By ANNE-MARIE VERCRUYSSE WELCH, Esq. and JIM SCHIFF
Spend any time scanning the world’s 112 million blogs and you’ll find plenty of employees discussing their work. Sometimes that spells legal trouble for employers. By implementing an effective company blogging policy, you may avoid many of the pitfalls.
Most company blogging policies require employees to assume personal responsibility for all blog content, abide by existing corporate policies, keep company information confidential—and be nice. Some employers prohibit employees from discussing work at all.
However, all company blogging policies should contain some crucial provisions.
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Blogging at work
“Cyberslacking” employees spend hours each week surfing the Internet, shopping, e-mailing, playing games—and blogging. Not only are these employees stealing time from their employers, but also they may be exposing their employers to defamation, harassment, discrimination and disparagement claims. Their activities increase the risk of exposing confidential information and trade secrets.
Without adequate blogging policies, you have little control over unauthorized online conduct—and even less recourse.
You are well within your rights as an employer to regulate how employees use their work computers. You may prohibit blogging during work hours. If you elect to monitor how employees use their computers—as many employers do—notify employees you will be tracking their blogging, Internet and e-mail traffic. That way, employees will have no reasonable expectation of privacy on their work computers.
Blogging on personal time
Even when employees are not at work, they still may represent the company. Your policy can address how employees treat business-related matters even when blogging on their own time. Instruct employees not to use the company name to endorse or promote any product, commercial enterprise, opinion, cause or political candidate. Further, require employees to identify themselves when discussing the company or company-related matters.
For example, IBM requests bloggers who identify themselves as company employees to ensure that their online presence is consistent with how they wish to present themselves to colleagues and clients. IBM’s “Social Computing Guidelines” ask employees to write in the first person and make it clear that they are speaking for themselves and not the company. Further, IBM asks its employees to include a disclaimer on their blogs, stating “the postings on this site are my own and don’t necessarily reflect IBM’s positions, strategies or opinions.”
Note: A disclaimer by itself doesn’t exempt supervisors from special responsibility. By virtue of their positions, they must consider whether their postings could be misconstrued as company positions. Of course, managers should never use private blogs to communicate company policies to employees.
Off-limits topics
Remind employees not to comment on confidential company information: the company’s future business performance, business plans or prospects. Trade secrets lose protection status when disclosed without confidentiality restrictions, which could jeopardize the company’s ability to obtain patent protection on an invention.
Effective blogging policies place responsibility for postings on the employee. Individuals can be held personally liable for any statements deemed to be defamatory, obscene, proprietary or libelous (whether they pertain to their employer, individuals or another company). Employees also may be liable if they post confidential or copyrighted information belonging to third parties, such as music, videos or text. Employees should obtain permission before using company trademarks or reproducing company material on their sites.
The blogging policy should also state that a violation of any company policy may result in disciplinary action, up to and including termination. This includes violation of the company’s general electronic communications and confidentiality policies, as well as the company’s harassment and equal employment opportunity policies.
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Anne-Marie Vercruysse Welch is an associate with the Labor and Employment Practice Group of Clark Hill’s Detroit office. For more information regarding blogging policies or for other employment law related inquiries, contact her at (313) 965-8571.
Jim Schiff is a third-year law student at Loyola University in Chicago who served as a summer associate at Clark Hill PLC.
What you can't prohibit
Consider two free-speech issues when crafting your blogging policy:
- Whistle-blowing. Federal and state whistle-blower laws may protect some blogging activity. The federal Sarbanes-Oxley Act protects internal whistle-blowers of publicly traded companies who provide information regarding mail, wire, bank or securities fraud to a supervisory authority or a person who has the authority to investigate such conduct. Michigan’s Whistleblower Protection Act protects employees who report suspected law violations to an enforcement agency.
- First Amendment issues. Public employers must take extra care to inform employees of their blogging policies, and communicate to them that speech made as part of their employment may not be safeguarded under the First Amendment. The U.S. Supreme Court’s recent decision in Garcetti v. Ceballos somewhat narrows First Amendment protection of blog content. If an employee is speaking as a citizen on a matter of public concern, then their speech may be protected—unless the government can justify treating that employee differently than members of the general public.
