Former Senator John Edwards faced a problem while running his presidential campaign that many businesses of all sizes can expect to face in the future. After Mr. Edwards hired two employees for his presidential campaign staff, Amanda Marcotte and Melissa McEwan, he later discovered that they were both well-known bloggers who had frequently expressed views diametrically opposed to the opinions he has publicized as a part of his campaign for presidency. Mr. Edwards was confronted with two options: fire or retain the bloggers. His solution: keep Ms. Marcotte and Ms. McEwan on his staff, but distance himself from the views espoused on their blogs.
This might have been an appropriate response by a candidate seeking voter approval. But, would other companies have been so lenient? Would an employee be able to sue for retaliation if he were fired in connection with a comment he posted on a personal blog from home complaining about harassment at the company or sending a union organizing notice? Would an employer be within its rights to fire an employee for bragging that he was having an affair with a direct report on his personal blog? There are no easy answers to these questions. Solutions can only be suggested based on a case-by-case analysis. The issues these questions raise, however, highlight that employee blogging is at the forefront of tough issues that both employees and employers must navigate together.
Not all speech is protected.
A brief perusal of postings on various blogs reveals that people feel free to say whatever they want on blogs, and in some instances, without giving much thought to the fact that information on blogs is published immediately to a potentially infinite audience, including their employers. Or, maybe many bloggers realize that their employers may discover their blogs and feel protected by the concept that this is a free country where individuals have a right to freedom of speech.
Generally, an employee cannot be fired for engaging in legally protected activities. For example, an employee complaining of discrimination by a colleague or supervisor on her personal blog would most likely be protected from any adverse employment action in response to the complaint by federal, state, and local anti-discrimination statute. Similarly, an employee opinion on a blog that the pharmaceutical company she works for had destroyed research suggesting that one of its drugs could be fatal might be protected from retaliation under a whistleblower statute. Finally, an employee blog post related to the benefits of unionizing a work force would most likely be considered protected activity under the National Labor Relations Act.
