The Ninth Circuit has upheld a district court’s denial of Glassdoor, Inc.’s motion to quash a grand jury subpoena requiring it to disclose identifying information about eight anonymous reviewers. Rejecting Glassdoor’s First Amendment challenge, the appeals court found that the company failed to allege - or to provide evidence - that the government’s investigation of the employer for fraud was conducted in bad faith.
Glassdoor operates a website where employers promote their companies to potential employees. Employees post reviews of what it is like to work at their companies and in these reviews - which are anonymous - employees rate employers in a variety of categories. These categories include interviewing practices, salaries and workplace environment.
An employment attorney - Jadzia Butler of Covington and Burling in Washington D.C. - has stated that a recent court order requiring Glassdoor to reveal the identities of eight users of the website, may have an effect on internet free speech. She says that it is “particularly concerning” if a subpoena can compromise the anonymity of the internet users and added, “Some employees use the platform to report managers' or co-workers' problematic behavior. Without their identities being kept confidential, they may be less likely to do so. That's bad for the employer, who could have been made aware of things it did not know were happening.”
Although the reviews are anonymous, users have to provide their email addresses to Glassdoor in order to post on the website and they are warned that such information may have to be disclosed if required to do so by law. Glassdoor warns that they “will disclose data if we believe in good faith that such disclosure is necessary . . . to comply with relevant laws or to respond to subpoenas or warrants or legal process served on us.”
Their Terms of Use state that Glassdoor reserve the right “….to take appropriate action to protect the anonymity of users against the enforcement of subpoenas or other information requests”.
Glassdoor was attempting to do that, despite an on-going federal criminal investigation where anonymous reviews were posted about an unspecified federal contractor. These reviews criticized the company's management and business practices – with one anonymous review stating that the company "manipulates the system to make money unethically off of veterans/VA.”
Glassdoor raised First Amendment concerns and the government agreed to limit its request for reviewer details to just eight example reviews, in order to “contact those reviewers as third party witnesses to certain business practices relevant to the investigation.”
However, the court stated that, "The speakers whose identities the government seeks may well be witnesses to this criminal activity, perhaps even participants in it.”
Jadzia Butler said that the employees are not implicated in a crime and are mere witnesses. She stated, "They did not ask to be dragged into this legal process. Now they and those who hear about their story will think twice about expressing themselves in this way."
Mark Kluger, an attorney with Kluger Healey in Florham Park, N.J. said, "Since most employees who post on Glassdoor probably don't work for criminal enterprises or those that are targets of FBI investigations, the average contributor likely has nothing to worry about."
An attorney with Foley & Lardner in Miami - Mark Neuberger - agreed, "This subpoena is not and should not be the end of sites like Glassdoor or other ones where people can comment about their doctors, restaurants or anything else."
However, Charles Krugel - an attorney in Chicago - stated that, "This decision should make employees think twice about using Glassdoor when employees accuse their employer of serious criminal misconduct."
In a statement Glassdoor said, "We are disappointed in the 9th Circuit's decision to deny our appeal to protect the identities of eight Glassdoor users whose contact information was being sought in connection to a federal criminal investigation linked to alleged fraud, waste and abuse of federal funds."
It added, "Glassdoor vigorously fights our users' First Amendment rights to freedom of speech, including sharing opinions online about their workplaces anonymously."
