Can You Fire an Employee for Blogging?

For private employees, the First Amendment right to freedom of speech provides no protection. That's because the First Amendment to the federal Constitution applies only to the government and does not restrict private employers.

State Constitutions

While the federal constitution does not apply to private employers, some state constitutions do. In these states, such as California, employers need to consider the state's constitutional equivalent to the First Amendment. In most states, however, private sector employees will not be protected under either the federal or their state constitution. However, that does not mean they are without protection.

Off-Duty Statutes

A number of states, such as New York, have enacted broad off-duty protection statutes which may protect off duty blogging. For example, the New York statute prohibits an employer from taking adverse action against an employee for off-duty: 1) po1itical activities; 2) union activities; 3) legal use of consumable products; and 4) recreational activities. The definition of recreational activities is defined relatively broadly to include “sports, games, hobbies, exercise, reading and viewing of television, movies and similar materials.” For some, blogging is undeniably a hobby.

Political Expression Statutes

A number of other states that do not have broad off-duty statutes do have statutes that protect political expression. For example, Nevada law provides that it is unlawful for an employer to make any rule or regulation prohibiting or preventing an employee from engaging in politics. Some blogging is undeniably political.

Title VII

Employers also need to consider the anti-retaliation provisions of the discrimination and other federal and state laws regulating the employment relationship. For example, Title VII prohibits an employer from retaliating against an employee because he or she has “opposed” any unlawful practice. Blogging about perceived discrimination or harassment by the employer may be protected by Title VII.

NLRA

Even if an employee does not allege employment discrimination or harassment, his or her blogging about his or her employment may be protected under the National Labor Relations Act, if he is blogging about terms and conditions of employment affecting not only him or her but also his or her co-workers. This is true even if the employee is non-union.

Common Law Public Policy

Even if the employee's off-duty blogging is not constitutionally or statutorily protected, it may be protected by a state's common law. While the scope of the public policy exception varies from state to state, in some states, this exception could be applied to off duty speech, particularly if it involves an issue of public concern.

Contract

An employer's ability to take action in response to off-duty blogging also may be limited by an individual employment agreement or a collective bargaining agreement that requires “cause” or “just cause” for discharge. The required cause/just cause is likely to exist only if there is a clear nexus between the employee's off-duty conduct and the employer's reputation and/or mission

Employee Relations

Even if an employer has, or probably has, the legal right to take action against an employee for off-duty blogging, that does not mean that the employer should. As always, there are employee relations considerations. Even if an employee does not engage in off-duty blogging, the employee may fear: What's next? Employees who fear that their employer is overreaching may be less productive for or loyal to that employer. Further, there is the practical concern that terminating the employee may lead to more damage than if you had retained them in your control. Bloggers have a lot of passion. Do you really want to give them free time too?

Balance

Accordingly, when it comes to responding to off-duty blogging, there often is not a clear answer as to what the employer should do. Rather, the decision-making process usually involves a balancing of complex and sometimes competing legal and business considerations which may turn on the content of the blog, the employee's position with the organization, and, of course, the state in which they blog. To ensure greater certainty, some management lawyers have joined in the choir of bloggers calling upon employers to develop policies so that bloggers have notice as to what they can and cannot do. However, the same panoply of issues that employers need to consider in deciding how to respond to problematic blogging also apply to whether an employer should have a blogging policy. An employer that develops a policy with regard to offduty blogging may suffer employee relations consequences even from those employees who do not really understand what blogging is.

Further, there also are complicated legal issues in terms of drafting the policy. The employer would have to consider carving out 'protected' blogging (allegations of unlawful discrimination, for example) without inadvertently inviting it. Moreover, if the employer is going to address blogging, why not other kinds of off duty-expression. Shouldn't the employer have a policy on what employees can say if they call talk radio off duty?

Conclusion

Not every issue requires a policy. To the contrary, sometimes employers are better off dealing with distinct problems as they arise as opposed to trying to regulate a broad area of human interaction.

What employees do on their own time is their own business, right? Except when you think it may adversely impact your business. It's one thing for an employee to harbor extreme political views. It's another thing to blog them to the world. An employee's private sex life is, well, private. But what if an employee blogs his or her sexual fantasies to the world? Does an employer have the right to take action against an employee for off-duty blogging it finds offensive or otherwise problematic?

The answer is “Yes,” unless there is specific legal protection for the blogging. After all, an at-will employer can discharge an employee at any time, for any reason, no reason, a good reason or a bad reason, just not an illegal reason. The question is whether and when discharging an employee for off duty blogging would be for an illegal reason.

First Amendment Rights

For private employees, the First Amendment right to freedom of speech provides no protection. That's because the First Amendment to the federal Constitution applies only to the government and does not restrict private employers.

State Constitutions

While the federal constitution does not apply to private employers, some state constitutions do. In these states, such as California, employers need to consider the state's constitutional equivalent to the First Amendment. In most states, however, private sector employees will not be protected under either the federal or their state constitution. However, that does not mean they are without protection.

Off-Duty Statutes

A number of states, such as New York, have enacted broad off-duty protection statutes which may protect off duty blogging. For example, the New York statute prohibits an employer from taking adverse action against an employee for off-duty: 1) po1itical activities; 2) union activities; 3) legal use of consumable products; and 4) recreational activities. The definition of recreational activities is defined relatively broadly to include “sports, games, hobbies, exercise, reading and viewing of television, movies and similar materials.” For some, blogging is undeniably a hobby.

Political Expression Statutes

A number of other states that do not have broad off-duty statutes do have statutes that protect political expression. For example, Nevada law provides that it is unlawful for an employer to make any rule or regulation prohibiting or preventing an employee from engaging in politics. Some blogging is undeniably political.

Title VII

Employers also need to consider the anti-retaliation provisions of the discrimination and other federal and state laws regulating the employment relationship. For example, Title VII prohibits an employer from retaliating against an employee because he or she has “opposed” any unlawful practice. Blogging about perceived discrimination or harassment by the employer may be protected by Title VII.

NLRA

Even if an employee does not allege employment discrimination or harassment, his or her blogging about his or her employment may be protected under the National Labor Relations Act, if he is blogging about terms and conditions of employment affecting not only him or her but also his or her co-workers. This is true even if the employee is non-union.

Common Law Public Policy

Even if the employee's off-duty blogging is not constitutionally or statutorily protected, it may be protected by a state's common law. While the scope of the public policy exception varies from state to state, in some states, this exception could be applied to off duty speech, particularly if it involves an issue of public concern.

Contract

An employer's ability to take action in response to off-duty blogging also may be limited by an individual employment agreement or a collective bargaining agreement that requires “cause” or “just cause” for discharge. The required cause/just cause is likely to exist only if there is a clear nexus between the employee's off-duty conduct and the employer's reputation and/or mission

Employee Relations

Even if an employer has, or probably has, the legal right to take action against an employee for off-duty blogging, that does not mean that the employer should. As always, there are employee relations considerations. Even if an employee does not engage in off-duty blogging, the employee may fear: What's next? Employees who fear that their employer is overreaching may be less productive for or loyal to that employer. Further, there is the practical concern that terminating the employee may lead to more damage than if you had retained them in your control. Bloggers have a lot of passion. Do you really want to give them free time too?

Balance

Accordingly, when it comes to responding to off-duty blogging, there often is not a clear answer as to what the employer should do. Rather, the decision-making process usually involves a balancing of complex and sometimes competing legal and business considerations which may turn on the content of the blog, the employee's position with the organization, and, of course, the state in which they blog. To ensure greater certainty, some management lawyers have joined in the choir of bloggers calling upon employers to develop policies so that bloggers have notice as to what they can and cannot do. However, the same panoply of issues that employers need to consider in deciding how to respond to problematic blogging also apply to whether an employer should have a blogging policy. An employer that develops a policy with regard to offduty blogging may suffer employee relations consequences even from those employees who do not really understand what blogging is.

Further, there also are complicated legal issues in terms of drafting the policy. The employer would have to consider carving out 'protected' blogging (allegations of unlawful discrimination, for example) without inadvertently inviting it. Moreover, if the employer is going to address blogging, why not other kinds of off duty-expression. Shouldn't the employer have a policy on what employees can say if they call talk radio off duty?

Conclusion

Not every issue requires a policy. To the contrary, sometimes employers are better off dealing with distinct problems as they arise as opposed to trying to regulate a broad area of human interaction.