Can employee blogging put employers at risk?

While many employers have written employment policies covering employee use of company computers, e-mail and the Internet, many do not have policies covering employee blogging.

Given the emergence and increasing popularity of blogging, employers should consider written policies on blogging before problems arise.

A blog (shorthand for “Web log”) is “an online personal journal with reflections, comments and often hyperlinks provided by the writer,” says Merriam-Webster’s Collegiate Dictionary. Blogs have become a prevalent method of self-expression today and essentially function as online personal diaries. They can cover any topic and contain written comments as well as images or pictures. They invite and solicit reader feedback.

The number of blogs is growing every year with tens of millions of blogs already existing and new blogs being created every day. According to Technorati, a Web site that tracks blogs, there are over 175,000 new blogs every day, and bloggers are constantly updating their blogs with over 1.6 million posts per day, or over 18 updates a second. Accessible online, blogs extend to a global audience.

Considering the powerful and extensive reach of blogs, employers are increasingly concerned about what employees may be blogging on their personal Web sites. Employee blogging has employers concerned about protecting the company’s business interests, reputation and risk of liability for an employee’s conduct on a blog.

One area of concern is the release or disclosure of confidential or proprietary information in blogs. Another is disparaging remarks in a blog about the employer, supervisor, another employee or a customer. Employers also are right to fear liability for harassment or retaliation or other unlawful content.

As employers faced the emergence of the Internet and e-mail, employers are now facing blogging. There have been a number of cases in recent years involving the termination of employees for the content of their blogs. The issues created by these electronic communications within and without the workplace, however, have hardly begun to be settled by the court.

Blogs as a means of communication raises new questions about how far employers should go in managing an employee’s on-line activities and whether employment policies on blogging are appropriate. Under the at-will doctrine in New Hampshire, an employer can generally discharge an at-will employee at any time for any reason, just not an illegal reason. Thus, with some limitations, private employers may have the right to discipline or terminate an employee for what the employee writes in a blog.

Employers considering taking any such action, however, should keep in mind that certain blog content may fall within a protected category. For example, there are protections for employees under federal and state whistleblower and anti-discrimination laws, and the National Labor Relations Act prohibits employers in all workplaces, whether unionized or not, from disciplining employees for engaging in “concerted activity.” Additionally, individual employment agreements with employees may limit an employer’s actions.

Keeping these important legal limitations in mind, employers should consider taking steps to protect against the risks of employee blogging by considering a written employment policy on blogging that provides a clear explanation of what is prohibited. As with all employment policies, a policy that has been reviewed by legal counsel may provide employers with options for taking any appropriate disciplinary action. Below are several tips on what a blogging policy may include:

• Reiterate that company equipment, including computer equipment and software, Internet access and e-mail and voice-mail systems, is provided for business purposes and is the property of the employer.

• Include blogging in any general restriction against using company equipment to communicate on the Internet. (Some companies may use blogging for marketing or as part of an employee’s job duties. In those cases, an employer should prohibit blogging on company equipment for personal uses.)

• Reiterate that employees must not disclose in blogs any information that is confidential or proprietary to the company or to any third party that has disclosed information to the company, and that employees must abide by all non-disclosure and/or confidentiality policies.

• Make clear that the employer reserves the right to take disciplinary action up to and including termination against employees for making any threatening, offensive or disruptive messages or images that offensively addresses someone’s age, sex, race, color, religious beliefs, national origin, veteran status, disability, or other category protected by applicable law.

• Make clear that the employer reserves the right to take disciplinary action up to and including termination against employees for making any defamatory, libelous or slanderous comments when discussing the employer, supervisors, employees, customers, vendors, and/or competitors using company equipment.

• Remind employees that certain employer information is trademarked or copyrighted and not to be reproduced without permission of the employer.

• Require employees to make clear in their blogs that the views expressed in their blogs are theirs alone and not those of the employer (it may be helpful to draft disclaimer language the employer is comfortable with).

• Provide a resource for employees who may not know whether certain conduct is prohibited under the policy.

• Make clear that the employer reserves the right to take disciplinary action up to and including termination against an employee for any violation of the policy or any other company policies.

Jennifer Parent, a director in the Litigation Department of McLane, Graf, Raulerson & Middleton, can be reached at 628-1360 or Jennifer.parent@mclane.com.