MySpace, Facebook and More: Personal Blogs and Employers’ Rights
Many employers have policies that limit employees’ use of the employer’s communication systems, like e-mail and internet access, to business purposes only, and direct that employees must not disclose the employer’s confidential or proprietary information. These policies are designed to protect the employer’s business interests and to prevent employees from disclosing sensitive business information, using their employer’s communication systems for personal reasons, and engaging in harassing or defamatory conduct by e-mail.
Few of these policies address, or even contemplate, however, the recent explosion of blogs, on-line chat rooms, and websites such as MySpace and Facebook on which employees may post profiles, photos and almost any other information that they wish to share. While some of these sites may require passwords or limit access to “members” of the site, blogs are generally accessible by anyone with an internet connection. Through these sites, employees may share their tales of woe from the dating scene, success – or failure – on the latest diet, or express frustration with their co-workers or employer.
Employers are understandably concerned about their employees’ posts since the posts have the potential to reach a global audience at virtually no cost to the employee. Through their posts, employees may, either intentionally or inadvertently, broadcast trade secrets, sensitive business data, or insider information. In a similar vein, but with different content, employee posts may harass or defame colleagues, or they may just share information that casts the employer in a negative or embarrassing light. Employers have more to be concerned about since once information is posted on the internet, it may be downloaded or copied onto other sites without the original poster’s knowledge or direction, and therefore may remain in circulation even after the original posting has been removed from the internet.
To address these and other concerns, many employers have implemented policies to address employees’ personal blogs, chat room postings, and internet profiles. A well-drafted policy that reflects the employer’s culture and attitude towards employees’ personal use of the internet can be effective to inform employees about what conduct is – and is not – allowed, in order to protect the employer’s business interests.
In developing such a policy, private-sector employers should keep in mind that, while blogging is not a constitutionally protected right of free speech, certain blogging activity may be covered by whistleblower laws, anti-discrimination laws, and the National Labor Relations Act (“NLRA”). For example, the NLRA gives all employees (unionized and non-unionized) the right to engage in “concerted activity” by discussing the terms and conditions of their employment with co-workers and outsiders. Given this protection, if an employee blogs about the terms and conditions of her employment, and restricts access to her blog to her current co-workers, her comments, even if highly critical of her employer, would likely be protected by the NLRA, and any adverse employment action based on the blog’s content could be unlawful.
In addition to these federal law issues, several states, including California, Colorado and New York, have enacted legislation that limits an employer’s ability to discipline employees for their off-duty conduct. While these statutes typically permit discipline when the employee’s off-duty conduct conflicts with the interests of the employer, employers should always consider the laws of each relevant state when developing policies and disciplining employees for off-duty conduct.
With these restrictions in mind, we recommend that all employers consider implementing a workplace blogging policy that reflects the employer’s culture and meets the employer’s objectives. At a minimum, such a policy would serve to address any claim that the employee did not know the blog violated the employer’s policies as well as undercut any claim by the employee that he or she mistakenly believed that blogs are entitled to unlimited freedom of speech protection. A well-drafted policy would include:
- An introductory statement that the employer recognizes that some employees may wish to create and maintain personal web logs or “blogs,” and that while the employer respects employees’ rights to personal expression and views an employee’s blog as the employee’s personal project, an employee must also understand that his or her personal blog can impact the employer;
- A requirement that if the employee discusses his or her employment or identifies himself or herself as a employee in any way, the employee must include a disclaimer that the views expressed on the blog do not necessarily reflect the views of the employer;
- A prohibition on the use or disclosure of confidential, proprietary, sensitive and/or trade secret information of the employer, its clients and third-parties;
- An explicit statement that harassment of other employees will not be tolerated. The policy may further explain that employees should be respectful of others when posting to a blog, and should assume that people, including co-workers, are reading the blog;
- The policy should cross-reference any related employer policies such as the proper use of electronic resources, anti-harassment and discrimination, and addressing confidential and/or insider information;
- The policy should explain that the employer’s policies regarding use of corporate logos and other branding and identity are applicable, and only individuals officially designated have the authority to speak on the company’s behalf;
- The policy may explain the potential civil and criminal penalties of posting copyrighted material without authorization; and
- Perhaps most importantly, the policy should state that the employer reserves the right to take disciplinary action against an employee if his or her blog violates any of the employer’s policies.
A blogging policy, or even a comprehensive communication systems policy, will not eliminate all the risks presented by employees’ use of the internet. However, a well-drafted policy that reflects the employer’s culture and that is legally compliant will ensure that employers have the tools to take corrective action when necessary.
We urge employers to review their existing policies and consider whether any revisions or additional policies are warranted. Please feel free to contact us for assistance.