The employee strikes back - on the web

Most of you will be familiar with the hotel review website TripAdvisor. Did you know you can also review your workplace? Websites such as Glassdoor and JobAdvisor offer employees the same anonymous field day and breeding ground for airing grievances in a vacuum. Sometimes the comments even sound like hotel reviews - "the warehouse is really cold".

These websites generate revenue by promoting the opportunity for employees to have a free hit at their employer by posting a review (much like an online version of dunk the clown).

Generously, these sites also offer employers a solution by providing branding services, including analytics, where those employers find themselves the target of negative comments - for the princely sum of $900 a month.

Employers aren't able to moderate posts themselves, or delete their company profile or any review, but they can try to change the tide of comment through positive action. Suddenly, the water-cooler conversation just became a whole lot more public.

To what extent are local employers receiving feedback through these channels? A search on Glassdoor for companies in Wellington brings up some fairly vitriolic comment.

A current store manager at Wellington Beds proclaims that the pros of the job include "lots of down time" while the cons include "long periods of time with nothing to motivate you". That employee sounds like a keeper? At least there are plenty of comfortable beds if he needs a lie down.

Another review - of Downer New Zealand - complained about the "underhanded tricks to squeeze you out if you don't lap up the 70+ hours per week".

Conversely, there are glowingly positive things said about many employers, including the Wellington City Council and Kiwibank.

The reality is that with the advent of social media, there is an influx of (predominantly) young workers entering the talent pool who are comfortable with the concept of instant communications, who have high expectations around corporate transparency, and who expect more from their employers in terms of the type of working environment they provide.

The potential for brutal honesty is so vast and deep that getting your business culture right so that employees don't feel compelled to take to the keyboard is absolutely critical.

Of course, employees don't always hold out for cover of anonymity to make their feelings known. The world of sport is one area where this type of behaviour is becoming particularly prevalent.

Scottish cyclist David Millar was unceremoniously dumped from his Garmin team for this month's Tour de France after being initially told he was on the roster, but later pulled because of concerns about a lingering illness.

On hearing the news of his withdrawal, he took to Twitter, posting a photo of his race bike with the caption: "For Sale. Been raced, not much ... Good condition. Reasonable offers please."

A further tweet followed: "For the record, I was going to be ready for the Tour, so sad my team didn't believe in me, after everything we've been through. Not cool."

What can employers do in response to venting by current or former employees? Firstly, breathe.

Bear in mind that these sentiments quickly go viral and require careful response. One of the most memorable examples was Nokia NZ's tweet in November last year, directed at no-one at all, which simply read "F... you".

Nokia moved extremely quickly: "Hi everyone, contrary to the last tweet, we love our Nokia NZ fans! Apologies to those who were offended - we're investigating the source now."

There's every chance this was the work of an angry intern, but we'll likely never know. No doubt Nokia spent some time investigating the source and came up with an appropriate disciplinary sanction for the culprit.

In responding to Millar's comments about the Tour, his Garmin team provided a similar considered and prompt response: "Sorry to upset fans, but in the end, we didn't have confidence in Dave's health holding up."

If an identifiable employee has crossed the line of bringing their employer into disrepute, disciplinary action for the employee could well be justified. That may mean having an informal discussion around expectations in the social media space, or commencing a formal disciplinary process.

Where this line is drawn will be heavily dependent on the context. In short, though, employees have an obligation not to do or say anything which could bring their employer into disrepute.

Any damaging comments posted on social media will likely breach that obligation. Most employees understand that publicly bagging their current employer is not smart. But once the employment relationship is over and the obligation to be loyal and faithful ends, the gloves are off.

The only legal course of action open to an employer to stop an ex-employee's tirade is an action in defamation, but such lawsuits are expensive and the defamer may be able to rely on the defence of "honest opinion" - in other words the comments were a fair reflection of their reasonably held beliefs.

The bottom line is that "bad" employers are far more likely to be outed these days - and once that message is out there it is very difficult to pull back.

Whether you are an employee or an employer, it is important to remember that social media and the internet are not just like passing notes in class.

These notes are now being projected into the sky for all to see.

Susan Hornsby-Geluk is a Partner, Dundas Street Employment Lawyers,