Do employee policies need updating in a blogging world?
A blog (short for weblog) is an online personal journal that usually includes reflections, comments and links provided by the writer. Blogs often contain information about the author’s daily activities and may, or may not, include references to his/her employment. These blogs are widely available through the Internet and, for the most part, can be accessed by anyone. In fact, several Internet sites offer services through which individuals can search for certain types of blogs (by subject, author, etc.), making it easy for people to identify blogs of interest. As the number of blogs (and bloggers) has increased, they have become a topic of conversation in the realm of employer-employee relations. Although some employers encourage employee blogging (viewing it as potentially useful PR), many employers either are wary of employee blogs, simply don’t know how to handle them, or haven’t given much thought as to how they may affect the workplace. Given their growing prevalence, however, employers should consider whether policies addressing blogging would be appropriate or useful in their workplace. From an employer’s perspective, this may be a delicate issue. While employees may find employer policies on blogging invasive of their personal lives and an unwanted interference in off-duty conduct (assuming employees are blogging from home and not while at work), employers may be concerned about the content of an employee’s blog — including whether an employee is disparaging the employer (or other employees), sharing confidential or proprietary information, or simply discussing work issues or co-employees. Mostly, these concerns stem from the potential for blogs to create company image issues and/or the potential for putting the employer at risk for legal action due to harassment or other unlawful conduct. Employers may garner negative attention for firing employees for the content of their blogs. Legally speaking, however, private employers may have the right to discipline or terminate an employee for what the employee writes in his/her blog. In New Hampshire, barring an employment contract, a private employer-employee relationship is generally considered “at will.” This means that both the employer and the employee are free to terminate the employment relationship at any time, for any reason. Only certain proscribed reasons for termination as set forth under state or federal law are off limits (for example, race, color, religion, sex, national origin, age, marital status, veteran status, physical or mental disability, sexual orientation or any other status/classification protected by law, whistleblowing, and certain union-related activities). This means that an employer may legally be able to discipline an employee for certain off-duty behavior, like blogging. Of course, there are exceptions. Like any other form of lawful activity, employers cannot discipline an employee for blog content if writing the blog implicates any activity or status protected under the law (union activity, whistleblowing, etc.). Additionally, employers should take care not to discipline an employee for blogging when the content of the blog implicates a protected status and could potentially lead to a discrimination claim (an employee blogging about his/her religious beliefs, etc.). Instead, employers should be able to articulate a legitimate business reason for any blog-related discipline (e.g. the blogger writes about work and other employees). As blogging culture grows, employers may want to consider implementing policies pertaining to employee blogs. Clearly stating “do’s” and “don’ts” regarding blogs will set forth acceptable boundaries and may avoid sticky situations down the road. However, given the perceived employee privacy interests at stake, employers should try to balance those interests against specific business needs and tailor such policies accordingly. For example, an employer may tell employees that it respects their right to use the Internet and blog on their own time, but that it views each employee as a company representative and expects them to act (and blog) accordingly. Another employer may wish to use something as simple as telling employees that they are required to refrain from off-duty behavior that will negatively reflect upon the employer, and that failure to do so may result in discipline or termination. Other employers may want to make sure that existing employee policies are broad enough to cover concerns over blogging. Employers must take care, however, not to create or enforce policies in such a way that will lead to the discipline of an employee for any protected activity or other unlawful reason. Furthermore, as with any policies arguably affecting an employee’s privacy and/or off-duty behavior, employers should be aware that such policies may be perceived as intrusive and affect employee morale and company loyalty. Narrowly tailoring policies to the individual business’ needs and explaining the rationale behind them to employees may make such policies more palatable. Additionally, supervisors or other decision-makers implementing the policy on a day-to-day basis must be properly trained and made aware of potential pitfalls. Finally, any policy must be uniformly and fairly applied, to avoid any claims of unequal or unlawful treatment. Laurel Van Buskirk, who practices labor and employment law at Gallagher Callahan & Gartrell P.A., Concord, is a member of the National Human Resources Association’s New Hampshire affiliate and serves on its programs committee.