What Employers Should Know About Blogs

By Vincent Lemley

Mar. 1, 2005

Blogs, the online diaries that allow people to share their thoughts with the world, have become a communications phenomenon, influencing politics and the media. But they also raise significant legal issues for employers.

    More than 5 million blogs (or Web logs) currently exist, and that number is rapidly growing. Last year, bloggers came out in droves to support former Vermont Gov. Howard Dean, and for a time it appeared that, riding the wave of their support, Dean would win the Democratic nomination for president. More recently, bloggers are credited with having created the storm over the CBS news report that led to the downfall of Dan Rather. While the true impact of blogs remains to be seen, their power is evident in the fact that businesses now use blogs as marketing tools.

    Blogs, however, like other Internet venues such as e-mail and Web sites, may be used by employees in ways that harm employers. Employees might post trade secrets or otherwise sensitive information about their employers, defame the business or its employees or engage in harassing or other inappropriate conduct.

    Recently, numerous bloggers who maintain blogs outside the workplace have been fired for publicly posting sensitive information or defaming their employers on the Internet, or just for posting inappropriate content with an actual or implied connection to their employer.

    To protect against employee misuse of blogs, private employers (public employers’ ability to act may be further limited because of employees’ 1st Amendment rights) should implement policies that address the Internet activities of their employees during and after work, while being sure not to infringe on employee rights. It’s important to:

  • Know your company’s rights and your employees’ rights as they relate to blogs, including potential state restrictions on your ability to act.

  • Create an unambiguous office policy regarding blogs and/or incorporate blogs specifically into your computer and Internet usage policies.

  • Clearly communicate the policy to your employees.

  • Look before you leap. This is a rapidly evolving area of law, and employers are well-advised to consult legal counsel before taking action based on an employee blog.

Company and employee rights
    Generally, employees who maintain blogs that disparage or otherwise reflect badly on their employers may be subject to discipline or legal action (as allowed by applicable state law).

    However, employees do have rights that employers should be aware of. Section 7 of the National Labor Relations Act allows employees to discuss wages, benefits and other terms and conditions of work with other employees. While Section 7 requires concerted activity, and blogs are generally unilateral, they may in certain circumstances be seen as meant to foster employee discussion and therefore might be viewed as concerted activity.

    Moreover, as blogs become more commonplace, they are increasingly likely to be equated with e-mail use. Because Section 7 allows employees to use e-mail to discuss certain workplace issues, courts might also frown up certain restrictions on blogs. Employers must be careful to balance these rights with their policies regarding work-related discussions on the Internet. Additionally, some states, such as New York, prevent employers from disciplining, terminating or discriminating against employees based on certain out-of-office activities unless they involve an illegal activity, moonlighting for another employer or other enumerated exceptions.

Creating a policy
    Fortunately, many employers already have policies regarding employee codes of conduct, defamation, and protection of trade secrets and other sensitive documents, as well as rules addressing employee computer, e-mail and Internet usage. If they don’t already, they should. These policies should be expanded to specifically discuss their application to blogs and other Internet venues such as chat rooms. Specific blog and chat-room policies should particularly address employee blogs or postings—except those protected under Section 7–that reflect badly on the company or its employees.

    Make sure your employees understand that writing anything that can be construed as harassment or discrimination based on gender, race, religion, age, national origin, disability or other protected characteristics, regardless of whether or not the company name is included, can open them up to disciplinary action.

Communicating with employees
    Blogs are very new and can raise legitimate confusion among employees, who may not understand that what they do in their private lives can impact their position in the workplace. It is important to clear up these misconceptions before misconduct occurs.

    If an employee does cross the line, the decision to take legal action against an employee isn’t one that should be made without careful consideration. Employers should consider legal issues, the impact on company morale and the potential for public relations problems before deciding to pursue disciplinary measures against an employee.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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