When a former sales employee at Yelp published a post on Medium Monday stating Yelp had fired her because she asked for unpaid time off to care for her boyfriend who was recovering from a brain injury, the company fired back on Twitter. The response may have opened up Yelp to a lawsuit, lawyers say.
“Unfortunately, we had to part ways with Ms. Senigaglia due to repeated absences (10 of her 59 workdays with Yelp) despite many exceptions to accommodate her needs. We provided multiple, documented warnings and ongoing performance counseling specifically related to reliability and attendance issues. Sadly, this role was not a good fit. We wish her the best,” Yelp tweeted about Jaymee Senigaglia, a single mother who worked for the company in San Francisco, where headquarters are based.
The “pretty explicit” tweet seems “atypical” for an employer dealing with a disgruntled former employee, says Jane Kow, founder of Bay Area law firm HR Law Consultants. Employers typically disclose personnel information “by way of subpoena, not by way of a tweet.”
And lawyers say it raises questions about whether Yelp violated Senigaglia’s right to privacy or gave her grounds to accuse the company of defamation.
Anthony Zaller, a startup and employment attorney with Los Angeles law firm Van Vleck Turner and Zaller LLP, says Senigaglia waived certain rights to privacy by posting publicly about her firing, but says “there’s some concern there that I have with the detail that Yelp responded.”
He cites case law pertaining to a situation in which a college student’s negative post on MySpace about her hometown of Coalinga, California was published in the local newspaper without her permission. “The court rejected (the plaintiff’s) theory that the newspaper’s publication violated her right to privacy because her post to MySpace was made virtually to everyone with an Internet connection,” Zaller wrote in a blog post two years ago, asserting the case could apply to situations of employees posting on social media.
But Zaller tells Inc. Senigaglia could argue that her complaint about getting fired did not merit a public airing of work history or specific reasons for her firing that she otherwise did not share. Yelp’s response “starts raising concerns. You’re getting into private workplace information and I think it would have been fine to do a more generic response.”
He adds that Yelp could potentially be providing Senigaglia with grounds to accuse the company of defamation. Senigaglia has already disputed Yelp’s statement that it provided her with “multiple, documented warnings.” “Hey Yelp, can you send over a record of these repeated warnings you speak of? I must have been absent for them,” she wrote in a follow-up post on Medium Tuesday.
Update: Senigaglia tells Inc. she also disputes Yelp’s claim on Twitter that she took a full 10 days off work. She says she took six half days off work plus, as she recalls, three additional full days off. “It was all approved by management, it was all worked out, there was no question of it whatsoever,” she says.
She says her follow-up Medium post counts in her mind as a request for her human resources records, which she has not received. She claims that Yelp did not want her to have to repeat training because she was a “top player.”
If any of the information in the tweet is inaccurate, “she could have a defamation claim,” says Zaller.
Attorney Robert Dolinko with San Francisco labor and employment law firm Nixon Peabody is doubtful Senigaglia would have a strong case if she alleged a violation of privacy, which is a right under the state of California’s constitution. If she hadn’t posted something publicly, the situation would be different, he says. But as it stands, “I suspect from a court’s viewpoint, that (tweet) would not be a privacy violation.”
“She’s opened up the issue to public discussion and Yelp therefore is within its right to respond presenting its side of the that very issue,” he says, adding that the tweet brings up issues of company culture. “It becomes a matter of corporate philosophy — does the employer want to get in a public dispute over this?”
Legal issues aside, the tweet could be viewed as a heavy-handed move for a company already under scrutiny after an earlier Medium post by a 25-year-old employee identifying herself as Talia Jane, who complained of low wages and poor treatment in her customer service role at Yelp food delivery subsidiary Eat24. Yelp fired Jane after she published the post, stating the dismissal was not in response to her post. The company at the time declined to share details about why it fired Jane.
Zaller says he would have advised Yelp to have responded by saying it had to part ways with Senigaglia and that the company would respect her right to privacy by not sharing specifics, “and kind of took the higher ground.”
“It just doesn’t look good for the company to go down to the employee’s level,” he says, adding that many who read the letter would agree with Yelp that that the fired employee was not a good fit with the company. “Reasonable people don’t post things on Medium or on Twitter when they have disputes with their employer.”
Yelp can easily argue that there was no privacy interest after Senigaglia posted details on Medium, says Zaller. “But on the other hand, is this good business practice? I would argue it’s not.”
The spelling of Anthony Zaller’s last name has been corrected in this post. The post has been updated to include a response from former Yelp employee Jaymee Senigaglia. Inc. has also reached out to Yelp and will update if the company comments.