Power of Attorney - June 2006

WorkPlace vs. MySpace.Com

The Blogosphere Battle Between Employer and Employee

by Shaun P. Haley

Blogs are proliferating at an astonishing rate: over 15 million of the online Internet diaries now exist, with an estimated 900,000 new blog postings added to the Web each day. The word "blog" is actually a contraction of the words "web" and "log." While most blogs have nothing to do with work, an increasing number of legal cases demonstrate that blogs are having a serious impact on the workplace. Many employers are slow to recognize the risks associated with blogs and to provide adequate protection for their businesses against the potential consequences.

The most obvious employee-blogging issue is "workplace blogging." Workers who receive Internet access from their employers often find it tempting and easy to access blogs and chat rooms from work. A study conducted by the University of Maryland noted employees spend an average of four hours each week "cyber-slacking." By some accounts, non-job-related Internet activity accounts for a loss of $178 billion annually.

Even more damaging are situations in which disgruntled employees utilize blogs to sabotage their employers. In worst-case scenarios, such activity includes outright disclosure of confidential or proprietary information. Most cases, however, involve simple embarrassment for the employer. For example, Michael Hanscom was discharged after posting a picture of Apple computers being delivered to his employer, Microsoft. The posting caused negative publicity for the software manufacturer.

Additionally, once an employee-blogger identifies his or her company, the employee may be seen as a representative of the company, regardless of whether that is the employee’s goal. This is particularly troublesome if an employee makes a statement that could be construed as harassment or discrimination. For instance, the self-titled "Phantom Professor" of Southern Methodist University used thinly veiled pseudonyms to demean and belittle students and colleagues. At Boston University, an adjunct professor blogged lasciviously about his female students. In either case, The subjects of the Internet musings could have had potential claims of harassment against the bloggers, as well as their employers.

The primary weapon an employer possesses in the Battle of the Blogosphere is the implementation of a reasonable and well-drafted Internet policy that specifically references blogging. In particular, the policy needs to identify for employees what behavior the employer will find actionable. Such a policy should include the following:

A statement that the company has provided Internet connections for work purposes, and that an employee has no expectation of privacy when using the company’s system. The employer should also reserve the right to monitor Internet usage, if it deems necessary.

A prohibition against disclosing confidential or proprietary information, regardless of whether such disclosure occurs during work time or personal time.

A statement that any blog posting, whether made at work or from home, should not include material that affects the workplace, either by harassing other employees, by damaging the company’s reputation, or by otherwise affecting employee morale. It also may be helpful to warn the potential "blogzilla" that laws against defamation and libel apply to blogging, and that he or she may be subject to legal action for spreading disparaging and untrue information about the company or other employees. Regardless of content, an established policy must be consistently enforced, and any reports of potentially harassing blog postings should be investigated immediately.

As with any new law or technological advance, it will take time to iron out the wrinkles caused by the intersection of employer interests, employee privacy and Internet access. Meanwhile, collaborating with counsel to develop workable Internet and blogging policies may go a long way to prevent future workplace disputes and costly lawsuits.

Shaun P. Haley
Shaun P. Haley is an associate with the Las Vegas office of Fisher & Phillips, LLP, where he exclusively represents management clients in labor and employment law matters.