Employee Blogging Creates Some Difficult Issues for Employers

Oct 2008

(October, 2008, Livingston, NJ) Many employers have yet to recognize the potential harm to their companies that may result from employees who blog.
 
For example, in March, Cisco Systems, the computer giant, had to revise its policy on employee blogging.  These changes followed the disclosure by a Cisco employee that he had authored an anonymous blog commenting on various policy and legal matters with which the company has been involved and on which he worked.  In addition, Cisco employees who knew he was the author circulated links to the blog without revealing that a Cisco employee authored the blog.
 
With the expansion of the Internet, blogging has increased exponentially. Over 41 million blogs currently exist on the Internet and the "blogosphere" is doubling in size every 5 ½ months, meaning it is now over 60 times larger than it was just 3 years ago. On average, approximately 75 million blogs are created daily, about 1 new blog every second of every day, and there are about 1.2 million new blogs created each day, or about 50,000 per hour.
 
As blogging has grown in popularity, employer concern about blogging has grown, and some employees have already been fired for their blogs. Employees can disclose trade secrets, confidential financial information, or other internal documents; put the employer in an embarrassing light by abusing its trademarks, or projecting a negative or otherwise unprofessional attitude; disrupt the workplace with public comments about other employees; or offend the employer’s customers by making racist, sexist, or otherwise inappropriate remarks.
 
Despite these concerns, various laws limit an employer’s control over what employees write, especially outside of working hours. One such law is the National Labor Relations Act (NLRA), which protects certain activities by non-supervisory private sector employees.
 
Specifically, section 7 of the NLRA protects "the right . . . to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Employers may not "interfere with, restrain, or coerce employees in the exercise of" their section 7 rights.
 
According to John Sarno, president of the Employers Association of New Jersey (EANJ), these provisions likely extend to employee blogs under certain circumstances, if the NLRA’s criteria are met.
 
According to Sarno, the multitude of posts and comments contained on blogs will present some analytical challenge. On nearly any blog where employees frankly discuss their jobs, some posts, examined individually, probably "disparage" the employer or its products without explicitly connecting the criticism to a labor dispute. Other gripes probably fall outside the scope of "mutual aid or protection" because they do not reveal the "specific objective" of changing a particular employment practice.
 
“In cases where legitimate collective rights are not being asserted, blog posts are not protected speech,” says Sarno. “I think the real threat comes from a disgruntled employee who seeks to harm the company’s reputation or from a conspiracy among many employees who want to defame the company,” he says.
 
The rapid rise in anonymous anti-employer Internet blogs has made it difficult for employers to protect themselves against defamation, disparagement in the business community and disclosure of confidential and proprietary information by employees. The first step in redressing the problems caused by anonymous bloggers is to identify who is responsible.
 
The most widely used mechanism for identifying a rogue blogger involves the filing of a "Doe" lawsuit, in which no named defendant is identified and then serving a subpoena on the Internet Service Provider ("ISP") hosting the blog - seeking documents designed to learn the blogger's identity. Once the blogger's identity is disclosed, the company will be able to pursue legal action.
 
However, Sarno notes, “a subpoena designed to unearth a blogger's identity can be challenged. The most common challenges to an ‘identity subpoena’ are based upon purported privacy and free speech rights.
 
An employee's blogging activity may also be protected under various whistleblower statutes. New Jersey has one of the strongest whistleblower protection laws in the country, Sarno says.

Sarno suggests employers should add a policy to their employee handbooks or manuals that prohibits personal employee blogging during working hours and that specifically addresses private blogs and chat rooms during off hours.

“The benefit of adopting policies addressing private blogs is that it puts employees on notice of the standards of conduct that apply to blog postings, “ Sarno says. 

As such, the policies should be provided to employees at the time of hiring and intermittently re-transmitted throughout their employment. If employers learn that an employee has violated the policies, the violation can be dealt with through normal disciplinary procedures or termination.