As the proliferation of media coverage of employee blogging reflects, workplace issues associated with employee Internet activity is a hot topic for business. These are thorny issues for employers because they present competing and sometimes conflicting legal considerations.
On one hand, employers must avoid running afoul of their employees’ legal rights. However, these concerns must be balanced with employers’ potential liability for defamatory and harassing comments, the losses associated with disclosure of sensitive information and their data privacy obligations.
Weblogs, MySpace and Internet bulletin boards all pose risks for employees and employers alike. Individual state laws, federal statutes and constitutional protections do not, in all cases, provide employees carte blanche to publish, even anonymously, content that is anti-employer or in violation of established company policy. Despite the fact that blogs come under the umbrella of personal expression, disciplinary action can be levied against employees for the content they put on the internet.
Conversely, employers need to be careful to avoid running afoul of employee privacy rights, rights under the National Labor Relations Act, antidiscrimination statutes and whistleblowing statutes. Further, if the blogging is done off-duty on an employee’s personal computer, the employer must be aware of state and local statutes prohibiting discipline for lawful off-duty conduct.
Against the backdrop of the employer/employee relationship is the very real risk of liability to a third party resulting from Internet activity. Employee Internet activity can risk the release of private data, trade secrets and other sensitive material that can put a company in a precarious legal position.
Because these workplace issues have only recently come to light, case law remains murky on the subject. Courts have ruled both for and against employers in Internet activity-related suits. “Employers should establish and communicate a written Internet content policy,” advises William Nolan, partner in Squire Sanders’ Columbus office. “In the absence of a communicated policy, employers face additional risk of liability for employee Internet activity and wrongful termination suits.”