June 2005

Blogs—short for "web logs"—have fast become a thorn in employers' sides. Blogs are online public diaries, and bloggers, as the posters are known, often use their blogs to write about issues that are important to them—including their jobs. According to surveys by the Pew Internet & American Life Project, blog readership jumped by 58 percent in 2004, with more than 8 million Americans reporting that they have their own blogs.

The risks for employers from employee blogs are similar to those stemming from employee e-mail and instant messaging, ranging from disclosure of sensitive information, negative publicity, and defamation to lost work productivity when the blogging occurs on company time. What's more, you could get sued if bloggers hold themselves out as representatives of your organization and post offensive material online.

In this first installment of our two-part series, we'll examine the blog-related problems employers face and explain when you can and can't fire an employee for blogging. Next month, in Part 2, we'll provide you with practical strategies to prevent and manage blogging problems so that you can protect your company's business and reputation and stay out of court. We'll also provide a sample computer use policy that can be customized to the needs of your business.

Employers' Problems

Recent headlines underscore the serious employer headaches blogs can cause. In a lawsuit in Alameda County Superior Court, Kaiser Permanente recently obtained a temporary injunction against a fired employee, Elisa Cooper—who dubbed herself the "Diva of Disgruntled"—for posting links to confidential patient information on her personal blog. Kaiser argued that Cooper's actions were an invasion of privacy and breached a confidentiality agreement she signed.

A few months ago, search engine Google fired employee Mark Jen after he reflected on life at the company in his personal blog. And last year, Delta Air Lines flight attendant Ellen Simonetti was terminated just weeks after she posted suggestive photos of herself, wearing her Delta uniform, on her website. Simonetti has fired back against Delta by filing a sex discrimination charge with the Equal Employment Opportunity Commission.

Can You Fire a Blogger?

The big question facing employers is whether they can fire an employee over a blog. If the blog contains information about your company that's defamatory, breaches a confidentiality agreement, or reveals your trade secrets, you'll be on sound footing to terminate the employee. Similarly, you can probably fire an employee who is blogging on company time, particularly if such computer use violates your written policy regarding use of company computers. And chances are that you can fire an employee who is publicly bad-mouthing your company, ridiculing a boss, or casting your products or services in a bad light, especially if you have at-will or employee loyalty policies.

A blogger who criticizes his or her employer during off-duty time could argue protection under a special California law that bars employers from demoting, disciplining, or terminating an employee for lawful conduct occurring during nonworking hours away from the employer's premises. How this law applies in the blogging context remains untested in the courts. But an employer in this situation would probably have a strong argument that the blogging was linked to the employee's job—and thus outside the law's protections.

Think Twice

Nevertheless, employers should consider some legal and practical limits before taking adverse action against a blogger, including:

• Employment or union agreements. Carefully review these contracts to ensure that any adverse action you're taking doesn't violate the terms.

• Discrimination and retaliation. Assess whether your actions could be construed as discrimination or retaliation for protected employee activity, including whistleblowing. Inconsistencies in your blogging-related discipline could open you up to bias claims.

• Labor relations laws. Make sure any disciplinary action doesn't violate the employee's rights under federal labor relations laws. For example, employees have the right to discuss with other employees the wages, benefits, and other terms and conditions of their employment. It remains unclear, however, whether such information in a publicly available blog would satisfy the requirement that the communication, to be protected, must be with other employees.

• Free speech. Public employers must take into account whether the First Amendment shields the employee's blogging activity.

• Political speech. Under California law, employers can't control or direct political activities or affiliations of employees and can't threaten employees with termination to coerce or influence them to participate in or refrain from engaging in political activity.

• Fallout from your response. How you react to a nagging blog problem could do you more harm than the original posting did. Before acting, assess the possibility that the employee might sue you, the cost of defending that lawsuit, and the potentially embarrassing media coverage. Also weigh your actions against the possibility that they might put a damper on employee morale.

More Next Month

Next month, we'll give you practical tips to help you protect your business from blogging problems and stay out of court. We'll also include a sample computer-use policy you can tailor to your own needs.

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