Blog Post: Blogs: My Space or your Space.

A disgruntled employee, let's call her Jane, is furious about a perceived slight in HR management. She believes that she was disciplined too harshly for an attendance issue. Jane logs on to her personal blog, and discusses her issue.  She goes on and on about her frustration and is, at times downright offensive. Jane may be encouraged by the common notion that her expressions are protected by the oft-quoted and rarely-understood First Amendment. Assuming Jane works for a private, and not public, employer, the First Amendment offers her little protection from termination for her expressive conduct. But, disciplining an employee for what she says on her own, personal blog is a difficult task, at best, given the Colorado statute on legal off-duty conduct. But what if Jane's comments rise to the level of defamation? What if her complaint raises Title VII flags or might constitute protected activity under some statute or common law doctrine? These issues would give any well-intentioned HR practitioner and his or her counsel an instant headache. What can we do, in advance, to avoid this quandary?

First, enraged employers would be wise to consider the real impact of an employee's blogging activity. Is that employee really harming the company, or are they just blowing off steam? Is their steam harmless, or does it have an impact on the company environment, culture or morale? Employers have terminated employees for taking suggestive photographs of themselves in company logo wear, or on site, and posting them on the Internet (in violation of "no sexual activity on site" and other policies). Employees have terminated employees for posting confidential company information and trade secrets on their blogs. These instances give rise to independent, legitimate reasons to terminate an employee. Others, general complaining about work or coworkers, may constitute legal off-duty conduct and may subject an employer to liability if they cite blogging as the reason an employee was terminated.

Second, counsel should be consulted to confirm that the employee's comments do not constitute protected activity under some statute. Today's sour grapes might become tomorrow's protected whistle-blowing, and a termination based upon that expression, retaliation and actionable.

Policy Tip: Crafting a Blogging Policy. One thing an employer can do to protect themselves proactively is to craft a blogging policy. Consider the following in crafting any policy:

• What is blogging? Include a definition.
• What types of blogging should draw discipline?
• Consider protection of your intellectual property. What kinds of information should an employee not discuss in blogs? Confidential information? Trade secrets? Trademarked information? Copyrighted material?
• What impact could negative blogs have on your company's image, or your employee's morale? Why do you really want to restrict blogging?  Is it really necessary?
• Are any types of blogs acceptable? Blogs can cause a "buzz" about a company and might actually help a company's profile grow.
• What type of culture do you want to create in your company. Is a high level of control (i.e. a policy that limits what an employee can or can't say in a blog) going to impact that?
• Are you concerned about on-the-clock blogging, or off-duty blogging? What about using company equipment to blog?
• Could employee blogs subject a company to liability for defamation and privacy torts? Could employee blogging become an admission or opinion of the company? Consider using a policy to disclaim responsibility for any blogging, regardless of where or when it takes place.
• Cross reference other relevant policies, such as harassment, discrimination, duty of loyalty, securities laws, confidentiality and trade secret restrictions.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C.  In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters.  She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes.  You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice.  If legal advice is needed, you should consult an attorney.  This article may not be reprinted or reproduced in any manner without prior written permission of the author.