Media Coverage

Employees Blog the Hands that Feed Them in the "World’s Largest Public Elevator"

The CEO survey report, The State of Our Business: A Perspective from Indiana Executives, reveals that employers place high value and importance on employee loyalty. It also shows that most employers have adopted employment policies that deal with Internet use. However, very few companies have tied the idea of loyalty to the problems inherent in employee use of the Internet. Very few employers have adopted policies in regard to the expectations that they have of employees who choose to participate in blogs. While blogging may be a new phenomenon for some employers, all companies should take note of this new opportunity for employees to either inadvertently or deliberately harm their employers.

Do you have elevators in your building? Most of your employees know that they should not, under any circumstances, talk about your company’s private business or affairs while they are in the elevators. No one knows exactly who may be listening.

But consider the Internet for one moment: isn’t it really the World’s Largest Pubic Elevator? The Internet is a space, albeit not a physical space, that is available and accessible 24 hours a day to anyone with a computer, anywhere in the world. That includes your customers, prospective customers, and others with whom you have relationships. Business decision-making is increasingly being influenced by information that is found on the Internet. All employers have an interest in ensuring that their employees do not compromise confidential business information or otherwise post information that may be harmful to the company.

What is blogging?
Blogging, in the employment context, involves an employee going onto the Internet to create or participate in an online journal where he or she expresses an opinion. This opinion then becomes part of a blog which is no more than an on-line diary. Most companies monitor Internet use by employees, but they rarely monitor the Internet blogs on any regular basis. Locating statements on the Internet about your company is as easy as going to www.technorati.com or another blog search web site. I highly recommend www.chacha.com: do a search for "blog web sites" and take a few minutes to see what others are saying about your company.

What is the problem with employees blogging about their employers?
The opinions that an employee places on a blog are very often opinions that he or she would never share in public, let alone in private. They may include negative statements about the Company, its leaders, its products, or other employees. They may reveal the Company’s confidential business plans or trade secrets. In addition, your employees often fail to realize or consider that their personal opinions and statements can be electronically copied, edited, sent anywhere around the world on the Internet, and attributed back to the employee.  An employee may decide to post offensive information about one of his or her co-workers. If this information is sexual or racial in nature, an employer that finds out about it likely has a duty to investigate this just as it would any other improper comment made at work.

In any case, there is no question but that many employees feel that they have a so-called "constitutional" or "First Amendment" right to post statements on the Internet that they would be prohibited from saying in other contexts. However, the only employees who possess constitutional rights in the workplace are those who are employed by public employers, i.e. the government (and employees in a handful of states may actually have state constitutional rights or similar legal protections). In fact, employers have wide latitude in setting policies that legitimately protect their business interests.

What measures should you take now?
There are a number of recommendations that I have for all employers:

1. Adopt a Blog Policy. However, as with any new employment policy, I recommend that you have your company’s employment law counsel review it first.
2. Your employment policies should make it clear that when employees are at work, they are expected to be working, not blogging.  I do not believe most employers can spend the time policing employee use of the Internet, but excessive or inappropriate use of the Internet should be strictly prohibited.
3. Anti-harassment policies should make it clear that any inappropriate statements about other employees, whether made at work, outside the workplace, or even on-line can result in discipline or termination.
4. Employees should be trained about corporate confidentiality issues. They should be advised that writing on a blog is no different than handing out a flier on the street. Worse, they have no control over who sees the blog, copies it, edits a copied version, or sends it out around the world.
5. Employees should expect that if they disparage their employer, there will be disciplinary consequences, up to and including possible immediate termination of employment.  However, before disciplining any employee for this offense, I advise that you consult with your employment law counsel. Its important for an employer to consider whether the employee is engaged in protected activity under the National Labor Relations Act before it takes action so that a time-consuming and expensive legal action can be avoided down the road.
6. Employees should also expect that if they place offensive comments in a blog, whether or not about a co-worker or their employer, they can be disciplined or terminated.  An employer is not required to continue to employ an individual who expresses opinions that the employer finds inappropriate or that reflect poorly on the employer. As I noted above, public employers will have to consider First Amendment issues, unlike private employers in most states.
7. Employees should be required to sign confidentiality agreements that are drafted broadly enough so as to prohibit employees from disclosing confidential company information in any context, including in a blog.  These agreements should also prohibit employees from using their employer's trademark or logo without prior written permission as these are often misappropriated in blogs.
8. If an employee has compromised confidential information or committed defamation, consider a lawsuit. This tends to be an attention-grabber for all of your employees. Even if the posting is "anonymous," there may be ways to determine who actually placed the information there.
9. You have read this far in my article and I have a recommendation that will strike some of you as funny and others as extreme. There are countless website names that can be easily and inexpensively purchased, but one you should consider purchasing is www.[name of your company]sucks. The genius who creates a website to disparage a company is often an angry current or former employee. Their imagination regarding what name to give their new website inevitably leads them to that word. Why make it easy for them?
10. Now, you have read to the end of this article and your reward is a copy of a   sample blog policy to consider for your company. All you need to do is email me at Michael.Blickman@icemiller.com and I will make sure you get it.  It is of course just a sample that you can use as a starting point for discussion with your company's counsel of points that you should consider and it will also need to be tailored to your own company’s culture. In exchange, I would be interested in any "war stories" or other examples of how you have dealt with these issues. I promise that my book will change the names to protect the innocent!

Michael Blickman is a partner and chairman of the Labor & Employment section of Ice Miller.  Michael can be reached at:  317-236-2298 or Michael.blickman@icemiller.com.