Web logs - blogs - are the rage in terms of individual expression. It is a wonderful way to tell the world - literally - how you feel.
Of course, an employer can prevent an employee from blogging during working time or from using the employer's technology to blog. But what if the employee blogs off duty using his or her own technology?
Does an employer have the right to take action against ("dooce") an employee for off duty blogging which it finds offensive or otherwise problematic? Stated otherwise, what's work got to do with it?
This article provides a general overview of some of the more salient legal and practical considerations which the blogging phenomenon has created for employers.
We begin our analysis with the at-will principle. As we all know, an employer can discharge an at-will employee at any time, for any reason, no reason, a good reason or a bad reason, just not an illegal reason.
Because of the at-will principle, we start with the presumption that terminating an at-will employee for off duty blogging is lawful. The question is whether and when there are exceptions.
Bloggers often talk about their First Amendment right to freedom of speech. However, the First Amendment to the federal Constitution applies only to the government and does not restrict private employers. Accordingly, private employers can proscribe or punish blogging without violating their employees' First Amendment rights.
In contrast, public employers must consider the First Amendment before taking any adverse action for off duty blogging. Generally speaking, a public employer will need to establish either that the particular speech is not constitutionally protected or that the public employer's interest outweighs the employee's speech rights.
While the federal constitution does not apply to private employers, some state constitutions do. For example, the California constitution has been interpreted as applying to private and public employers alike. In these states, employers need to consider the state's constitutional equivalent to the First Amendment. The states may afford greater protection to speech rights than otherwise would be available under the federal constitution were it to apply.
Off Duty Statutes
In most states, private sector employees will not be protected under either the federal or their state constitution. However, that does not mean they are without protection.
A number of states, such as New York and Colorado, have enacted broad off duty protection statutes which may protect off duty blogging. For example, the New York statute prohibits an employer from taking adverse action against an employee for off-duty: (i) po1itical activities; (2) union activities; (3) legal use of consumable products; and (4) recreational activities. The definition of recreational activities is defined relatively broadly to include "sports, games, hobbies, exercise, reading and viewing of television, movies and similar materials."
For some, blogging is undeniably a hobby. At a minimum, there would be an issue for litigation.
Political Expression Statutes
A number of other states (Missouri and Nevada, for example) which do not have broad off duty statutes have statutes which protect political expression. For example, Nevada law provides that it is unlawful for an employer to make any rule or regulation prohibiting or preventing an employee from engaging in politics.
Some blogging is undeniably political. In this regard, it is likely that the courts will construe political broadly so that employers need to be careful not to define it too narrowly.
Employers also need to consider the anti-retaliation provisions of the discrimination and other federal and state laws regulating the employment relationship. For example, Title VII prohibits an employer from retaliating against an employee because he or she has "opposed" any unlawful practice.
There are no reported cases on the potential application of Title VII to blogging. However, there are a few cases which suggest complaints to the media may be protected by Title VII. See Bazile v. City of New York, 215 F.Supp 354 (S.D. N.Y. 2002). The rationale could be applied equally to statements made directly to the world at large as opposed to indirectly through the media.
Even if an employee does not allege employment discrimination or harassment, his or her blogging about his or her employment may be protected under the National Labor Relations Act, if he is blogging about terms and conditions of employment affecting not only him or her but also his or her co-workers. This is true even if the employee is non-union. See, for example, Allstate Insurance Co., 332 N.L.R.B. 759 (2000) (NLRB held unlawful employer's disciplinary warning of an employee for talking with Fortune magazine about concerns regarding an Allstate program that affected her and similarly situated employees).
Common law public policy
Even if the employee's off duty blogging is not constitutionally or statutorily protected, it may be protected by a state's common law. That is, in most states, there is a public policy exception to the at-will principle. While the scope of the public policy exception varies from state to state, in some states, this exception could be applied to off duty speech. See, for example, Emerick v. Kuhn, 737 A.2d 456 (Conn. App. Ct. 1998).
An employer's ability to take action in response to off duty blogging also may be limited by an individual employment agreement or a collective bargaining agreement which requires "cause" or "just cause" for discharge. In other words, if the employee is not at-will, the presumption of legality does not apply and we begin with the reverse presumption that there is not "cause" or "just cause." The employer may be able to overcome this presumption by establishing a clear nexus between the employee's off duty conduct and the employer's reputation and/or mission.
Even if an employer has, or probably has, the legal right to take action against an employee for off duty blogging, that does not mean that the employer should. There are other business considerations which an employer should weigh which may argue in favor of employer self-restraint.
First, as always, there are employee relations considerations. Even if an employee does not engage in off duty blogging, the employee may fear: What's next? Will the employer regulate what bumper sticker I can post on my car?
Employees who fear their employer in this way may leave. Those without the option of leaving may try to restrict management's right to flex its legal muscles through collective action - in other words, unionization.
There also is the question of your customers. If an iconoclastic employee is terminated for his or her iconoclastic message, iconoclastic customers may follow suit.
Then, there is the practical concern that terminating the employee may lead to more damage than if you had retained him/her in your control. Bloggers have a lot of passion. Do you really want to give them free time too?
Accordingly, when it comes to responding to off duty blogging, there often is not a clear answer as to what the employer should do. Rather, the decision-making process usually involves a balancing of complex and sometimes competing legal and business considerations which may turn on the content of the blog, the employee's position with the organization, and, of course, the state in which they blog.
To ensure greater certainty, some management lawyers have joined in the choir of bloggers calling upon employers to develop policies so that bloggers have notice as to what they can and cannot do. However, the same panoply of issues which employers need to consider in deciding how to respond to problematic blogging also apply to whether an employer should have a blogging policy.
An employer who develops a policy with regard to off duty blogging may suffer employee relations consequences even from those employees who do not really understand what blogging is.
Further, there also are complicated legal issues in terms of drafting the policy. The employer would need to consider carving out 'protected' blogging (allegations of unlawful discrimination, for example) without inadvertently inviting it.
Moreover, if the employer is going to address blogging, why not other kinds of off duty-expression. Shouldn't the employer have a policy on what employees can say if they call talk radio off duty?
Not every issue requires a policy. To the contrary, sometimes employers are better off dealing with distinct problems as they arise as opposed to trying to regulate a broad area of human interaction.
As an alternative to a full-fledged policy, consider the following general statement which has potentially broad application: "Employees should be careful to refrain from speech, conduct or behavior, on or off the job, which could adversely impact the employer's reputation and/or mission."
Of course, a general statement does not provide the kind of pristine notice that courts, commissions and arbitrators look for in assessing due process. But developing a more detailed policy which provides more pristine notice is not without legal and business risks so it is a question of risk balancing as opposed to risk avoiding.
If an employer elects to develop a more detailed policy to maximize due process, the employer may wish to consider some or all of the following:
First, the employer may want to make clear that an employee should not state the name of his or her employer in his or her blog. However, in some cases, the public may draw the connection even if the employee does not.
Consequently, employers may wish to encourage employees with public positions to state affirmatively that the blog is the employee's personal opinion and does not reflect the opinion of his or her employer. Of course, the employee should be told not to state the name of his or her employer or the disclaimer produces the risk it is designed to avoid.
Second, the employer may wish to make clear that employees cannot blog confidential and/or proprietary information. Cross-reference the employer policy statement on this issue.
Third, the employer may wish to make clear that the employee cannot say anything negative or disparaging about the employer's customers, clients etc. This is easy to articulate but much harder to apply.
For example, assume that an employer is a government contractor. Does that mean an employee whose spouse is in Iraq cannot blog negatively about the war?
Fourth, the employer may want to include a general statement along the lines noted above: employees should be careful to avoid speech, etc., on or off the job, which could adversely impact the company's reputation and/or mission. This is admittedly vague (and overbroad) so the key comes down to common sense and discretion in the enforcement.
Finally, keep in mind that your blogging policy is likely to end up being blogged. You may want to keep that in mind in terms of not only what you say but also how you say it.
Jonathan A. Segal is a Partner with WolfBlock in its Employment Services Group. His practice focuses on preventive counseling, training and policy development; adversarial proceedings, such as EEO and other administrative charges; traditional labor matters; and, strategic business planning issues. N.B.: This Article should not be construed as legal advice or as pertaining to specific factual situations.