To manage risks of employee blogging, communicate a clear policy

October 31, 2008

Blogging in its current form has been around since at least the late 1990s, including millions of blogs written by millions of people in their spare time. Even personal blogs often include information about the writers’ work. Employers, however, very rarely have the opportunity to monitor or approve anything that is posted on the blogs of their employees.

With no skills in Web publishing and no cost to the blogger, typing equals worldwide publication. This extreme ease of use, wide reach, and immediacy means that employers can find themselves involved in some precarious legal situations, sometimes with no warning and no involvement of their own. Blog postings and reactions to them recently have landed companies in court to defend claims of defamation, sexual discrimination, and wrongful termination.

In one example, computer networking firm Cisco Systems and one of its lawyers were sued in state and federal court in Texas as a result of an anonymous blog posting that accused two opposing attorneys of criminal conduct during litigation.

Elsewhere, a group of Quizno’s franchisees published a fellow franchisee’s suicide note on their blog, and later had their franchises terminated. The suicide note attributed the deceased’s suicide to problems with his business. They sued, claiming they were terminated as franchisees because of the blog posting. That case was filed in Delaware and settled late last year.

Even Google, widely regarded as one of the best places to work in the technology sector, has reportedly fired an employee for blogging. Mark Jen was fired after blogging about information Google considered confidential. His posts included a detailed breakdown of health benefits provided by Google and by Microsoft. He did not sue, but instead admitted that he had “goofed and put some stuff on my blog that was not supposed to be there.”

The more famous case of the blogging Delta Airlines flight attendant is also in court now, but the litigation is on hold because of the airline’s ongoing bankruptcy proceedings. That case received widespread media coverage at the time of the firing, which happened after flight attendant Ellen Simonetti posted some pictures of herself in uniform on her Queen of Sky blog. The company terminated her, and she sued the airline for sexual discrimination.

While there is, of course, no law particular to blogs, their widespread use has increased the odds of employer involvement in different kinds of claims and litigation. As seen in the recent litigation, confidential information can very quickly reach a wide audience, and defamatory (or at least inflammatory) statements are spread to the general public with no more thought than water cooler conversation. Employers have also found themselves faced with the difficult personnel decision of having to fire an employee who may otherwise be performing well, due to some ill-advised blog posts that have caused problems for the company.

In spite of the risks, many companies understand the benefits of employee blogging, and some actively encourage employees to create an online window in their world. The advantages of employee blogs for their employers can include putting a human face on their business and providing potential employees an inside look at life inside their walls. The line that employers must walk is protecting the company and its employees from thorny online commentary while not being so heavy-handed that they discourage employees who feel that they have something to say to the world.

Have a clear policy

The solution may lie in a clearly stated Internet usage and blogging policy, and frequent reminders to employees about the do’s and don’t’s of their online statements about their work, their colleagues, and their employers. While no set of rules is followed universally, companies whose employees operate blogs or might start one (which anybody can do) should have a policy in place and repeatedly communicate the policy to its employees. Like the Google employee who admitted that he “goofed” after posting employer details on his blog, many online gaffes are probably the result of too little forethought rather than malicious intent.

An employee publications policy should include several basic aspects. It should require that the employee state that her statements and opinions are hers alone, and not that of the company or her supervisors. The policy should also require that employees respect the privacy of others in what they choose to publish, and abide by the company’s confidentiality policy with respect to company information. This will prohibit the posting of strategic considerations, financial information, any trade secrets, and other proprietary information of value to the employer.

The search engine firm Yahoo! is one company that has given its employees some guidelines. Apart from the general suggestions above, the Yahoo! guidelines also suggest that employees coordinate with the company’s public relations department if any reporters contact them about information on their blogs.

An effective online publishing policy should also identify one person or several people within the company that employees can contact with any questions. Also, unless an employee is asked by his supervisor to maintain a blog for the company, he should insure that blogging is done on his own time, and not on the company’s time.

Employers cannot control their employees’ online conduct away from the office, and for the most part, they should not try. However, the legal risks presented by employee blogging can be managed by developing and emphasizing to employees a blogging policy to govern online statements that might affect the company.

Chris Gatewood practices law with Hirschler Flesicher in Richmond.

Written by Chris Gatewood  |  Filed Under Office Practices 

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