Employee Blogging

In addition to the vastly increased audience that comments or photographs posted on a blog may reach, blogging offers employees the opportunity to be anonymous or to use pseudonyms in their postings. Although with some effort the identity of an employee blogger ultimately may be ascertainable, employees may post messages or photographs on blogs more freely than they otherwise would due to a false sense of security in their perceived anonymity. Thus, employers may face a situation in which a blogging employee — disgruntled or not — has what he or she believes is anonymous, unfettered access to the public, in postings which can be searched with relative ease.

Potential Benefits to Employers

Notwithstanding the concerns outlined above, not all employee blogging is detrimental to employers. Indeed, some companies even encourage employee blogging by offering employ-ees server space for personal blogs or sponsoring company blogs.

Occasionally, employers may see benefits from an employee's blogging. For example, an individual's statements that describe the company's products or personnel in positive or enthusiastic terms may be viewed by potential customers or applicants, potentially increasing business or attracting more desirable candidates. Further, even where the content of a blog posting is less than stellar, companies may see increased product sales simply by virtue of people talking about the product or service online (akin to a “no press is bad press” theory). Stated another way, some companies have found that the more buzz that is generated about their products, the higher the sales of that product, whether due to curiosity or otherwise.

Moreover, company-sponsored blogs may be a useful tool for answering questions and communicating with the public about a company's products or services in “real time”. Alternatively, some companies use project-based blogs for internal communication and information organization and storage, typically through their company's respective intranet system.

In addition, some employers screen applicants using the Internet and its countless blogs. An applicant's blog postings may provide useful information with respect to current or past employment. More generally, an applicant's blog postings may provide insight as to an applicant's personality to determine whether he/she is a good fit for the company, or whether the individual is actively involved in and knowledgeable about his or her field. Finally, some employers conduct blog searches on existing employees for similar reasons, including in connection with promotion decisions.

Employee Discipline/Termination

Several examples of alleged termination for employees' blogging activities have recently emerged, including the following:

• A flight attendant at Delta was allegedly fired from her job after her employer became aware that an “inappropriate” photograph in which she was wearing her uniform was posted on her blog;
• A copy shop employee was allegedly terminated when Microsoft became aware that he posted a photograph of Apple computers being delivered to Microsoft headquarters;
• An ESPN columnist was reportedly fired for comments made on his blog;
• A computer programmer was allegedly terminated by Friendster for posting work-related information to her personal blog;
• A Starbucks employee was allegedly fired for disparaging remarks that he made against a supervisor and the company on a blog; and
• A Google employee was allegedly terminated for postings he made to his blog in which he commented on his employer and his job.

Other companies that have reportedly fired employees for their blogging activities include Wells Fargo, The Houston Chronicle, and Kmart. One need only peruse the Internet's countless blogs to discover examples of employees who allege discipline and/or termination from their jobs at least in part as a result of their blogging — including where their blogs suggested past recreational drug use, employment–related or other lawsuits, or unprofessional conduct. Other employers, such as CNN and The Hartford Courant, have reportedly requested that their employees cease blogging and/or remove personal blogs.

An Employer's Options

The recent increase in workplace-related blogging and the related potential legal issues associated with such blogging has led a number of employers to ask what, if any, actions may lawfully be taken against an employee blogger. In short, an employer's ability to refuse lawfully to hire an applicant, or discipline/terminate an employee for blogging depends on several factors. One such factor is whether the employee is blogging on or off company time (and whether he or she is using a company computer to do it). Stated another way: Is an employee blogging when he or she should be working, or has an employee blogged on his or her own time, using his or her own computer, from the privacy of his or her own home? In the latter case, whether an employee may legally be disciplined or terminated for blogging depends on federal and state law, and the specific circumstances involved.

Federal and State Law

Many employees expect the First Amendment to protect their blog postings. The First Amendment limits governmental restrictions on speech, however, and generally does not restrict the ability of a private employer to discipline or terminate an employee. That said, employers should ensure that disciplining or terminating an employee (or not hiring an applicant) based on blogging does not violate applicable federal laws, such as: the National Labor Relations Act (which protects certain employees' discussions regarding wages, benefits, and other terms and conditions of employment); or federal anti-discrimination statutes, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or the Age Discrimination in Employment Act (which prohibit employers from discrimination based on protected classifications). Employers should also ensure that their actions do not violate state anti-discrimination statutes, or whistleblowing laws.

In addition, employers should also consider other potential state barriers to disciplining or terminating an employee for blogging. Several states prohibit an employer from discriminating against an employee on the basis of the employee's off-duty use of “lawful products” or the use of consumable products (such as tobacco or alcohol). Further, a handful of states more severely limit an employer's ability to discipline or terminate an employee based on conduct that occurs outside of working hours (with statutorily enumerated exceptions).

For instance, New York employers should consider New York's “Recreational Activities Law,” which prohibits (with enumerated exceptions) discrimination against an employee for engaging in certain “political activities” (eg, campaigning for a candidate for public office, or participating in fund-raising activities for the benefit of a candidate) and “recreational activities” (eg, lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for a recreational purpose, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material) outside of work hours, off of the employer's premises and without the use of the employer's equipment or other property. Similarly, employers in other states, particularly California, Colorado, and North Dakota, should consider whether disciplining or terminating an employee (or failing to hire an applicant) for certain lawful conduct occurring during non-working hours away from the employer's premises may violate statutory protection afforded to individuals under state law.

Policies/Contractual Obligations

In addition to considering whether federal or state law prohibits a private employer from taking disciplinary action on the basis of the employee's off duty conduct, an employer should also consider several additional factors before taking any adverse employment action against an employee-blogger. For instance, an employer should look to whether or not an employee's blogging, even if off-duty, violates (or is condoned by) the employer's policies or past practice. In other words, has the employer previously taken action against employees for their off duty activities or does it as a matter of policy stay out of its employees' personal lives? Do employer policies require/encourage professionalism or standards both on and off duty that may be violated by an employee's adverse blogging?

It is important to bear in mind that many employees are employed “at-will,” meaning they may be fired (or quit) with or without notice and with or without cause. This does not, however, give employers free reign; in addition to the above considerations, employers should be wary of selectively disciplining employees or enforcing policies related to blogging: if an employer is aware of certain employees' blogs, yet takes no action against them, they may face allegations of discrimination if they take action against other employees for similar activities. Such allegations have been brought by at least one of the employees described above. Specifically, the employee filed a sex discrimination claim with the EEOC against her former employer, alleging that the employer did not take similar action against male employees who engaged in similar behavior.

An employer should also consider whether the particular employee is covered by a written employment agreement or collective bargaining agreement that imposes limitations on an employer's imposition of discipline and/or termination. For example, it will be a highly specific inquiry as to whether an employee's blogging meets the requisite standard for an employee who contractually may only be disciplined or terminated “for cause.” Finally, an employer may consider the potential for negative publicity resulting from the discipline or termination of an employee for blogging as weighed against the potential harm which may result from the blog.

Recommendations

No one-size-fits-all solution exists to solve every potential problem resulting from employee blogging. Nonetheless, employers should consider implementing the following measures in an effort to minimize the potential dangers of employee blogging:

• Develop, communicate, and enforce a policy governing the confidentiality of company information, including confidential, proprietary, and otherwise sensitive company information. Specify categories of information the employer deems confidential and state the consequence of policy violations.
• Develop, communicate, and enforce a policy prohibiting the taking of photographs in the workplace (including photographs taken with mobile telephones) to minimize the likelihood of images appearing on a blog that reveal confidential, proprietary, or otherwise sensitive information or trade secrets.
• Develop, communicate, and enforce policies related to professionalism, ethics, and conflicts of interest that provide employees with an employer's expectations both on and off duty.
• Develop, communicate, and enforce a policy that includes blogging, as well as employees' use more broadly of an employer's computer systems, and online activities. State the potential consequences of policy violations so that the company's position on blogging is clear to all employees.
• Monitor the Internet and search for blogs that contain the company's name, products, and/or names of personnel.
• Develop, communicate, and enforce a policy governing what is and is not appropriate content for a company-sponsored blog.
• Secure, including through passwords or other means, company-sponsored blogs to prevent their unauthorized viewing and protect the confidentiality of posted information.
• Consult with counsel before disciplining or terminating an employee (or not hiring an applicant) based on blogging. As discussed above, federal or state laws, contractual obligations, employer policies and past practice, and other considerations may be implicated in determining whether such actions are lawful and appropriate.

In conclusion, although it is likely that the number of individuals who engage in blogging will continue to increase, employers can greatly minimize the potential legal and business dangers related to employee blogging by implementing the relatively inexpensive and simple measures outlined above.

Albert J. Solecki, Jr. is a partner in the Labor and Employment Law Practice Area at Goodwin Procter LLP and Chairman of its New York Office. Melissa G. Rosenberg is an associate in Goodwin Procter's Labor and Employment Law Practice Area, resident in the firm's New York office.

A growing number of employees are blogging (posting comments, photographs, and even audio streams, to an online diary or journal), both at work and at home. The proliferation of workplace-related blogging has created an additional legal minefield to be navigated by the growing number of employers whose workforce has access to computers, the Internet and related electronic information. This article provides an overview of some of the more significant legal and business issues facing employers whose employees engage in workplace-related blogging, and offers recommendations for such employers to consider in an effort to minimize the potential for legal liability associated with such blogging.

Potential Problems for Employers

Employers may face a number of adverse consequences as a result of their employees' blogging. The most obvious of these problems is decreased productivity from current employees who blog on company time when they should be working. Arguably more significant, however, are the following potential problems resulting from employee blogging:

• The intentional or inadvertent leaking of confidential, proprietary or other sensitive company information or trade secrets;
• Defamatory and/or libelous postings;
• Offensive, harassing or otherwise inappropriate postings; and
• Disparaging postings about the employer, its management, or its personnel (so-called “cyber smearing”).

While these potential problems may not necessarily be new issues for employers to address, the nature of Internet blogs greatly exacerbates these dangers. The traditional mechanism by which employees communicated was much more proscribed – ie, around the dinner table or over the proverbial water cooler. Even an e-mail message (which may produce an analogous problem for employers) normally requires the sender to input an addressee into the message, or affirmatively strike commands such as “reply to sender,” “forward,” or “reply to all” before the electronic message is able to be viewed by a third party. In the case of blogging, however, the messages are typically available for public viewing. More-over, blogs are searchable by potential and/or current employers long after they are posted, and may be found with relative ease via readily available search engines.

In addition to the vastly increased audience that comments or photographs posted on a blog may reach, blogging offers employees the opportunity to be anonymous or to use pseudonyms in their postings. Although with some effort the identity of an employee blogger ultimately may be ascertainable, employees may post messages or photographs on blogs more freely than they otherwise would due to a false sense of security in their perceived anonymity. Thus, employers may face a situation in which a blogging employee — disgruntled or not — has what he or she believes is anonymous, unfettered access to the public, in postings which can be searched with relative ease.

Potential Benefits to Employers

Notwithstanding the concerns outlined above, not all employee blogging is detrimental to employers. Indeed, some companies even encourage employee blogging by offering employ-ees server space for personal blogs or sponsoring company blogs.

Occasionally, employers may see benefits from an employee's blogging. For example, an individual's statements that describe the company's products or personnel in positive or enthusiastic terms may be viewed by potential customers or applicants, potentially increasing business or attracting more desirable candidates. Further, even where the content of a blog posting is less than stellar, companies may see increased product sales simply by virtue of people talking about the product or service online (akin to a “no press is bad press” theory). Stated another way, some companies have found that the more buzz that is generated about their products, the higher the sales of that product, whether due to curiosity or otherwise.

Moreover, company-sponsored blogs may be a useful tool for answering questions and communicating with the public about a company's products or services in “real time”. Alternatively, some companies use project-based blogs for internal communication and information organization and storage, typically through their company's respective intranet system.

In addition, some employers screen applicants using the Internet and its countless blogs. An applicant's blog postings may provide useful information with respect to current or past employment. More generally, an applicant's blog postings may provide insight as to an applicant's personality to determine whether he/she is a good fit for the company, or whether the individual is actively involved in and knowledgeable about his or her field. Finally, some employers conduct blog searches on existing employees for similar reasons, including in connection with promotion decisions.

Employee Discipline/Termination

Several examples of alleged termination for employees' blogging activities have recently emerged, including the following:

• A flight attendant at Delta was allegedly fired from her job after her employer became aware that an “inappropriate” photograph in which she was wearing her uniform was posted on her blog;
• A copy shop employee was allegedly terminated when Microsoft became aware that he posted a photograph of Apple computers being delivered to Microsoft headquarters;
• An ESPN columnist was reportedly fired for comments made on his blog;
• A computer programmer was allegedly terminated by Friendster for posting work-related information to her personal blog;
• A Starbucks employee was allegedly fired for disparaging remarks that he made against a supervisor and the company on a blog; and
• A Google employee was allegedly terminated for postings he made to his blog in which he commented on his employer and his job.

Other companies that have reportedly fired employees for their blogging activities include Wells Fargo, The Houston Chronicle, and Kmart. One need only peruse the Internet's countless blogs to discover examples of employees who allege discipline and/or termination from their jobs at least in part as a result of their blogging — including where their blogs suggested past recreational drug use, employment–related or other lawsuits, or unprofessional conduct. Other employers, such as CNN and The Hartford Courant, have reportedly requested that their employees cease blogging and/or remove personal blogs.

An Employer's Options

The recent increase in workplace-related blogging and the related potential legal issues associated with such blogging has led a number of employers to ask what, if any, actions may lawfully be taken against an employee blogger. In short, an employer's ability to refuse lawfully to hire an applicant, or discipline/terminate an employee for blogging depends on several factors. One such factor is whether the employee is blogging on or off company time (and whether he or she is using a company computer to do it). Stated another way: Is an employee blogging when he or she should be working, or has an employee blogged on his or her own time, using his or her own computer, from the privacy of his or her own home? In the latter case, whether an employee may legally be disciplined or terminated for blogging depends on federal and state law, and the specific circumstances involved.

Federal and State Law

Many employees expect the First Amendment to protect their blog postings. The First Amendment limits governmental restrictions on speech, however, and generally does not restrict the ability of a private employer to discipline or terminate an employee. That said, employers should ensure that disciplining or terminating an employee (or not hiring an applicant) based on blogging does not violate applicable federal laws, such as: the National Labor Relations Act (which protects certain employees' discussions regarding wages, benefits, and other terms and conditions of employment); or federal anti-discrimination statutes, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or the Age Discrimination in Employment Act (which prohibit employers from discrimination based on protected classifications). Employers should also ensure that their actions do not violate state anti-discrimination statutes, or whistleblowing laws.

In addition, employers should also consider other potential state barriers to disciplining or terminating an employee for blogging. Several states prohibit an employer from discriminating against an employee on the basis of the employee's off-duty use of “lawful products” or the use of consumable products (such as tobacco or alcohol). Further, a handful of states more severely limit an employer's ability to discipline or terminate an employee based on conduct that occurs outside of working hours (with statutorily enumerated exceptions).

For instance, New York employers should consider New York's “Recreational Activities Law,” which prohibits (with enumerated exceptions) discrimination against an employee for engaging in certain “political activities” (eg, campaigning for a candidate for public office, or participating in fund-raising activities for the benefit of a candidate) and “recreational activities” (eg, lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for a recreational purpose, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material) outside of work hours, off of the employer's premises and without the use of the employer's equipment or other property. Similarly, employers in other states, particularly California, Colorado, and North Dakota, should consider whether disciplining or terminating an employee (or failing to hire an applicant) for certain lawful conduct occurring during non-working hours away from the employer's premises may violate statutory protection afforded to individuals under state law.

Policies/Contractual Obligations

In addition to considering whether federal or state law prohibits a private employer from taking disciplinary action on the basis of the employee's off duty conduct, an employer should also consider several additional factors before taking any adverse employment action against an employee-blogger. For instance, an employer should look to whether or not an employee's blogging, even if off-duty, violates (or is condoned by) the employer's policies or past practice. In other words, has the employer previously taken action against employees for their off duty activities or does it as a matter of policy stay out of its employees' personal lives? Do employer policies require/encourage professionalism or standards both on and off duty that may be violated by an employee's adverse blogging?

It is important to bear in mind that many employees are employed “at-will,” meaning they may be fired (or quit) with or without notice and with or without cause. This does not, however, give employers free reign; in addition to the above considerations, employers should be wary of selectively disciplining employees or enforcing policies related to blogging: if an employer is aware of certain employees' blogs, yet takes no action against them, they may face allegations of discrimination if they take action against other employees for similar activities. Such allegations have been brought by at least one of the employees described above. Specifically, the employee filed a sex discrimination claim with the EEOC against her former employer, alleging that the employer did not take similar action against male employees who engaged in similar behavior.

An employer should also consider whether the particular employee is covered by a written employment agreement or collective bargaining agreement that imposes limitations on an employer's imposition of discipline and/or termination. For example, it will be a highly specific inquiry as to whether an employee's blogging meets the requisite standard for an employee who contractually may only be disciplined or terminated “for cause.” Finally, an employer may consider the potential for negative publicity resulting from the discipline or termination of an employee for blogging as weighed against the potential harm which may result from the blog.

Recommendations

No one-size-fits-all solution exists to solve every potential problem resulting from employee blogging. Nonetheless, employers should consider implementing the following measures in an effort to minimize the potential dangers of employee blogging:

• Develop, communicate, and enforce a policy governing the confidentiality of company information, including confidential, proprietary, and otherwise sensitive company information. Specify categories of information the employer deems confidential and state the consequence of policy violations.
• Develop, communicate, and enforce a policy prohibiting the taking of photographs in the workplace (including photographs taken with mobile telephones) to minimize the likelihood of images appearing on a blog that reveal confidential, proprietary, or otherwise sensitive information or trade secrets.
• Develop, communicate, and enforce policies related to professionalism, ethics, and conflicts of interest that provide employees with an employer's expectations both on and off duty.
• Develop, communicate, and enforce a policy that includes blogging, as well as employees' use more broadly of an employer's computer systems, and online activities. State the potential consequences of policy violations so that the company's position on blogging is clear to all employees.
• Monitor the Internet and search for blogs that contain the company's name, products, and/or names of personnel.
• Develop, communicate, and enforce a policy governing what is and is not appropriate content for a company-sponsored blog.
• Secure, including through passwords or other means, company-sponsored blogs to prevent their unauthorized viewing and protect the confidentiality of posted information.
• Consult with counsel before disciplining or terminating an employee (or not hiring an applicant) based on blogging. As discussed above, federal or state laws, contractual obligations, employer policies and past practice, and other considerations may be implicated in determining whether such actions are lawful and appropriate.

In conclusion, although it is likely that the number of individuals who engage in blogging will continue to increase, employers can greatly minimize the potential legal and business dangers related to employee blogging by implementing the relatively inexpensive and simple measures outlined above.

Albert J. Solecki, Jr. is a partner in the Labor and Employment Law Practice Area at Goodwin Procter LLP and Chairman of its New York Office. Melissa G. Rosenberg is an associate in Goodwin Procter's Labor and Employment Law Practice Area, resident in the firm's New York office.