manager noticed on a social media site that an employee was struggling with an emotional condition. The manager commented on the post, asking if the employee was feeling better. The employee said no. The manager told Segal in describing the situation that he knew at that point not to engage further with the employee.

But Segal says managers can't pretend to "unsee" what they've already acknowledged seeing on social media. He advised the manager to engage with the employee in a controlled professional setting, to see what accommodations could be met. Here's why: The manager was now aware of an emotional condition. The condition could potentially qualify as a disability. If the manager, say, disciplined the employee or fired the employee due to performance that could be attributed in some way to the condition, this could open the manager or employer up to accusations of violating the Americans With Disabilities Act, Segal says.

Employers also need to be careful about endorsing former employees on job sites like LinkedIn, Segal says. He recalls another case, where an employer terminated a worker's employment, but then endorsed the employee on LinkedIn. The former employee then asserted that the firing had stemmed from discrimination, as the employer wouldn't have provided the endorsement if performance had been lacking. 

Knowing about employees' personal lives and interacting with them online presents a gray area, "and that's where litigators play," he says.

Yelp has already made a mistake in the minds of some lawyers and critics. The company wanted to correct what it claimed was false information presented by an employee, so it tweeted out its reasons for the dismissal. But lawyers have said using Twitter to publicly divulge details about alleged absenteeism and discipline potentially exposed the company to lawsuits. A better option for Yelp, or any company in this position? Simply stating that false information had been shared, without going into detail, and then following up privately, says Segal.

Yelp did not respond publicly to Senigaglia's second post, and declined to tell Inc. whether it had responded at all. Employment lawyer Jane Kow, based in the Bay Area, says Yelp may be required by California law to respond to the request for personnel records Senigaglia made in the post. Senigaglia said Friday evening Yelp had not yet sent her HR records. She previously told Inc. she considered her post a valid request for records. 

Typically employees would request such records in person, over the phone, or over email directly from their employer's HR department--not on Medium. But that doesn't mean the request is invalid, says Kow. "Yelp has shown twice it reads these Medium posts," she says. "By so doing, you can't say, 'Oh, we didn't get this request.'"

She points out that California labor code states personnel records are due to current or former employees, within 30 days barring a different agreement, "upon a written request from a current or former employee, or his or her representative." The law is relatively new, notes Kow, and it doesn't specify the mode of request. In the context of a request on social media hypothetically going ignored, application of this law is "untested waters" she says.

Yelp, or any other employer dealing with public disputes, should send an email or memo to employees, explaining that it will not respond to human resources requests that have been broadcast over social media, suggests Segal. Otherwise, the employer risks allowing a precedent for communication over public, nonwork-related social media channels to emerge.  

Rheingold says he wonders whether Yelp's back-and-forth with employees reflects a larger shift that will intensify. "Semiprivate spheres are now the public sphere," he says, and it seems to him that Yelp's interactions with its employees over Medium and Twitter could mean the trend is expanding in the work world.

"It has performative value, it has theatrical value, and therefore it has a large audience," he says. "Is this going to become practice for employees or is it just kind of the meme of the month?" But these are still some of the first highly publicized cases of employment disputes on social media.  "You have to see if that becomes something or not," he says. 

Published on: Mar 11, 2016