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Venting Online: How To Deal With Employee Blogs

Venting Online: How To Deal With Employee Blogs
By Gregory Ballew

Blogs (electronic internet diaries or postings) are booming. Employees are now using blogs to broadcast information and opinions worldwide. Inevitably, some of those employees will post negative, harassing, hostile, false, or confidential information and opinions about their employers and co-employees.

In determining how to deal with such postings, employers will first need to consider when they can legally monitor computer sites; when they will actually monitor; how they will notify employees of their intent to monitor; and whether any objectionable postings are legally protected or instead form a basis for discipline or discharge. Navigating these treacherous waters is a daunting task, but if you fail to protect your company’s reputation in appropriate cases, you will likely open the door to even more harm.

Getting Your Policies Right

Employers may legally monitor their own computer systems and also review information posted on the internet that is open to the public or information provided to them. Because it’s impossible to monitor all internet postings, the logical approach is to investigate only where you have received a report that an employee has posted material that crosses the line of professional or permissible behavior (negative, harassing or hostile statements about co-employees, or confidential or false information about the employer).

Although the National Labor Relations Act (NLRA) provides protection to employees (whether or not they belong to unions) who engage in "concerted activity" relating to their wages, hours and working conditions, the NLRA likely would not protect reckless or malicious lies, threatening or harassing statements, or disclosure of confidential information.

To clarify the limits placed on employees, many employers are implementing blogging policies to notify employees of impermissible behavior. These policies can, for example, include the following provisions:

Employees should not expect any privacy while utilizing company-owned computer systems. The employer reserves the right to monitor these systems at any time.
Employees are not permitted to write blog postings while at work, regardless of subject matter. Such an action may be viewed as an abuse of company time and inappropriate use of company computers.
Employees are strictly prohibited from posting trade secrets or other confidential information about company business on blogging sites. Such information includes upcoming new products or projects that have not been publicly announced and information about discounts offered to certain customers.
Employees may not identify themselves as company agents or suggest that they are presenting the company’s views in any blogging activity that is not specifically required of them as part of their jobs.
Employees are prohibited from using blog postings to harass or attack any employee, contractor, customer or vendor based on sex, sexual orientation, race, national origin, religion, age, disability or other protected category.
Taking Legal Action

Laws against defamation and libel apply to blogging, and you should remind employees that they may be subject to legal action for spreading disparaging and untrue information about the company or for defaming another person.

Defamation is generally defined as "a communication that exposes a person to hatred, contempt or ridicule, or which causes the person to be held in diminished respect or esteem, or otherwise injures the person’s reputation in the community." Thus, falsely suggesting in a blog posting that an individual is a thief or a criminal, or is dishonest or sexually promiscuous, can result in legal action for defamation.

Laws against invasion of privacy also apply to blogging. Employees should be warned that posting private information about another person’s medical, financial or sexual affairs may expose them to a lawsuit.

Finally, let employees know that they will be subject to disciplinary action, up to and including termination of employment, for violation of the company’s blogging policy. The company may also sue current and former employees for misappropriation of trade secrets or tortious interference with business relationships, and individuals may sue employees for harassment, defamation or invasion of privacy. Warn employees that blogging under an alias provides no protection against legal action, because administrators of blogging websites may be forced by court order to reveal the blogger’s identity.

The Bottom Line

Although in most states employers have broad latitude to discipline or terminate employees because for inappropriate blogging activities, common-law and statutory privacy protections are increasing. Some states already have statutes that prohibit employers from terminating or taking certain other actions against employees engaged in lawful activities. This increasing trend bears watching so that employers can continue to do everything possible to protect their companies from detrimental blogging.

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