Blogging Employees, Beware

Like any new trend in the workplace, laws and policies may take a while to catch up to the technological reality, and blogging is no exception. Blogs (short for “weblogs”) are a form of online communication that can be spontaneous and instantaneous, which can be a real disadvantage sometimes. Employees who choose to talk about what’s happening at work, whether it’s positive, negative, or neutral, run the risk that their employers will discipline or even fire them, based on what they say in a blog that was written “on their own time.” When that happens, they may find themselves without much legal protection for their blogging activities.

For those of you who aren’t familiar with blogs, as Palmolive’s Madge would say, “you’re soaking in it.” “Today’s Workplace” is my blog, written for my employer, Workplace Fairness (rather than about my employer: a crucial distinction in many cases). One definition of a blog is “a personal journal published on the Web. Blogs frequently include philosophical reflections, opinions on the Internet and social issues, and provide a “log” of the author’s favorite web links. Blogs are usually presented in journal style with a new entry each day.” (I’m still working on the every day part.) One poll says that 7 percent of Americans write their own blog. So if a company has 15 employees, there’s a good chance that one worker has a personal blog.

Bloggers have been at the forefront of technological and communication trends. Blogging employees find themselves at the intersection of several workplace trends:

Employment at will: Most employees still don’t realize that their employers can fire them for any reason or no reason, as long as it’s not an illegal reason: it’s called “employment at will,” and applies to most private employees (unless you’re a member of a union or have an employment contract). Just a handful of states might offer some protection for blogging activities: California, New York, and Washington, DC have laws that protect against retaliation for your political activities (which may include your blog if it contains political commentary), while Colorado and North Dakota prohibit retaliation for your lawful activity outside of work (which may include most blogging). Also, if you’re blowing the whistle on your employer’s illegal activities, you might have some legal protections, but your blog may not be the best place to do that (consult with a lawyer if you aren’t sure). Employees ask “what about the First Amendment, my free speech rights?” Those don’t apply to those who work for private employers, just governmental employees. In most cases, employees don’t have laws protecting them from being fired for what’s in their blog.

Erosion of Privacy: Most employees have very few privacy protections related to their work. Employers are cracking down on personal usage of the web, e-mail, and any other work-related uses, and increasingly monitoring their employees. According to a recent survey by the American Management Association, three out of four employers monitor workers’ Website connections, while over half retain and review employees’ e-mail messages. (See AMA/E-Policy Survey.) The laws that prevent employers from listening in on phone conversations generally don’t apply to the Internet. (See NWI Electronic Monitoring Review.)

Blurring of the Line Between Work and Personal Life: Employers are moving closer to 24/7 access to their employees than everyone ever dreamed. Between cell phones, pagers, PDAs, and home computers, and your boss calling you on your vacation, it’s hard to know what is “your own time” any more. Employees are spending more hours at work, and working harder and more productively while they’re there. There’s never been so much need to blow off steam, and so little time to do it. Employers who expect employees to do any work from home or be available during hours not at the workplace, in turn need to allow employees time to use the Internet for personal use, which includes blogging.

Employers are developing a love/hate relationships with blogs. Companies are using their employees’ blogs to expand their reach, generate buzz and encourage consumer loyalty – and bypass traditional media. (See Desert Sun article.) But employers have some legitimate concerns about blogging as well:

  • Trade secrets: Employers don’t want employees giving away proprietary information that will aid their competitors.
  • Productivity: Employers don’t want employees typing away on their blogs when they should be working, or talking in their blogs about how little work they do on company time.
  • Company image: Employers don’t want employees making the company look bad in cyberspace by tarnishing its image, whether it’s the employee doing something the employer doesn’t want associated with the company in any way, or a disgruntled employee who is publicly disloyal to the employer.

How can employees who blog protect their jobs? How can employers balance their legitimate interests with allowing employees some latitude to blog. Like everything else, employers need to create policies that address blogging, whether it involves new policies or adapting existing policies on external communications. Employees who know what their employers’ expectations are are much less likely to run afoul of them through blogging.

Employees should follow the guideline: “don’t do anything stupid.” Don’t say anything you don’t want your boss to hear, and if you do, make sure that your boss doesn’t hear it. If you’re saying something you don’t want your employer to hear, experts recommend:

  • saying it anonymously;
  • using a service to scramble your IP address;
  • limiting identifying personal details;
  • password protecting it if you just want to share with friends;
  • if you’re expressing your personal views about something implicating the employer, adding a disclaimer making it clear you’re not speaking on the company’s behalf

(See EFF’s Legal Guide for Bloggers.) A blog may feel like a personal diary, but your diary isn’t listed in search engines and accessible to anyone in the world 24/7. Some of the posts about work may sound like watercooler rants, but if you do that, you know you have to be discreet. Blogs are not discreet, unless you make them so. Given the lack of legal protections, employees need to be careful, unless they want to be blogging full-time while they’re unemployed.

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Madeline Messa

Madeline Messa se yon 3L nan Syracuse University College of Law. Li gradye nan Eta Penn ak yon diplòm nan jounalis. Avèk rechèch legal li ak ekri pou San Patipri Travay, li fè efò yo ekipe moun ki gen enfòmasyon yo bezwen yo dwe pwòp defansè yo pi byen.