The Internet Age has many benefits for employers, including the ability to communicate quickly and effectively with employees. However, the recent increase in “blogging,” or online “diaries,” has increased employer frustration as employees can easily disclose private company matters or criticize their employers online to an entire “internet community.” It is important to know what employers can do to address blogging issues.
Employee blogging may include disparagement of the company or employees, disclosure of insider information, disclosure of proprietary information, and conflicts of interest (e.g. where employee advertising on the site conflicts with company policies or contracts). The current trend indicates court support of an employer’s decision to terminate an employee who engages in conduct detrimental to the company.
Employees whose blogging damages their employer may violate the employees’ duty of loyalty to the company, which includes duties of obedience, confidentiality and loyalty. Insubordination, harmful speech and disparagement of the company or its managers on blogs would likely violate an employee’s duty of loyalty. Recent examples of the perils of employee blogging include a flight attendant posting provocative photos of herself wearing her uniform, a newly-hired Google employee recording his impressions (including criticisms) of his new employer, and a Microsoft employee taking the liberty of posting photos of Apple computers being delivered to his worksite. In each instance the employee was terminated based on the content of his/her blog.
Many employees may cry foul and assert that employer monitoring of their blogs violates their “free speech rights.” However, the First Amendment covers solely government restrictions on speech and, in employment-at-will states such as Illinois, employers are afforded great latitude in terminating disloyal employees. Yet, employers must be extremely cautious when dealing with such situations as there is an obvious need to balance the needs of the employer to maintain its reputation within the community and avoid disclosure of insider information against excessively intrusive monitoring of the employee’s personal time and activities.
Based on the foregoing, employers may wish to consider enacting a general blog policy, in addition to covering blogging in other applicable policies, procedures, and agreements such as harassment and discrimination policies, electronic resources policies, and nondisclosure agreements. Such policies might include policies against removing confidential information from the workplace, use of company information for personal use, such as company photos or employee handbooks, and setting guidelines for company-sponsored blogs. If an employer does not have a current internet usage policy, one should be considered, advising employees that the employer may monitor their internet usage and that they should not use “work time” for personal internet use. Finally, employers should look at the current status of their internet programs to determine whether they are susceptible to mismanagement of electronic data, such as archived e-mails and internet sites. Not only should these policies ensure that employees do not disparage the employer, they should also demand professionalism and confidentiality from the employees.
While blog policies can legally limit certain communications by employees, the policies must not conflict with whistleblower statutes, labor laws and other exceptions to at-will employment. Certain states prohibit termination of employees for private, off-site activities not related to employment. Also, in some instances, employees cannot be terminated for blogging about an employer’s illegal activities. Further, employees are permitted to make statements about union organizing and other concerted activity. Blog policies should therefore be carefully drafted.
Employers may also assign someone to monitor blogging activities of its employees. Some public corporations may have obligations to monitor communications for regulatory or other reasons. Private corporations may do so simply to ensure employees are not engaging in improper conduct or disclosing private company information. It is important to note, though, that the company’s policy also must comply with the National Labor Relations Act (“NLRA”). Blogging has broad protection under the NLRA. While employer-monitoring of website postings for disparagement and other inappropriate conduct by employees may constitute a reasonable basis for monitoring, employers must also be careful not to engage in surveillance that could be construed as violating the NLRA. Employers must also take all necessary steps to inform their employees of the revisions to existing polices and the implementation of any new policies concerning blogging or other monitoring of employee communications.