Blogs are used for any number of purposes. It should come as no surprise, then, that many individual bloggers choose to use their blogs as a place to vent frustrations with their jobs or gripes about their employers or bosses. Whatever the topic, blogging raises several concerns for employers. First, because of the potentially vast audience a blog can reach, employers are rightfully concerned that negative references to their organizations, management or employees could be viewed by literally millions worldwide. Second, through their blog postings, employees may (whether purposefully or inadvertently) disclose confidential or proprietary information and trade secrets. Third, apart from the blog’s content, blogging can detract from productivity. 

The question for employers is, what can/should be done? Initially, employers should adopt policies regarding blogs and include provisions regarding any prohibitions the employer wishes to establish regarding blogging, whether on the employer’s time, through the use of the employer’s computer systems, or on the employee’s own time and on the employee’s home computer. Such a policy should include: 

• Disclaimer of Organizational Responsibility. Require employees to state that any opinions they express about work-related matters are their own and are not attributable to the organization. Additionally, require bloggers to affirmatively take responsibility and liability for any work-related content or materials contained in their blog.
• Copyrighted Material. Inform employees of the potential civil and criminal penalties for posting copyrighted material in a blog without authorization.
• Respectfulness. State that blogs may not be used to attack or insult the company, its products, its executives, supervisors, coworkers, competitors, or competitor’s products.

A Company would also be wise to advise employees that it has the right to monitor all blogs stored or viewed on its systems and will take appropriate disciplinary action against employees who violate the policy or engage in inappropriate behavior through a blog. 

Next, employers should exercise their right to monitor their employees’ blogging activities to determine if employees are spending too much time blogging or are engaging in inappropriate or unlawful behavior through the use of a blog. If their monitoring turns up any inappropriate or criminal blogging behavior, the employer should, and at times, must, take the appropriate responsive action. Discipline should be issued on a consistent and non-discriminatory basis.

In most states, and in most employment contexts, employees are employed on an “at-will” basis, meaning that they may be terminated by their employer for any reason or no reason at all (unless such termination violates federal or state law or the common law). In recent years, some employers have terminated employees for things they have said or done on their blogs even when the blogging was done away from work and using the employee’s own equipment and resources. For example, a flight attendant, billing herself on her blog as the “Queen of the Sky” was fired because she posted on her blog provocative pictures of herself dressed in her flight attendant uniform. Also, in a situation that gained some publicity recently, a U.S. Congressional staffer was terminated after she maintained a blog explicitly detailing her sexual exploits with multiple men, some of whom were senior-level Capitol Hill employees who paid her for sex.

Although private employers have significant latitude to discipline (or even terminate) employees whose blogs have a negative impact on the employer and/or its business, employers should be sure that such discipline/termination comports with existing laws. Employees may owe their employer a fiduciary duty and a duty of loyalty. Employees can be terminated for breaking these duties through blogging activities. However, a number of states have enacted laws to protect employees against adverse employment actions based on lawful off-duty conduct. In addition, many federal and state whistleblower laws and even the National Labor Relations Act and state labor relations laws (if the “gripe” or complaint is collective) may protect employees from discipline based on their blog’s content. Some states (including New York and California) have laws preventing discharge or discrimination based on political activities. As laws vary widely, employers should be sure that any pending disciplinary action be carefully reviewed before taking adverse action against an employee’s blogging; especially if it is not done on work time.

Technology is here to stay. It is a desirable and valued tool in the workplace. Employers simply need to be sure to understand the technologies existing in their workplaces and take the necessary steps to assure that appropriate protections are in place. This requires the collaborative efforts of all facets of management; otherwise, an employer’s technology will be vulnerable to misuse and abuse and its technology policy won’t be worth the paper (or hard drive) it is written on.

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