by J. Howard Daniel and Jeffrey P. Dunlaevy
Most organizations have comprehensive Internet, e-mail and electronic communications policies that spell out what's acceptable usage and what's not. But few employers have addressed a growing problem: the proliferation of employee Web logs, or "blogs."
Blogs typically take the form of an interactive online journal, with the host composing and uploading informal comments and opinions as well as publishing feedback from other participants.
While blogs run the gamut from political commentary to local gossip, a growing number of them target specific employers and their practices. Many large employers are the subject of multiple blogs and message boards, while smaller employers may be surprised to find out that local workplace issues can be broadcast to a worldwide audience. Employees themselves create some of those blogs.
Not surprisingly, employers have suspended or terminated blogging employees, and those disciplinary actions have generated publicity and threats of litigation. Blogging employees can inadvertently (or purposely) release confidential company information, plus make your organization vulnerable to privacy claims, harassment complaints and other legal risks (see box below).
Key policy provisions
Given those risks, employers need blogging policies in their employee handbooks and policy manuals. Your policy should:
1. Prohibit posting proprietary, confidential or sensitive information. Advise employees which information is confidential. Information that may appear routine on the job site may leave the company vulnerable when it's a mouse-click away from competitors on the Internet.
2. Ban bloggers from mentioning the company name, or have them prominently disclaim any connection between views expressed on their blog and those of the organization. If you are a public employer, you may be limited to requiring a disclaimer, as public employees may have free speech rights that can't be eliminated by policy.
3. Reserve the right to take action if blog postings run afoul of company policy. Providing employees advance notice that off-duty blogging is not necessarily consequence-free will be far more effective than efforts to "unring the bell."
Make sure your policies don't overreach. Employers should avoid any language that might be interpreted as interfering with employees' rights to engage in concerted activity or whistle-blowing activity, or (in the case of public employers) to exercise free speech on issues of public concern.
Under federal, employees are entitled to discuss the terms and conditions of their work with fellow employees. Plus, many state and federal whistle-blower statutes protect employees who raise issues of alleged misconduct by their employer.
For example, when employees use blogs to speak out about their compensation, publicize allegations of securities-law violations or address public issues (such as the treatment of patients at a public hospital), the conduct is likely protected. So, taking disciplinary action against employees under those circumstances is extremely risky.
You should also assume that employees who blog are pretty savvy as to their rights. Several bloggers' rights groups actually instruct bloggers on how to mix "protected" speech into their blogs to take advantage of these legal protections.
Bottom line: Blogging is here to stay, and employers should craft sensible policies that set reasonable limits. Be sure to discuss company expectations with employees. Failing to set limits is increasingly an invitation to confidentiality breaches and liability risks.
J. Howard Daniel and Jeffrey P. Dunlaevy are employment-law attorneys with Ogletree Deakins in the firm's Greenville, S.C., office. They can be reached at jeffrey.dunlaevy @ogletreedeakins.com and howard .firstname.lastname@example.org.
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