Blogging has joined the growing number of risks facing employers in this technological age. While many employers have written employment policies covering employee use of company computers, e-mail, and the Internet, many do not have policies covering employee blogging. Given the emergence and increasing popularity of blogging, employers should consider written policies on blogging before problems arise.
A blog (shorthand for "web log") is "an on-line personal journal with reflections, comments and often hyperlinks provided by the writer," says Merriam-Webster's Collegiate Dictionary (11th ed. 2005). Blogs are rapidly evolving. They have become a prevalent method of self-expression today and essentially function as online personal diaries. They can cover any topic and contain written comments as well as images or pictures. They invite and solicit reader feedback.
The number of blogs are growing every year with tens of millions of blogs already existing and new blogs being created every day. According to Technorati, a Web site that tracks blogs, there are over 175,000 new blogs every day and bloggers are constantly updating their blogs with over 1.6 million posts per day, or over 18 updates a second. (http://www.technorati.com) Accessible on-line, blogs extend to a global audience. Some have compared the recent phenomenon of blogs to the use of e-mail just ten years ago.
Considering the powerful and extensive reach of blogs, employers are increasingly concerned about what employees may be blogging on their personal websites. Employee blogging has employers concerned about protecting the company's business interests, reputation, and risk of liability for an employee's conduct on a blog. One area of concern is the release or disclosure of confidential or proprietary information in blogs. Another area of concern is disparaging remarks in a blog about the employer, supervisor, another employee, or a customer. Employers are also right to fear liability for harassment or retaliation or other unlawful content.
As employers faced the emergence of the Internet and email, employers are now facing blogging. There have been a number of cases in recent years involving the termination of employees for the content of their blogs. The issues created by these electronic communications within and without the workplace, however, have hardly begun to be settled by the court.
Blogs as a means of communication raises new questions about how far employers should go in managing an employee's on-line activities and whether employment policies on blogging are appropriate. Under the at-will doctrine in New Hampshire, an employer can generally discharge an at-will employee at any time for any reason, just not an illegal reason. Thus, with some limitations, private employers may have the right to discipline or terminate an employee for what the employee writes in a blog.
Employers considering taking any such action, however, should keep in mind that certain blog content may fall within a protected category to limit an employer's response. For example, there are protections for employees under federal and state whistleblower and anti-discrimination laws and the National Labor Relations Act (NLRA) prohibits employers in all workplaces, whether unionized or not, from disciplining employees for engaging in "concerted activity." Additionally, individual employment agreements with employees may limit an employer's actions.
Keeping these important legal limitations in mind, employers should consider taking steps to protect against the risks of employee blogging. In this effort, employers should consider a written employment policy on blogging that provides a clear explanation of what is prohibited. As with all employment policies, a policy that has been reviewed by legal counsel may provide employers with options for taking any appropriate disciplinary action. Below are several tips on what a blogging policy may include:
- Reiterate that company equipment, including computer equipment and software, Internet access, and e-mail and voice-mail systems, is provided for business purposes and is the property of the employer;
- Include blogging in any general restriction against using company equipment to communicate on the Internet (It is noted that some companies may use blogging for marketing or as part of an employee's job duties. In those cases, an employer should prohibit blogging on company equipment for personal uses.);
- Reiterate that employees must not disclose in blogs any information that is confidential or proprietary to the company or to any third party that has disclosed information to the company and that employees must abide by all non-disclosure and/or confidentiality policies;
- Make clear that the employer reserves the right to take disciplinary action up to and including termination against employees for making any threatening, offensive, or disruptive messages or images; among those which are considered offensive are any messages or images which contain sexual implications, racial slurs, or any other comment that offensively addresses someone's age, sex, race, color, religious beliefs, national origin, veteran status, disability, or other category protected by applicable law;
- Make clear that the employer reserves the right to take disciplinary action up to and including termination against employees for making any defamatory, libelous or slanderous comments when discussing the employer, supervisors, employees, customers, vendors, and/or competitors using company equipment
- Remind employees that certain employer information is trademarked or copyrighted and not to be reproduced without permission of the employer;
- Require employees to make clear in their blogs that the views expressed in their blogs are theirs alone and not those of the employer (it may be helpful to draft disclaimer language the employer is comfortable with);
- Provide a resource for employees who may not know whether certain conduct is prohibited under the policy;
- Make clear that the employer reserves the right to take disciplinary action up to and including termination against an employee for any violation of the policy or any other company policies.
While it is not always clear what an employer should do in response to an employee blog given the above legal considerations, employers need to recognize the risks associated with employee blogs and consider an appropriate written employment policy. There is usually a balance of legal and business considerations that need to be considered. Employers should consult with legal counsel before adopting an employment policy on blogging or before taking any disciplinary action against an employee for a blog.
Jennifer Parent is a Director in the Litigation Department of McLane, Graf, Raulerson & Middleton, Professional Association. Jennifer can be reached at (603) 628-1360 or [email protected]. The McLane Law Firm is the largest full-service law firm in the State of New Hampshire, with offices in Concord, Manchester and Portsmouth. www.mclane.com