Blogs: Why They Matter to Employers
By: KAREN G. SCHANFIELD
August 2007
One of the latest trends in electronic communication, “blogs” are fast, easy, inexpensive, and universally accessible. They’re also unregulated, though, and can subject an unwitting employer to liability.
A “blog,” or web log, is a personal website that contains an individual’s comments on various subjects, often with images and links to other blogs and web pages. Many blogs allow readers to post responses, creating an interactive and often lively exchange of ideas.
Employees who blog, that is, who post comments on their own or others’ blogs, about work or at work can create liability for their employers. Employers who “dooce,” or fire, an employee for blogging or other inappropriate electronic communications also face liability for violating the employee’s rights. A well-drafted policy covering blogging and other forms of electronic communication can help an employer successfully navigate this uncertain terrain.
Because blogs are often casual and anonymous, bloggers may use them to vent feelings or make statements that are inadvertent, are ill-considered—and once made, cannot be retracted. Many employees, and some employers, mistakenly believe that blogging is “free speech” protected by the First Amendment. Because the First Amendment only applies to the state and other governmental entities, public employees are entitled to such protection, but private-sector employees are not. Comments that ridicule co-workers, spread rumors about others, disclose company secrets, or constitute acts of securities fraud can and should be the basis of discipline.
As always, however, employers should take care that discipline is administered in an even-handed manner. Discipline that appears to fall more heavily on members of protected classes can lead to individual and group claims of discrimination based on such characteristics as age, race, gender, disability, religion, and national origin. Likewise, if the discipline appears to be in response to an employee’s protected activity, such as taking a leave of absence, requesting or receiving an accommodation for disability or for religious practices, or reporting an employer’s suspected illegal conduct, an employee may claim the protection of various state and federal laws.
One protected activity employers sometimes overlook is “protected concerted activity” under the National Labor Relations Act (NLRA). The NLRA applies to both union and nonunion employees and, among other things, protects co-workers’ discussion of employment terms and conditions. Individuals and groups of employees may not be disciplined for communicating on work-related matters of mutual concern, subject to certain limits. The precise impact of the NLRA on electronic communications is still unknown, but it will likely protect an employee who meets with co-workers to discuss wages or changes in benefits and later blogs about the discussion.
The best approach for employers is to adopt a carefully crafted policy and apply it in a consistent and nondiscriminatory fashion. All forms of electronic communication, including blogs, e-mail, intranet, and Internet use, should be addressed and appropriate limits placed upon them. The policy should also state that discipline, up to and including unpaid suspension and/or termination, may result if the policy is violated.
At a minimum, the policy should require that employees:
- Clearly state that all opinions stated are those of the employee and do not necessarily reflect the employer’s views;
- Strictly comply with all applicable laws and policies, including those governing nondiscrimination and nonharassment, confidentiality, the use of trademarks, the duty of loyalty, and compliance with securities laws;
- Will not use derogatory or profane language;
- Will not use the employer’s computers, Internet access, or other equipment and services for nonwork-related purposes; and
- Acknowledge that electronic communication at work or made using work equipment is monitored and the employee has no expectation of privacy or confidentiality for such use.
Employers should provide the policy to all employees and ask them to sign an acknowledgement confirming they have received it and will abide by it. The employer should retain the signed acknowledgments and update them when the policy changes. Employers that establish an internal blog to provide a forum for employees to communicate about work-related matters should apply similar rules to its use.
Employers should consider establishing additional guidelines for supervisors and managers who use electronic communications as part of their work responsibilities. Some supervisors and managers find blogs and other Internet sites useful tools in conducting workplace investigations of alleged harassment or other misconduct. Others see them as an extension of the recruiting and hiring process, hoping to learn more about a candidate by viewing comments made in an informal setting. While blogs and Internet sites can be rich and legitimate sources of information, an employer should make certain its supervisors and managers understand the conclusions they reach and the actions they take must be based on reasonably reliable information, not on information that reveals an individual’s age, race, gender, disability, marital status, or other protected class characteristics.
The law governing technology currently lags far behind technology’s use in the workplace. Nonetheless, an employer can and should take steps to lessen its exposure to claims. Adopting appropriate policies and carefully applying them can aid employers grappling with the role of technology in the workplace. For assistance in establishing an electronic communications policy, or updating it to cover blogs, please call your Fredrikson & Byron Employment & Labor Law attorney.
Takeaway
Employers should adopt appropriate policies addressing blogging and other uses of technology in the workplace.