Recently, Yelp
employee “Talia Jane,” (not her real name) who goes by the twitter handle “Lady
Murderface,” was fired shortly after posting an open
letter to her CEO on Medium.com that lamented her low pay, high cost of
living in the San Francisco Bay area, and her dissatisfaction with her job. The post, and the subsequent termination of
the employee, set of a debate in the blogosphere with some feeling she was
fired unfairly and others accusing her of being an entitled millennial. But there has been very little legal analysis
of her post and its aftermath. That
raises the question, was Talia Jane for unlawful reasons?
The rule laid down
in National Labor Relations Board (NLRB) decisions is that an employee cannot
be fired for engaging in protected “concerted activity” under the National
Labor Relations Act. Concerted activity
is that which is “engaged in with or on the authority of other employees, and
not solely by and on behalf of the employee himself.” Meyers Industries, 268
NLRB at 497 (Meyers I). In a
subsequent case, the Board expanded this definition to include those
“circumstances where individual employees seek to initiate or to induce or to
prepare for group action, as well as individual employees bringing truly group
complaints to the attention of management.” Meyers
II, 281 NLRB at 887. This reasoning was relied on in 2012 when the
NLRB found that posting certain concerns on social media qualified as a
protected concerted activity. Hispanics
United of Buffalo, 59 NLRB No.
37 (Dec. 14, 2012).
In reviewing her
Medium.com post, most of her open letter is related to her own complaints about
her wages and inability to pay her $1,245 per month rent or buy groceries. There are, however, several sections of the
letter that would concern me if I had been advising Yelp in this case. Consider the following:
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. Another wrote on
those neat whiteboards we’ve got on every floor begging for help because he was
bound to be homeless in two weeks. Fortunately, someone helped him out. At
least, I think they did. I actually haven’t seen him in the past few months. Do
you think he’s okay? Another guy who got hired, and ultimately let go, was
undoubtedly homeless.
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 think it’s because the pay your company offers is
designed to attract young people with no responsibilities, sort of like the CIA?
Moreover, at one point, while discussing the company’s
decision to stop stocking coconut water, she notes it is “because they taste like the bitter remorse of accepting a
job that can’t pay a living wage.”
Thus, Talia Jane has discussed
her own concerns but also those of other “struggling” coworkers, employee turnover,
and twice uses the buzz-phrase “living wage.”
So that raises the question, was this open letter one where an
individual is “bringing truly group complaints to the attention of management”? If so, then Talia Jane’s firing could be
found to violate the NLRA.
It is important to note that
Yelp denies terminating Talia Jane because of her open letter. Yelp’s CEO quickly took to Twitter and denied
involvement in her termination pointing out there are two sides to every story and
stated that her firing "was
not because she posted a... letter directed at me".
Talia Jane posted
shortly after her termination that her manager and HR told her she was terminated for writing the letter as it violated the Yelp terms of conduct. She then posted that:
i'm on the phone with HR going over my severance now.— Lady Murderface (@itsa_talia)February 20, 2016
