New England Biz Law Update
A recent survey found that more than eight million people – seven percent of U.S. Internet users – maintain online journals that are regularly updated and feature the opinions of the author, along with links to other websites of interest.
These web logs, or “blogs,” can be written by anyone, and most can be accessed by the public. With the number of bloggers rising daily, the likelihood that a corporation has a blogger on staff grows higher as well. The advent of bloggers on staff can carry a degree of confusion on both sides of the equation.
Employees fear being fired for posting their thoughts on the Internet. Companies fear that their organizations are vulnerable to leaks of confidential information, security risks, and unflattering commentary that could damage their reputation – and their bottom lines.
To eliminate some or most of these fears, it is essential that employers implement a comprehensive policy on blogging to guide employee bloggers and to dispel misunderstandings.
Some Examples
Recent years have found a number of bloggers on the firing line because of inappropriate postings on their personal blogs. These problems generally have involved either blogging on company time or blogging about the company or its employees. As the examples below demonstrate, employers have latitude in defining inappropriate behavior on an employee’s blog.
A web designer for a Los Angeles software company started a blog in February 2001. Her name and the names of her company and her co-workers were not mentioned in the blog. However, she was terminated after company executives read her posts and recognized unflattering descriptions of themselves and their colleagues. As the first employee to be terminated due to blog posting, her blog, located at www.dooce.com, has spawned the term “dooced,” which defines the act of being fired because of one’s blog.
A Delta Airlines flight attendant maintained a blog called “Diary of a Flight Attendant.” She was fired in October of 2004 for posting “inappropriate photos in a Delta uniform.” She thereafter filed a sex discrimination complaint with the Equal Employment Opportunity Commission claiming that other male employees have photographs of themselves in uniform posted on the Internet but were not fired for it.
In November 2004, a Kmart employee, hoping to rebut rumors of poor Thanksgiving weekend sales, posted positive, but internal, sales data on a chat site frequented by fellow employees. Kmart terminated him, stating that “as with all company communications, confidential information should not be divulged to outside parties.”
These cases highlight the fact that the time is fast approaching for companies to develop and implement policies on blogging. A company that sets up clear road markers for its employees on the information superhighway will find itself ahead of the curve, and may reap rewards for its trouble.
Two Myths
Two prevalent myths lie at the core of most employment issues that arise around blogs.
Some bloggers believe that they are protected from consequences if they write their blogs at home, on their own time, and conceal their identities and those of their employers.
It is critical that employees understand that this is not the case. Employees are free to express their opinions in blogs, but employers have real protectable interests in maintaining their good names, and may take steps to protect their reputations.
Moreover, although some states have protections for an employee’s “off-the-job” activities, publicly criticizing an employer or supervisor may not qualify as “off-the-job” conduct.
The second myth is that blogs are completely protected by the First Amendment. Although a recent poll shows that 51 percent of Internet users believe that bloggers should have the same First Amendment rights as the media, the First Amendment is only designed to cover the interplay between a citizen and the government – not between an employee and a private employer.
A written policy prohibiting certain offending conduct can help to dispel these and other myths. Most employers already have computer usage policies that cover Internet use. While most of these policies were created to deal with improper employee conduct during business hours, it now behooves companies to update these policies to reflect the “off-the-job” nature of blogging.
Policy Terms
Blog policies should cover a few core topics. For instance, the policy should stress bloggers’ personal responsibilities for the contents of their blogs. It should be clear that the views expressed in the blog are that of the blogger, not necessarily those of the employer. Some companies request that employee bloggers post a disclaimer on their sites.
Policies should also refer to existing rules on proprietary information and confidentiality. It should be clear to employees that confidentiality agreements extend to personal blogs.
A blogging policy should cover common-sense values of courtesy. And employees should be expected to not slander, libel, harass, or be offensive in their blogs, including comment on superiors, colleagues, and competitors.
Employees should understand basic legalities around information that can not be publicly disclosed. Publicly-owned companies risk SEC violations should information considered “inside” be leaked to the public.
The policy should remind employees that they should not identify or criticize the company (by name or implication) in their personal blogs.
Bloggers should be encouraged to speak with human resources managers if they have questions as to appropriate posting on their blogs. Additionally, employees should understand that their company is well within its rights to monitor the blogs of its employees in the interest of protecting its name.
David C. Henderson is a partner at Nutter McClennen & Fish (www.nutter.com) and serves as co-chair of the firm’s employment, labor and benefits practice group. With more than 25 years of legal experience, his practice is concentrated in civil litigation and corporate general counsel advice with a particular focus on employment and labor, colleges and universities, and general business and commercial matters.
Matthew Feiner is an associate in the employment, labor and benefits group of Nutter McClennen & Fish. His practice involves representing companies in all aspects of labor and employment law, including defending employers on matters relating to collective bargaining, arbitration, discrimination, wrongful discharge, wage and hour compliance, and employment and termination agreements.
