HR Hero Line
March 10, 2006

Excerpted from Delaware Employment Law Letter, written by attorneys at the law firm Young, Conaway, Stargatt & Taylor

by William W. Bowser

Just when you thought you'd covered everything possible in your technology policy, along come blogs. Most people have at least heard of blogs, an Internet application containing periodic postings, but their effect on the workplace and employment law is relatively uncharted territory and many companies are trying to figure out how to respond.

A gathering storm?

A few cases of employees being fired in relation to comments they've posted on their blogs have already popped up in what may be a deluge of cases involving the role of blogs in our workplace and society. It's a deluge caused by the sheer number of blogs combined with an unprepared legal climate. One study estimates that 60 million blogs exist worldwide and 100,000 new blogs are created every day.

Uncharted reef?

While the number of blogs is exploding, statistics show that most employers have failed to take steps to shield themselves from potential liability by developing a clear blogging policy. A recent national study indicates that only 15 percent of employers have specific policies regarding blogging. Nevertheless, blogs by your present and former employees pose workplace risks, including the following.

Breach of confidentiality. A blogger may reveal confidential information about your company, including trade secrets. For example, a blogger complaining about a project assignment may, without thinking about the implications, reveal details of a new product that’s under development. Or an accounting department blogger complaining about having to work an all-nighter on a big stock deal may inadvertently be revealing insider information.

Defamation. The freewheeling culture of blogging may encourage people to say things online that could defame their employer, management, coworkers, customers, or competitors.

Harassing or otherwise offensive content. Imagine a situation in which an employee with a disability is being accommodated with a modified work schedule in compliance with the Americans with Disabilities Act. The employer has properly responded to inquiries about the arrangement by saying only that the company is handling the individual’s situation in accordance with federal law. A blogger complains that that “slacker” is being allowed to come and go as he pleases while the rest of the department suffers for it and speculates about the person’s possible medical condition.

Or imagine a blogger spreading completely speculative rumors that a recently promoted colleague got the job by performing sexual favors for the boss. Conversation that shouldn’t go unaddressed in the workplace can be extremely difficult to curb when it occurs anonymously in cyberspace.

Inappropriate content. Such content can range from postings that are disrespectful to your company to those that are completely unrelated to employment but may still reflect on you.

Safe harbor?

It’s important that you cover blogging in your Internet or electronic communications policy. The policy should prohibit disparaging the company or its employees, customers, or competitors either by name or implication. As with your other policies, it should be communicated to employees when they’re hired and periodically thereafter. It also should caution them that they must avoid creating the impression that the views expressed on a blog are anything more than personal opinions.

Following are some points you may want to cover in your blogging policy:

1. Persons who broadcast information regarding the company or its employees, customers, or competitors must make clear that views expressed in the blog are theirs alone and don’t represent the views of their employer.
2. In blogging, as in any other communication, employees must respect the company’s confidentiality and proprietary information. Employees should be reminded of the confidentiality provision in the employee handbook and, if they’re required to sign confidentiality agreements, of their commitments under those agreements.
3. Employees who have questions about the blogging guidelines should direct their questions to a designated company official who will serve as the authority on the policy and on helping them understand how it applies to their situations.
4. As with all communications, persons communicating through blogs are expected to treat the company and it employees, customers, and competitors with respect.
5. The company may ask that certain topics not be disclosed for confidentiality or legal compliance reasons, and employees are expected to honor those requests.
6. Employees are responsible for ensuring that their blogging activity doesn’t interfere with their work commitments, and they should be familiar with the company’s other policies regarding Internet use, which also apply to blogs.

Smooth sailing

The benefit of a blogging policy is that it puts your employees on notice of the standards of conduct that apply to blog postings. If you then learn that an employee has violated the policy, you can address the situation through the normal disciplinary process.

Before imposing discipline, however, remember that state laws differ and certain types of communications may be protected under state and federal law. You might consider consulting counsel before taking any disciplinary action.

Copyright 2006 M. Lee Smith Publishers LLC. This article is an excerpt from DELAWARE EMPLOYMENT LAW LETTER. Delaware Employment Law Letter does not attempt to offer solutions to individual problems but rather to provide information about current developments in Delaware employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.

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