Blogging and employers' rights, as if there weren't enough to fret about, as appeared in Employee Benefit Advisor
6/7/2007
Charles H. Wilson
Like it or not, the phenomenon of blogging has become a means of communication that has changed the way people express themselves. To date there are over 71 million active blogs. Probably not since the mid 1400's has a communication medium had such an impact on the public, allowing everyone with an internet connection and an opinion to speak to an unlimited audience without censorship, oversight, expense, expertise or the benefit of an editor with manners.
While EBA's research shows that many benefit advisers are still cool to the idea of blogs as a business-building exercise, the number of blogs and recent high profile examples of blogging gone bad demonstrates that business leaders need to pay attention to this burgeoning and evolving communication channel.
Because employees often blog about their employers and sometimes the information shared in a blog can be harmful to the employer in question or co-workers, the questions for executives are numerous: What can employers do when an employee berates or harasses a co-worker in an after-hours blog? What happens when people use their newfound creative freedom to blog about their working conditions? And, what happens when blogging turns septic, revealing client confidences, or employer trade secrets?
The rights of the blogger at work or off-the-job remain relatively unsettled inside the court system, but there are a number of ways to minimize legal liability for employee indiscretions in blogs, and to educate employees about acceptable blogging that will lessen the risk of termination or legal trouble.
Employer rights
Private sector employers must be aware of what they can and cannot do when they discover an employee's blog. There are several important steps HR can take to ensure blogging does not become a source of frustration or legal issues:
Spell out the parameters and expectations regarding use of company computers. An employer has the right to regulate employee use of employer-owned computers. It is acceptable to forbid blogging at work, or any other social networking activity that is not work-related, such as games or conversation with outside friends. An HR handbook distributed to employees must clearly outline these expectations.
Subject to a handful of state laws relating to employee off-the-job conduct, private sector employers are usually able to prohibit employees from making insulting claims about products or services. Additionally, an employer has the right to prohibit employees from sharing proprietary information or intellectual property. Employers should also prohibit any harassing language or photos in blogs that could be deemed discriminatory or sexually explicit. Such photos could draw an employer into litigation, because they showcase an atmosphere of intolerance and sexual indiscretion. Again, such restrictions should be made known to employees in a well-written HR handbook or policy. The courthouse steps are no place to wish that the "house rules" had been made clearer.
Employee rights
On the flip side, employers must be careful about curtailing employees from blogging about certain information, whether after-hours or not, protected by applicable federal and state laws. As previously stated, employees often vent about their working conditions and employers must be cautious about disciplining employees for such blogging. Generally, blogging about an employer's wages or conditions of employment may be protected under the National Labor Relations Act.
In addition, blogs discussing perceived discrimination in the workplace also can be viewed as protected activity under Title VII of the Civil Rights Act of 1964, which prohibits employers from retaliating against workers for protesting, in good faith, perceived discriminatory practices.
Proactive steps to take
Like it or not, blogging is one of the most popular Internet-based forms of communication and expression. In order to effectively deal with blogging, employers should welcome it but take certain proactive steps:
*Update all worker policies and make sure to inform employees of what is acceptable behavior on work computers and what is not.
*Make sure to establish an open conduit for discussion regarding wages, discrimination and sexual harassment. Forcing your employees to air your company's dirty laundry on the Internet is a bad idea especially when an equally user-friendly channel is available that won't have the whole world watching.
*Have a lawyer review your policies to make sure they are neither antiquated nor vague. Your policies themselves may create loopholes and blind alleys.
*Stay abreast of any technological developments and understand that some employees will take advantage of any popular methods of killing time.
Blogging is just another form of "water cooler" talk with unlimited listeners. By paying attention to the situation and being proactive about worker rights, a company can avoid problems and ensure that work and play remain separate.
Charles H. Wilson is an attorney in the Houston office of Epstein Becker Green Wickliff & Hall, P.C. He devotes his entire practice to representing companies in labor and employment litigation. He can be reached directly at 713.750.3117 or cwilson@ebglaw.com
(c) 2007 Employee Benefit Adviser and SourceMedia, Inc. All Rights Reserved.
Reprinted with permission from Employee Benefit Advisor