Blogging and Employers, what you need to know from an HR Perspective straight from a top Labor and Employment Attorney! By Joseph Parker, Partner & Labor and Employment Attorney with Shustak Frost & Partners

Blogging and Employers
A blog, short for web log, is an online diary that allows individuals to express themselves through observations, opinions and commentary about an endless array of topics including their work lives. Essentially, bloggers can post information about anything and everything and often include videos, photos, or links to other sites on their blog. Blogs are searchable on the internet, meaning that once an entry is posted on the web anyone can discover it through a simple keyword search on Google. The fact that anyone can start and author a blog at little to no cost has lead to a staggering proliferation of blogging over the last several years. Today there are approximately 133 million blogs, with an estimated 175,000 started every day.

Employers’ Potential Concerns
This new virtual water cooler, of sorts, poses a number of significant concerns for employers as workers increasingly begin to use their blogs to reflect upon their job duties, supervisors, and fellow employees.

Chief among these concerns is the possible threat to a company’s image and reputation. Employee-bloggers often vent about workplace frustrations and may also disparage the company, management or its products in their posts. Given the size of the online audience and the relative ease to which potential clients or customers can access blogs, employers face the very real risk that negative commentary could damage business relationships and company goodwill. Bloggers may also post off-color content that implicates the company through a logo or trademark. Clients or business partners may lower their opinion of a company if they associate it with inappropriate content or feel that its employees are engaging in unprofessional conduct.

Additionally, employees who use blogs as a platform to berate or threaten fellow employees or company personnel may give rise to an affirmative obligation on the part of the employer to take action to stop such harassment and comply with their legal duty to ensure a harassment-free workplace.

Another worry that employers have related to blogging is the possibility that an employee will reveal confidential company information on their blog. Divulging such information, whether inadvertent or deliberate, could lead to the destruction of valuable trade secret status or to the loss of competitive advantages when such information is accessed by corporate rivals.
Publicly traded companies have the additional concern that material non-public information will be disclosed in violation of SEC insider trading rules thereby subjecting the company to liability under federal securities regulations.

Employers’ Responses
An employer’s ability to discipline or terminate an employee for their involvement in blogging-related activities depends upon the circumstances surrounding the conduct in question. While it is probably permissible for a private employer to discipline an employee who breaches a confidentiality agreement, violates a company policy, harasses a fellow employee or carries out their blogging during business hours, there are several legal and practical limits to doing so. For example some states, including California, have laws that prohibit employers from taking adverse action against employees based on lawful off-duty conduct.
Employees may also be shielded by federal labor laws that allow both union and non-union employees to engage in what is deemed as protected concerted activity. Cyber chat rooms that are restricted to only company employees may fall under the umbrella of statutorily protected activity and employers may be subject to an unfair labor practice charge under the National Labor Relations Act for infringing upon such an activity. Similarly, state or federal laws designed to protect whistleblowers may negate any retaliation on the part of the employer. Other legal ramifications include possible discrimination or free speech claims brought forth by employees who feel that they were unfairly terminated or disciplined.

Employers should carefully consider how they react to a blogging issue as the fallout from the company’s response could include loss of employee morale, negative media coverage and the costs of defending employee lawsuits.
The law is still trying to catch up to the technological realities that employers face today. No statute or case conclusively outlines an employer’s rights and responsibilities in this regard. Therefore, before taking any disciplinary action against employee-bloggers, employers should always seek legal advice.

Adopting a Policy to Address Blogging by Employees
In many cases an employee may not be aware of the potential harm that could result to themselves or their company as a result of publishing certain statements or photos on the web. A company-wide policy that clearly delineates the parameters for off-duty blogging puts employees on notice as to what conduct is actionable thereby providing employers more latitude to discipline or terminate employees who violate the policy.
A blogging policy should include the following guidelines:
• Reiterate an employee’s duty to comply with confidentiality provisions in employment agreements or in accordance with company policies regarding prohibitions against disclosing proprietary information or trade secrets. When possible, specify what information is off-limits.
• Instruct employees to include a disclaimer in their blog that states that opinions, comments or statements expressed in the blog are their own and do not represent those of the company nor does the company assume any responsibility for employment-related content.
• Provide clear rules as to when, if at all, the employee may reproduce company trademarks within a blog
• Advise employees to refrain from discussing customers, clients or suppliers online without first obtaining employer approval.
• Prohibit employees from using blogs to harass or make offensive statements about company personnel.
• Clearly state the consequences of failing to comply with the policy

The blogging policy should be disseminated in a manner that will provide confirmation that the employees have read and understood the policy. Employers should also take care to ensure that the policy is effectively communicated to the workforce and to that end employers should provide training sessions or include the content of the policy in orientation seminars. When applicable, it may be advisable to cross -reference related company policies on electronic resources use, prohibition of discrimination and harassment in the workplace and obligations to maintain confidential information
Prior to regulating employee blogging or drafting a policy to address blogging-related activities, employers should always consult with legal counsel.

Social Networking Sites
Perhaps even more prevalent than blogging is the astounding popularity of social networking sites such as Facebook, MySpace and Twitter. Online networking presents many of the same challenges and concerns for employers as blogging does, including how employees are portraying the company online and the possibility of confidential company information being leaked. Additionally, social networking often causes a drain on work productivity as employees continue to spend an alarming portion of their workday surfing the internet.

When deciding how to address the issue, an employers’ response is twofold. First, the company must determine whether to even permit employees to use social network sites during work hours. And if so, employers have to then evaluate how to limit and control the content that is disseminated and the amount of time spent online.
While banning employees from visiting social media sites altogether may seem like the least problematic method of dealing with the concern, it may in fact be unrealistic and disadvantageous to do so. Employers who decide to prohibit usage have to then develop a means to monitor and enforce such a proscription. Turning off internet access, installing software to block certain sites, and disciplining offenders all require a substantial amount of time and cost.
Perhaps a more preferable option is to put certain constraints on usage through the adoption of a social media policy that implements clear rules regarding the extent of allowable usage and whether it is permissible for employees to affiliate themselves with the company. Social media policies should be developed along the same guidelines as the blogging policies and incorporated into existing confidentiality and technology policies whenever possible.

Joseph M. Parker
Attorney
Shustak Frost & Partners
401 West “A” Street, Suite 2330
San Diego, CA 92101
T: 619.615.5293
F: 619.615.5290
jparker@shufirm.com
www.shufirm.com