Employee Warning – GlassDoor Posts May Not Always Be Anonymous
By Fiona W. Ong - Shawe & Rosenthal LLP
November 9, 2017
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.
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!