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Creating an effective blog policy to limit employer liability

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in Discrimination and Harassment,Employment Law,Human Resources

It seems like everyone has a blog. Even The New York Times’ web site devotes space for several reporting and opinion blogs. People write blogs to update friends and families about the events in their lives. Other blogs focus on hobbies, politics or entertainment. But blogs about work may not be so innocuous.

Employment lawyers have been warning for some time that blogs will one day be a volatile issue in the workplace. Recent events show that day has arrived.

For example, a member of the Cherokee County, GA, Planning Commission provoked a firestorm of controversy after an online post she made advocated dismantling Israel to achieve peace in the Middle East. The outcry forced her to resign.

Terminating an individual’s employment for inappropriate comments on a blog even has a name—“doocing,” named for an employee who was fired for comments on her blog at www.dooce.com.

Blog posts can be explosive because bloggers often type their thoughts as if they were chatting with their friends on the telephone or around the backyard barbecue. But unlike offhand conversations, blogs are permanent and easily shared with others. Blog posts frequently become the contents of other blogs, resulting in a written chain reaction that takes the content out of the control of the original author. A post intended for a few friends could make its way to the “Drudge Report” without the author even knowing it!

Blog policy limits employer liability

Employees’ blogs can hurt companies in several ways. Employees could publish information that a company doesn’t want to share—trade secrets or criticism of the company, for example. Many Internet sites have blogs notorious for their sexual content. If an employee’s blog content is of a sexual nature concerning fellow employees, those posts could form the basis of a harassment or discrimination suit. Or, as with the Georgia county planning commission member previously mentioned, the content could create anger among co-workers and customers.

Banning employees from the “blogosphere,” however, is probably not the solution. A blog ban may violate laws that some states have regarding conduct away from work. Nonetheless, companies should institute a blog policy because blogs can affect the workplace.

Here are six steps toward formulating a sound company blog policy.

1. Consider culture. Your blog policy should match the kind of company you are. Apple and Microsoft find it appropriate for their employees to blog about their workday, and even encourage them to do so. But, freely blogging about the typical workday in a nuclear weapons plant would not be such a good idea. Clearly different rules apply when discussing classified or confidential information. Each company must decide whether it wants a complete prohibition or something less stringent.

2. Prior permission. If your company sponsors a blog linked to the company’s web site, consider including a policy provision requiring the company to approve all posts before they’re published. If you allow uncensored blogging, then you may be viewed as approving of all published posts. The company could be held responsible for the content of the blog if it is linked to a company web site.

3. Blog on your own time. For most employers, the policy should include, at a minimum, a prohibition against employees blogging on company time and using company equipment. Allowing blogging during work hours not only hurts productivity but also could support a harassment claim or other claims against the company. The absence of such a limitation could be viewed as company approval.

4. Speak no evil. Private employers should consider prohibiting workers from writing blogs that are detrimental to the company’s business. These types of blogs also could be seen as a violation of the company’s policy against conflicts of interest.

5. Civil and safe. Inform employees that all blog communications regarding the company and its employees must comply with the company’s anti-harassment policy and workplace-violence policy.

6. Personal responsibility. The blog policy should state that employees will be held responsible for their posts. The employer may discipline employees up to and including termination based on the content of an employee’s blog. The company should consider blogging to be no different than other forms of communication.

Most employees will self-regulate their blog posts, but others will view the blogs as a way to spew their truest thoughts and feelings about any topic, including the workplace. As is usually the case with risk assessment, employers must prepare for the few who will not police themselves. Establishing a blog policy will help an employer minimize its exposure if and when employees misuse their blogs—even unintentionally. 

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