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Employee Rights in the Blogosphere 06-15-2005
- By Ann Kiernan, Esq.

According to a 2005 study by the Pew Internet and American Life Project, more than eight million people have created online journals, or blogs (from "web log"), and more than a quarter of all American Internet users-32 million people-read blogs in 2004.

As blogging has grown, so have conflicts with employers. The firing or discipline of blogging employees of Microsoft, Delta Airlines, Google, and other companies have been described and discussed in newspapers, magazines, radio, and, of course, on the Web.

What legal issues must employers face in the blogosphere?

A blogger's on-line reference to the employer's marketing strategy, impending merger, confidential financial data, or product development could disclose trade secrets to millions of readers around the world, and be a violation of the employer's confidentiality policy, and a violation of the employee's duty of loyalty. In a 2005 California case, Apple Computer has subpoenaed three bloggers to find out who gave them the confidential Apple information they posted online, and the court has rejected the bloggers' attempts to invoke the journalist's privilege to protect confidential sources and has refused to quash the subpoena.

Employee blogs can create very bad publicity. One example that has received a lot of notoriety is that of Ellen Simonetti, who claims that she was fired in October 2004 by Delta Airlines for posting fully-clothed but suggestive pictures of herself in her Delta uniform on her personal blog. Simonetti has filed a sex discrimination charge with the federal Equal Employment Opportunity Commission, claiming that while Delta has allowed male employees to have blogs, she was fired. If the men posed seductively in their uniforms and were not fired, she may have a valid claim.

Supervisor blogs may also constitute illegal harassment if they express discriminatory statements about employees. Although the employer may not be liable for such harassment, the supervisor could be held personally liable.

Other issues for employers to consider: Are employees blogging or reading blogs on company time? Tell them to get back to work!

Could the employee's blog be reasonably construed as whistle-blowing about some employer conduct that's claimed to be illegal or contrary to public interest? If so, investigate the employee's allegations.

Does the employee's blog urge other workers to take some action about an internal issue? This might be "concerted activity" protected by the National Labor Relations Act, even at non-union companies.

What you should do: Of course, most employers don't have the time or resources-or the inclination, usually-to monitor all employee chatter, whether in the break room, on the phone, in e-mail, blogs or blogs' newer offshoots, podcasts, those do-it-yourself radio shows posted online. And a specific blogging policy might not be right for your firm. But companies should review and update their electronic communications, Internet usage and confidentiality policies to make sure employer expectations are communicated clearly, and should make sure all managers receive training and education about employee rights and legal responsibilities of management.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.
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