Blogging in the workplace: Is your company prepared?

Christine Wichers
August 10, 2005 — 2,288 views  
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An estimated eight million American adults publish their own web logs, or “blogs.” These are online personal diaries in which the authors spout opinions on current affairs, politics, sports, or any number of other subjects, often under a pseudonym. You might not think people would be interested in reading a stranger’s web site, but blogs can be powerful communication tools — they are read by some 32 million people.

An employee blog that applauds the author’s workplace can serve as positive advertising for an employer. But what if the opposite occurs? If one of your employees is venting about the company in his personal blog, what can you do?

For starters, if the employee is blogging during work hours or on a company computer, he has likely violated at least one of your corporate policies and you may decide to discipline or fire him on that basis, even if the blog does not disparage the company or contain other objectionable content.

If the employee is blogging after hours, you still have recourse. Several employers have terminated employees for posting objectionable messages in their personal blogs. Delta Airlines fired a flight attendant for posting suggestive pictures of herself in her uniform. Google, Waterstone’s Books and the St. Louis Post-Dispatch have all fired workers for criticizing their employers in their blogs. A newspaper in Durham, N.C., fired a writer who used her blog to disparage her workplace and who mistakenly believed that calling herself the “Sarcastic Journalist” would protect her anonymity. A Senate staffer was fired for blogging about her sexual exploits with powerful politicos in Washington (she then wrote a book about it). Such terminations have even expanded the American lexicon. Getting fired for blogging is known as “getting dooced.” The eponym comes from a fired blogger who used that as her web name. See www.dooce.com.

There may be reasons to fire a blogger other than deterring employee criticism of the company. For example, if a blogger makes a discriminatory comment about a co-worker, it is usually the company that gets sued. Likewise, if an employee legitimately learns another company’s confidential information through work and she discloses it on her blog, or if she defames someone and makes it appear her employer authorized the statement, her employer could be held liable. Or an employee might disclose his own employer’s trade secrets. Another issue that can arise is a blogger’s publication of false rumors about his employer. Even rumors that turn out to be true can be damaging — for example, if a blogger discloses material, non-public information or rumors about his employer when the company’s stock price is fluctuating.

Employees are often under the mistaken impression that what they say in their personal blogs is protected by the First Amendment. In fact, that is true only for federal, state and local government employees, and then only if they blog about matters of public concern. The First Amendment does not protect the rest of the working world, which consists mostly of at-will employees in the private sector. Such workers may be fired for any reason, including blogging.

They do have, however, a few protections. First, a terminated blogger can allege discrimination if his blog discloses his race, religion, homosexuality, etc. Second, an employee is likely protected by the National Labor Relations Act if she uses her blog to discuss wages, benefits, or other terms and conditions of employment, or to try to unionize her workplace. Finally, whistleblower laws may protect employees who blog about certain matters of public interest.

Before you decide to terminate, keep in mind that firing an employee without notice for off-duty blogging may damage employee morale or result in bad press for the company. The British bookseller Waterstone’s even experienced a public boycott when it fired a long-term employee because of his web site, partly because the company had no guidelines about blogging.

Adopting a reasonable policy that expressly deals with blogging is one way for a company to try to ensure employees do not write blogs that cross the line, and also to protect the company against lawsuits by fired bloggers. The policy should advise employees that any blog:

• Should include a disclaimer that the opinions in the blog belong to the author alone;

• May not be used to disclose confidential information belonging to the company or others;

• May not include content that negatively reflects on the company, its customers, or its employees, or anything sexually explicit, harassing, discriminatory, or embarrassing; and

• May not use the company’s logo, trademark, trade name, slogan, or graphics.

Although a blogging policy is by no means required, employees are less likely to cry foul for violating the rules if they know in advance what the rules are.

Christine J. Wichers is a partner in the labor, employment and benefits law group at Choate, Hall & Stewart LLP in Boston. She can be reached at [email protected]

Christine Wichers

Choate, Hall & Stewart LLP