Blogging- The Legal Side

Being an attorney, a blogger and podcaster, friends occasionally ask questions about how all these new media tools integrate with business, particularly from a legal front.  I usually dish out my lawyerly opinion and leave it at that.  But I’ve done a bunch of research lately to see whether my opinion squares with that of other practicing attorneys who may be dealing with this sort of issue more frequently in their practice.

Add in the fact that Wired Magazine reported in 2007 that almost 10% of companies had fired bloggers, this is certainly an issue that bloggers, podcasters, video producers and their respective employers need to take seriously. The Employment Law Alliance reports 2006 survey results that showed that few Employers were prepared with policies that covered blogging, despite the fact that as many as 10 million American workers were estimated to have a blog.  Unfortunately, I could not find any more recent results, despite the fact that blogging is more prevalent and I believe more and more employers are aware of it now than just two years ago.

The good news is that the advice I’ve been dishing out to my new media friends has been right on the money and squares with the other opinions out there.  I’ll give you a quick synopsis:

At the Employment Law Alliance, a website that helps employers with legal considerations, there is a great article about a 2007 employment arbitration award based on “indiscriminate blogging.”  A worker in a unionized retirement home blogged about her dissatisfaction at work and about the home’s residents.  The worker was fired for insubordination and for breaching patient confidentiality.  The termination was appealed by the employee, who claimed the posts were supposed to be private, for family only, and immediately apologized when the blog came to the attention of her employers.  The arbitrator upheld the firing, emphasizing the very public nature of the internet blog, and that this was a clear violation of the employer’s confidentiality policies, despite the accidental public nature of the posts.

The UCLA Journal of Law & Technology published an article called Employment Termination for Employee Blogging: Number One Tech Trend for 2005 and Beyond, or a Recipe for Getting Dooced? This is a great law journal article, and worth your time.  For those of you less inclined to weigh through legal language, the upshot is that anything you say or do online can and may be used against you.  Cases are discussed where various bloggers have attempted to restrict access to their websites or message boards through passwords, approvals and the like, but the information contained within have eventually become public knowledge and served as a basis for terminations and legal actions.   There is functionally no zone of privacy (yet) for any communication online, and as a result, you should anticpate that anyone and everyone will know what you twitter, so you should conduct yourself accordingly.  This remains true whether or not an employer actively monitors your email, or gains access through third parties.

Another great article you shouldn’t miss is Social Isolation and American Workers:Employee Blogging and Legal Reform by Rafael Gely and Leonard Bierman published in the University of Cincinatti Public Law Research Paper.  This takes a look at the useful aspects of blogging as a way of employees expressing themselves and extending their social networks, providing a social benefit in an increasingly isolationistic world.  It also suggests some legal reforms that would help make some distinctions between on the job and off the job, and help employers understand the positive aspects of “bitching about work online” so to speak.

The Workplace Prof Blog has a great post about whether or not Section 7 of the National Labor Relations Act might protect bloggers- I’ll excerpt the important part here:

The argument goes something like this: Section 7 of the NLRA provides rights to workers to self-organization, to engage in collective bargaining, and to engage in concerted activities for purposes of collective bargaining and for mutual aid and protection (sorry for the loose paraphrase).  In any event, one of the little known aspects of Section 7 is that it does not only apply to workers in a union or in the process of organizing a union. The language of Section 7 is such that it applies to all employees in the workplace who are engaged in concerted activity for mutual aid and protection. See NLRB v. Washington Aluminum, 370 U.S. 9 (1962).

Which brings me to Rafael’s point: shouldn’t Section 7 protect bloggers who blog about work on their own time and who are critical of their employers on their blogs?  Is this not a form of protected concerted activity under Section 7, which if the employer interferes with (perhaps through firing the employee), should subject that employer to an unfair labor practice charge under Sections 8(a)(1) and 8(a)(3) of the NLRA?  And, of course, one of the possible remedies for employer anti-union discrimination is reinstatement.

And before you conclude too quickly that there is no concerted activity under such circumstances, cases have held that individual employees are acting in a concerted matter when they act on behalf of others in protesting conditions at work.  NLRB v. City Disposal Systems, 465 U.S. 822 (1984).  Moreover, one could argue that to the extent that other employees are participating on the employee’s blog through a back and forth on the comments section this is the very definition of concerted activity.  In any event, I would be very curious to hear what individuals have to say about this theory and whether blogging might actually help to revive not only labor organizing activities, but also industrial democracy in the workplace by giving employees more of a say at work.  This could occur by not only giving employees more access to other co-employees outside of the workplace through blogging, but also by giving union organizers a much needed tool for organizing employees in light of the difficult company access rules for such organizers since Lechmere.

Another great post on the subject is as follows:

Another Blogging in the Workplace Article

Laptop_guy_3Here is a somewhat biased view about blogging policies in the workplace by two management-side attorneys (Littler Mendelson), but nevertheless this article from Law.com provides a nice overview of many of the issues that confront employers when they are thinking about protecting their interests in light of employees blogging at and away from work.   There are also some interesting ideas, such as establishing a “blogging oversight committee,” which merit further consideration.

Take home point for employers from this article: have a restrictive as possible blogging policy which does not permit employees to undermine corporate interests on-duty or off.

Personally, I think the authors give short-shrift to the privacy interests of employees away from work, especially in states in which off-duty conduct statutes are on the books or in situations in which employees are unionized, protected by civil service laws, or otherwise have just cause protection.   I think a more subtle balancing of employer and employee interests is called for when employee blogging starts impacting employer interests.

Also, I think the “Big Brotherism” (authors’ terminology) engendered by such aggressive blogging policies will inevitably cause negative effects on the morale and productivity of the workplace.



Lastly, From The Labor Law Prof blog, written by a law school professor who deals specifically with Labor and Employment law:

Employer Blogging Policies  (from 2006)

Blog_2

Makovsky and Co. released a survey of employer blogging policies (see here for the press release and here for the survey itself).  Among the highlights:

  • Only minorities of top executives surveyed are convinced to “a great extent” that corporate blogging is growing in credibility either as a communications medium (5%), brand-building technique (3%), or a sales or lead generation tool (less than 1%). In contrast, most executives are somewhat or not at all convinced of blogs’ growing credibility in these areas, (62%, 74%, and 70% respectively).  (Note- this is 2006 data, and while I believe that this has changed substantially, I could not locate any more recent data or surveys to compare with this one.)
  • Nearly half of senior executives polled do not have corporate policies pertaining to blogging, although 77% believe that their organizations should address such policies.
  • Even though 12% of senior executives say their companies have taken legal or other action in response to a blog, only 20% report having a formal process in place for monitoring blogs written about the company.
  • A minority (15%) say that someone in their organization is currently writing a blog related to the company or its activities.
  • Only one in five (21%) report reading business-related blogs once a week or more frequently.
  • Only 30% of senior executives report that they have a thorough understanding of the term “Internet blog.”
  • Forty percent believe that their companies should have corporate policies to address the writing of blogs unrelated to the company or its activities. This compares with the 77% who believe their companies should have such policies concerning the authoring of blogs sanctioned by the company.
  • Further, 8% report organizing a team of dedicated people to write sanctioned blogs about the company and its activities.
  • Three percent said their company changed its product, service, or policies because of publicity generated by a blog written about it.

Hopefully this has been helpful in giving you an overview of blogging in the workplace- I’m also working on a post about getting blogger’s errors and omissions insurance, and I’ll give you the ins and outs of that as well, if I can ever get the agent to return my call.

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