Bloggers at Work
Weblogs, or "blogs"
for short, are one of the hottest issues being discussed in the media right
now. Blogs are essentially on-line journals used
to communicate information to the general public. They are regularly
updated web pages filled with commentary and links to other sites. Prolific
bloggers update their blogs
every few minutes or hours.
Blogs may simply be one person's ramblings, but
often the blog specializes in one issue. The issue can be as broad as
conservative politics or as narrow as a day in the life of a caterer in New York. There have
been estimates that there could be up to about 8 million adult bloggers on the Web, and up to a quarter of Internet
users read them, according to two November surveys by Pew Internet &
American Life Project. At the same time, 62 percent of users still don't
know what a blog is.
As
blogging has spread, it has also crept into the
workplace. Some companies use blogs at work to
communicate information and manage projects. Usually, company based blogs are not accessible to the general public and may
be set up on the company's intranet system.
There
is growing concern, however, that bloggers are
using personal blogs to discuss and complain
about their workplace. Companies concerned about their reputation and their
brands are realizing that blogs might pose a
threat to them and are trying to figure out how to respond.
Problem Bloggers
Blogs pose numerous concerns for employers. The
"blogosphere," as it is often called,
is a very casual atmosphere. Bloggers are often
anonymous. This atmosphere may lead people to say things that they would
not normally say in a face-to-face discussion and may not want written down
and recorded.
Disgruntled
employees may use blogs to complain about work,
co-workers, and actual or perceived mistreatment. For instance, the
Christian Science Monitor reported the case of one blogger,
a features writer for the St. Louis Post-Dispatch, who had a blogging alter-ego with a fake name and routinely
commented on the newspaper's stories in less than flattering terms.
Another
blogger, a features writer for a North Carolina
newspaper, kept a blog about the newsroom. She called it the
"Sarcastic Journal" and talked about the foul-mouthed female
reporter, the overweight sportswriter, and the co-worker who hoarded free
books sent in for review. When the paper found out about the journal, the blogger was fired.
Blogs may threaten confidential or proprietary
company information or just information that the company wants to keep
private. For instance, a social networking website, Friendster,
reportedly fired an employee after she discussed the company's technical
problems on-line. A Google employee commented on the company's financial
condition and was also fired.
Companies
may simply feel some blogs damage the corporate
image they want to portray. For instance, a flight attendant for Delta Air
Lines was fired after posting some semi-provocative photos of herself on her personal web blog. In one photo her skirt
is hiked up. In another, she is leaning over the seats with her blouse partially
unbuttoned and a small portion of her bra showing. According to the flight
attendant, her supervisor told her she was being terminated for
inappropriate photos in a Delta uniform. Delta may have been concerned
because it has fought hard against the overt sexualization
of flight attendants that was prevalent in the 1970's.
How Are Companies Responding
Many
companies are just learning about blogs and the
vast majority does not have written policies to deal with them.
One
of the most widely discussed cases involves Niall Kennedy, an employee at Technorati, a small San Francisco- based company that,
ironically, tracks blogs. Niall was terminated
after posting his own blog - - a satiric image about the
increasing fears corporations have about blogging.
The company received complaints about the image and asked Kennedy to
reconsider his posting. Kennedy complied and took the posting off.
While
Kennedy was not terminated, many companies who discover their employees blogging about them
have apparently not been shy about taking action against the employees. The
Society for Human Resources Management surveyed 279 human resources
professionals and found that 3 percent had disciplined employee bloggers. A freelance journalist, Curt Hopkins, has
documented more than 20 cases of bloggers
terminated for their blogging.
Can Employers Terminate For Blogging?
The
question of whether an employee can be fired for personal blogs will have to be examined on a case-by-case basis.
It will depend on the content and context of the blog, what protections the
employee might have, and any direct or potential damage to the company.
In
California,
employees generally are protected from getting fired for off-duty conduct
under Labor Code sections 96 and 98.6. However, an exception exists where
the conduct is in direct conflict with the employer's interests or
would disrupt the company's operations. Bloggers
who post information that is in conflict with the company's interests or
could harm the company take the risk that they will ultimately be fired.
Employees
in California
also may enjoy greater protections than in other states because of our
strict right to privacy laws and general protections for employees. In most
states, private sector employees generally do not have a free speech right
in the workplace. However, the California Supreme Court, in a case
involving e-mail, held that the employee had a First Amendment right to
complain about a corporate practice. The content of the e-mails was found
to be protected speech. Intel Corp. v. Hamidi,
30 Cal.
4th 1342 (2003). California
law also protects workers from retaliation for their political views.
Union
employees may enjoy protections against termination for off-duty activities
as part of a collective bargaining agreement. Even non-union employees may
be protected under the National Labor Relations Act if they are
communicating with other workers about "wages, hours, or working
conditions."
But
employers do have remedies. Employers can enforce confidentiality or trade
secret agreements. Employers can bring defamation or libel claims against bloggers who make defamatory or libelous comments that
are false and cause harm. Employers can sue for interference with business
prospects. Moreover, even protections for off the job conduct are limited
when the conduct is clearly in conflict with the employer's interests.
Tips for Employers
- Implement and
enforce confidentiality agreements that forbid posting of confidential
information, trade secrets or proprietary information on the Internet,
including blogs, and in e-mail
communications.
- Consult legal
counsel if the disparaging blogs are false
or damaging to business.
- Consider a blogging policy. For instance: don't post obscene,
defamatory, libelous, or harassing or threatening material; don't post
confidential material; indicate that the views expressed are your own;
communications must not interfere with your work duties or
responsibilities. Have the policy reviewed by counsel.
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