Workplace implications of employee blogging Recent estimates show that almost 20 million blogs permeate the Internet. While many blogs are inherently personal, an increasing number comment on work-related issues—whether known to management or not. Other blogs are officially sanctioned by an organization, as progressive companies buy into the notion that blogging can strengthen relationships with co-workers and clients. In some cases, the legal ramifications for what is published on a blog may rest on whether the blog is personal or organizational. But these distinctions frequently are not easy to make. Because blogging is simply another form of communication, it is not likely to create a dramatic new legal paradigm. The bigger question for companies to address is how to communicate blogging policies and deal with fallout from potentially troubling content that is published on a blog. This article provides an introduction to some common issues that arise in the context of workplace blogging. •Employee discipline. An increasing number of high-profile cases continue to trickle out of the news media concerning the termination of employees who trash their companies on a personal blog. The incidents range from the mundane (the posting of revealing photos in a company uniform) to the serious (revelation of internal discussions from sales meetings). Consistent with the employment at-will doctrine, an employer has an unfettered right to discipline and discharge employees who blog about the workplace. The one potential landmine for employers involves protected union activity under the National Labor Relations Act. Section 7 of the NLRA guarantees workers the right to engage in “concerted activity” for the purpose of self-organization and mutual protection. Some employees, particularly in the distressed airline industry, maintain private blogs which criticize management and suggest ways to improve the organization. Generally, this is protected activity. The NLRA, however, will not afford employees a safe harbor from acts of insubordination or disclosure of company secrets revealed through a blog. •No right to privacy. No employee has a right of privacy in the content posted on a blog. That said, blogging platforms generally allow a user to maintain a private blog by requiring users to register for the purpose of accessing a site. If an employer surreptitiously, and impermissibly, gains access to such a site for the purposes of monitoring a blog, this activity could violate the federal Stored Communications Act. •Ad revenue. Successful bloggers can earn a substantial amount of income from their published work, particularly through advertising revenue. If the blog relates primarily to an employee’s work activities, any revenue generated through ads belongs to the company under work-made-for-hire principles. •Anonymous bloggers. A substantial number of workplace bloggers revel in anonymity, preferring the shield the Internet offers over self-promotion. Companies that discourage blogging could exacerbate tensions within the workplace and drive a number of employees to blog anonymously. Unearthing the identity of bloggers can be costly and time-consuming, particularly given the reluctance of internet service providers to respond meaningfully to subpoenas seeking blogger identities. The better practice seems to tolerate, or even encourage, appropriate blogging and monitor it carefully. •Handbook policies. Employee handbooks are an efficient way to communicate company policy on a host of activities. An increasing number of employers are including specific blogging provisions in employee handbooks, preferring to acknowledge blogging as an inevitable consequence of the modern workplace. The potential for exposure to a discharged employee arising out of a handbook policy is fairly remote, as long as the employer is careful to include conspicuous disclaimers concerning at-will employment. •Employer liability. It is well-known that companies will be liable for acts of an employee that occur within the scope of his or her employment. Adopting this principle to blogging can yield substantial uncertainty, and this is one area where the law is in its nascent stages. Any employee misconduct on a blog which is reasonably related to the workplace will result in vicarious liability to the company. The more difficult question involves personal blogs maintained by employees on their own time which touch upon events in the workplace. No clear standards have emerged, although it is possible that courts will draw analogies to sexual harassment law that provides an employer an affirmative defense if it takes reasonable corrective measures to avoid further harm from defamatory or disparaging comments. The popularity of blogs is not likely to go away soon. Companies must be proactive in dealing with this form of communication. Rather than prohibit blogging, companies are well-advised to enact sensible employment policies and monitor what is being said in cyberspace. Ken Vanko specializes in employment and unfair competition law at Clingen Callow & McLean LLC, a full-service law firm of business advisers and counselors based in Wheaton. The information in this article is intended for general purposes only and does not constitute legal advice. Readers should not act upon the information in this article without individual professional counseling. You may contact Ken at 630/871-2609 or vanko@ccmlawyer.com.

Posted on Wednesday, July 02, 2008 (Archive on Wednesday, July 09, 2008) Posted by jstoltz  Contributed by jstoltz

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