Employers, employees should understand blog rights

Daily Record and the Kansas City Daily News-Press, Apr 9, 2006 by Barbara L. Jones

Heather Armstrong is a famous name in the blog world. She was fired in 2002 for posting information about her former employer on her blog, dooce.com. Her experience has given rise to a new word, dooced, which in cyber-jargon means to be fired because of one's Web site.

Armstrong's advice to bloggers who write about their employers? Don't be stupid. Expect consequences if you displease your employer with the contents of your blogs.

Good advice, say employers and their lawyers, but blogs do represent a whole new path through the increasingly complicated field of employment law, the employment-at-will doctrine notwithstanding.

As a general rule, assuming that an employer does not unlawfully discriminate, the at-will employee is not necessarily protected against employer discipline because the conduct takes place on the employee's own time and with the employee's own computer, said Minneapolis employment law attorney Richard Ross.

The only Minnesota statute that addresses an employee's nonwork activities relates to smoking cigarettes and drinking alcohol, said Ross. The law, Minn. Stat. sec. 181.938, says that, with certain exceptions, an employer may not refuse to hire, discipline or discharge an employee based on the use of food, tobacco and alcoholic or nonalcoholic beverages.

That's the only statute that affirmatively states that an employee's off-work time and activities are private, said Ross.

Other states, such as New York, Colorado and California, have different policies. For example, in New York, an employer may not discipline an employee for legal activities outside work hours unless the activity creates a material conflict of interest with the employer's business.

However, there are other state and federal statutes that could protect employees in connection with blog activities, said Ross. For example, employees are entitled to the same whistleblower protection that otherwise would be available under Minn. Stat. sec. 181.932 or common law in connection with information posted on a blog. Other statutes, such as Sarbanes-Oxley, also protect employees who disclose information about the company.

Bloggers have started - what else - a blog called The Blogger's Rights Blog, which calls upon employers to establish clear-cut policies and warn employees before blog-related discipline. At last count it was signed by 260 bloggers.

It also lists 48 blogophobic companies and organizations that allegedly have fired, threatened, disciplined, fined or not hired people because of their blogs.

In addition to Armstrong, one of the most talked-about fired bloggers is Ellen Simonetti, better known to Web surfers as the Queen of Sky. After being fired by Delta Airline for posting inappropriate pictures of herself in a Delta uniform on her blog, she has continued to blog and is writing a book while contesting her termination.

Publicity like that may or may not disturb an employer, but it should be only one of the employer's considerations. Other consequences also can be visited upon companies based on employee blogs.

Minneapolis attorney Catherine Ahlin-Halverson warned at The Blogging Rage, a seminar presented at Maslon, Edelman Borman and Brand, that bloggers can create potential liability for employers for harassment or discrimination. Even though a blog doesn't have a physical home in the workplace, it can be closely related to the work environment when it is sponsored or sanctioned by the employer, Ahlin-Halverson told Minnesota Lawyer.

She pointed to the 2000 decision of the New Jersey Supreme Court, Blakey vs. Continental Airlines, which said that an employer with notice had a duty to remedy harassment on an electronic bulletin board. The court likened the board to a workplace environment like a lounge. If the company knew about the harassment and the bulletin board was an integral part of the workplace, the company could be liable, she said.

In that case, the company clearly had knowledge of the communications because the plaintiff forwarded them, said Ahlin- Halverson. The issue of whether knowledge of a blog or bulletin board can be imputed to an employer is still open, she continued. Imputed knowledge is a very real issue, she said.

In Blakey, the court said that employers do not have a duty to monitor private communications of their employees, but Ahlin- Halverson recommends a company that is sponsoring a blog or bulletin board to keep on top of what is happening with it.

Similarly, an employer needs to be aware of its responsibility for defamation of third parties by an employee on a blog, especially if the employer sponsors the site. The libel might not bounce back on the employer if the blog was totally private, but it's an issue to be aware of and certainly something that could get an employee terminated, said Ahlin-Halverson.

An employer-backed blog also creates a whole new cache of discoverable information, Ahlin-Halverson continued. You are creating a new set of records that are subject to discovery and potentially relevant to an employee's state of mind.