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.
However, this is not to suggest that employees are entitled to unlimited protection for all statements made on blogs. Although this is an emerging area of law with little guidance from case law, it is likely that an employee who blogs or posts a comment encouraging customers of his employer to move their business to a competitor could be legally fired for breach of fiduciary duty, whether or not the employee had posted the statement from home or work. Also, an employee cannot harass, discriminate, or intimidate a fellow co-worker via a blog. If something is illegal to communicate in the office, it is also illegal to write it in a blog.
Does your employer have a blogging policy?
Like policies regulating employee e-mail, instant messaging, and Internet usage, a few companies are beginning to develop policies and procedures for dealing with employee blogging activities, both personal and business-related. As employee blogging becomes more pervasive, many companies will likely implement new policies.
Companies are permitted to regulate business-related messages, including comments that are damaging to their reputation, that are being disseminated by their employees on blogs, both during work hours and outside of work. Additionally, companies must also react to any harassing messages employees post on blogs. Finally, companies can regulate and monitor employees’ use of company telecommunications networks and equipment—including when company equipment is used to maintain personal blogs.
Employees should find out if their company has a blogging policy to determine if they are permitted to blog during working hours or using company equipment. In an abundance of caution, employees may want to limit personal blogging to after work hours using a personal home computer.
Can blogging hurt your chances of being hired?
Perhaps Mr. Edwards might have avoided much unwanted media attention had he discovered Ms. Marcotte’s and Ms. McEwan’s blogging activities before offering them employment. On the other hand, had Mr. Edwards known about their blogs, would he have been within his rights to fail to offer them employment? As with many legal questions, the answer depends on the specific circumstances.
Along with creating new blogging policies, some companies are developing procedures for confronting the issue of employee blogging head-on during the interview process. Most information on the Internet is publicly available and companies do not need authorization to research employee blogs; however, employers may begin to include a question about blogging activities on applications. Such a question provides a good opportunity to proactively discuss any blogging activities an employee participates in. Also, when commenting on blogs or posting to your own blog, it is important to remember that while your current employer may not have an issue with it, you never know what type of job you may be seeking later on in life.
While most employee blogging is not a problem for employers, it is important to remember that employees do not have unlimited free speech rights when it comes to blogging. Accordingly, employees should keep the following in mind when blogging:
- Employees should not disclose confidential or proprietary information or company intellectual property on a blog;
- Employees should be mindful of the fiduciary duty they owe to their company when blogging;
- Most employers restrict use of company computers for business-related purposes only and Internet usage of company network and computers can be monitored; and
- Employees should never use obscene, discriminatory, or harassing language in communications from the company’s network or equipment.
However, employees have the same free speech rights when it comes to blogging as they do in other aspects of their lives, including the right to religious and political speech. Most importantly, employers cannot retaliate against an employee for exercising his or her free speech rights. Using common sense and being mindful that the Internet captures an instant and diverse audience will help all employees navigate the potential pitfalls of blogging.
Written by Alexis Pollack for Damsels in Success. Adapted from an article published in The New York Law Journal. Reprinted with permission from the April 9, 2007 edition of the New York Law Journal. © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.