Beware of the Workplace Blogs

A blog is a Web page or online journal created by the author to express the author's opinions. Blogs can cover an almost unlimited number of topics and subjects – from politics, to entertainment, to hobbies. Unlike e-mail, a blog allows the author to present his/her opinion to anyone accessing the internet. Simply put, blogs are public forums. For these reasons, employees who blog at work, or who blog about work, may create a new set of problems for employers and employees.

Technology is a double-edged sword; while it allows employees to be more efficient and productive, it also creates new ways to reduce efficiency and productivity. Employers have long realized that employee time spent on the internet for non-work related reasons cuts into work time. Likewise, time spent creating, updating, and reading blogs also affects productivity. Since blogs are, in essence, on-line journals, people tend to spend more time on their blogs then they might spend simply "surfing the net." Thus, employers should remind employees that work time is for working, not for blogging. While it may be difficult, time consuming, and expensive to stop employees from using company technology for non-work related reasons, companies should adopt clear policies that prohibit excessive use of company technology for personal reasons – including blogging.

In addition to the effects on productivity, blogs can create a host of legal problems for employers and employees. For example, employees who use their blogs to express opinions, or make statements, which contain inappropriate racial or sexual content, for example, may run afoul of the company's anti-harassment policy. Moreover, if an employer is aware of such blogs, but takes no action to stop the blogger, the employer may become liable for allowing a hostile work environment to exist. Thus, employers should make clear, both in the company's anti-harassment policy and in the company's computer policy, that the user may not use the company computer to engage in conduct which violates the company's anti-harassment policy, or which is otherwise inappropriate or unprofessional.

Furthermore, employees may use their blogs to post confidential or proprietary company information, including trade secret information. Especially troubling is the fact that, once posted on a blog, information becomes accessible to a worldwide audience. As a general matter, employers should consider requiring employees who have access to confidential or proprietary information to sign confidentiality agreements. The confidentiality agreements should be drafted broadly enough so as to prohibit employees from disclosing this information in any public forum – including a blog. Furthermore, employees should be prohibited from using any company trademark or logo on a blog, without express written authorization from the company.

Blogs create other problems as well. Perhaps under the illusion of anonymity, bloggers may forget to exercise discretion when making statements or posting pictures on their blogs. Employees who use blogs to disparage their company or co-workers, could quickly find themselves out of a job. In addition, employees who engage in inappropriate conduct on their blogs, while purportedly representing their company, may find themselves at the receiving end of discipline – or worse yet, discharge. For example, employers have fired employees for posting inappropriate pictures on a blog, and for posting details about the employee's sex life on a blog. Although an employee may believe that an employer has no right to discipline them for activity they engage in on their "private" time, employees should be aware that, if their activities reflect poorly on their employer, their employer may decide to take disciplinary action.

Alternatively, before disciplining a "blogger" for making derogatory or critical statements regarding the company, employers must determine whether the discipline would violate any state or federal law. For example, an employer who disciplines an employee for making statements on a blog regarding the terms and conditions of the employee's employment, or engaging in some other type of protected activity, could violate a number of laws. If in doubt, employers should consult with counsel before taking disciplinary action.

With the increased popularity of blogging, now is a good time for employers to review company policies regarding computer use, harassment, and confidentiality, and to ensure that those policies contain language which is broad enough to cover blogs. However, the best policy is useless if employees lack knowledge of the policy. Employers must make sure that these policies are publicized and distributed to employees. A safe bet for your employees – tell them, before making a statement on a blog, ask yourself – would you be willing to make the statement on the front page of the local newspaper? If the answer is no, then you better not blog.

For further information, please contact Julie M. Conrad.