One day you decide to take a few minutes to go online to gather some "intelligence" on what is going on in your industry. You Google around, and land on a site that looks like it might be helpful, then see that it is about your company. Curiosity being what it is, you click and start reading an entry posted under the pseudonym "Sarcastic Journalist": "I really hate my place of employment. Seriously. Okay, first off. They have these stupid little awards that are supposed to boost company morale. So you go and do something 'spectacular' (most likely, you're doing your job) and then someone says, 'Why golly, that was spectacular," then they sign your name on some paper, they bring you chocolate and some balloons. 'Okay, two people in the newsroom just got it. For doing their job.'"
You've been blogged.
Think we're exaggerating? Guess again. This is an actual posting that a North Carolina newspaper recognized as being written by one of its employees. Much to her surprise, the day after the posting, the newspaper fired "Sarcastic Journalist," who said she had "treated the blog as a smoke break."
Have you thought about what you would do if you found that an employee blogged your company?
What's a Blog?
For those of you who are not Web aficionados, a brief introduction may be in order. "Blogs" (short for Web logs) are online personal journals with reflections, comments, and often hyperlinks provided by the writer. An estimated 10 million blogs already are found online, and the number increases daily. People post blogs to share all kinds of information and viewpoints, about anything from politics to, yes, their employers. Especially when a blogger posts an anonymous blog, he tends to be very open. The issue for employers becomes whether and how to restrict employees' Internet activities, both during and outside of work. Employees often believe that whatever they post in a blog is their own business and, since some companies use blogs as a marketing tool and actually encourage their use, several legitimate issues arise for employers.
Problems That Can Arise When Employees Blog
Here are a few of the major problems you may have to address as your employees hop onto the cyberspace highway and start blogging their way into the future:
Harassing or otherwise offensive content: Imagine a blogger speculating that a recently promoted co-worker got the job because she is having an affair with her boss. Or a blogger complains that an employee who the company is accommodating by offering a modified work schedule due to a qualified disability is a "slacker" and the company is doing nothing about it, causing everyone else in the department to have to "cover" for him. Or a blogger commenting that he thinks a co-worker has AIDS and advising other employees to avoid him. You need to address these types of comments. But can you do it and how do you do it when they occur anonymously in cyberspace?
Breach of Confidentiality: A potentially devastating problem could arise if a blogger reveals confidential information. For example, a blogger may complain about a long-term care facility resident for whom she is assigned to provide care. Or a blogger may complain about his workload, revealing information about a new marketing program the company is just about ready to kick off. Or an accounting department blogger may complain about having to work long hours on a big stock deal, inadvertently revealing insider financial information.
Defamation: Of course, the most obvious potential problem is that employees may say things online that could defame the employer, management, co-workers, customers, or competitors. Recall the example mentioned above about the blog comment that a co-worker has AIDS and others should avoid him. Of course, the practical problem to dealing with such a comment is that the more critical or sensitive the comment, the more likely the blogger will have posted it anonymously, perhaps making it impossible to identify the source. Another difficulty is that expression of pure opinion is not defamation, but if the statement implies facts, then it may be defamation, and the line is often difficult to draw. It can get down to a battle over semantics.
Inappropriate content: This can range from disrespectful comments about company management to postings completely unrelated to employment but that may still reflect poorly on the employer. For example, a Delta Air Lines flight attendant who was chronicling her life and adventures online as "Queen of the Sky" lost her job after posting photos of herself in uniform, inside a company airplane. She has now started a "Bloggers Rights Movement" to petition companies to publicize their blog policies. A temporary employee working at Microsoft found himself out of work after he posted on his blog a snapshot of a shipment of Apple computers sitting on a Microsoft loading dock.
It's A Free Country! I Have My Rights!
Many employees operate with the common misunderstanding that the First Amendment protects their right to say whatever they want to say. However, if you're not a governmental employer, your employees do not have First Amendment Rights at work.
But they do have some other rights that you may not have considered. The National Labor Relations Act prohibits employers -- even non-union employers -- from having rules that prevent employees from discussing wages, benefits and other terms and conditions of their employment with other employees. This right extends only to "concerted" (i.e., collective) activity, and blogs usually are done independently. Still, employers should be aware that a blogger might claim he simply posted the blog to generate employee discussion, and therefore, it is protected concerted activity.
Also, some states (but not Indiana) have restrictions on disciplining employees based on blogging an employer. For example, New York prevents discipline based on certain types of out-of-office activity (although there are exceptions, such as illegal activity). However, this law presumably may prohibit an employer from disciplining an employee for blogging in a manner that is not otherwise unlawful.
Another thing to think about is that both federal and state anti-discrimination laws prohibit retaliation against employees who complain of discrimination and/or harassment based on a protected status such as race, sex, or religion. So, for example, disciplining a blogger for complaining online that her boss is a Male Chauvinist Pig may lead to a retaliation claim.
So What Can You Do?
While it would be tempting to take a heavy-handed approach to curb blogging, doing so runs the risk of a backlash of anonymous postings lambasting the company for its "big brother" tactics and for quashing the exchange of ideas. Company decisions to discipline employees for their blogging activities could adversely affect employee morale and public opinion. Still, there are reasonable measures an employer can take to ensure more available options should the need arise:
Add a specific provision related to blogs and chat rooms to your electronic communications or Internet usage policy. Prohibit disparaging the company, its employees, customers, or competitors, either by name or by implication. Caution employees that they must avoid creating the impression that the views expressed on their blogs are anything more than their personal opinions.
Develop a corporate-wide blogging policy. State that employees who post information about the company, its employees, customers, or competitors must make clear the views expressed are theirs alone and do not represent their employer's views. Communicate your expectations that employees treat the company, its employees, customers and competitors with respect. Remind employees of the company's confidentiality policy and their commitments under any signed confidentiality agreement. Ask that employees not post blogs on certain topics for confidentiality and/or legal compliance reasons. Remind employees that their blogging must not interfere with their work commitments. Advise employees to direct questions about the company's blogging guidelines to the designated company official.
The company's policies should put employees on notice of the standards of conduct that apply to their blogging activity. If you learn that an employee has posted a blog violating one or more of your policies, you can address that situation through your normal disciplinary process. Before imposing discipline, however, remember that state laws differ and federal and/or state laws may protect certain communications, so consider consulting counsel before taking disciplinary action against employee bloggers.