As an employer, can you restrict employees from blogging about workplace concerns – and if you learn of negative or damaging posts, can you act on them?
The answer may depend on whether you’re a private or public employer.
In a 2006 survey co-sponsored by the American Management Association, it was revealed that nearly 2% of employers have fired workers for offensive blog content, including posts on employees’ personal, home-based blogs.
“Employee bloggers, who can be fired, or “dooced” in blog parlance, for blogging at work (and at home on their own computers) face increasing risk of termination by employers struggling to keep a lid on legal claims, regulatory fines, and security breaches. With the blogosphere growing at the rate of one new blog per second, industry experts expect the ranks of dooced employee bloggers to swell.”
And for those employees who feel this type of action is a violation of their rights to free speech under the First Amendment, Nancy Flynn, author of Blog Rules and executive director of The ePolicy Institute, shares:
“Employee bloggers mistakenly believe the First Amendment gives them the right to say whatever they want on their personal blogs. Wrong! The First Amendment only restricts government control of speech; it does not protect jobs. Bloggers who work for private employers in employment-at-will states can be fired for just about any reason—including blogging at home on their own time or at the office during work hours.” (American Management Association)
Ms. Flynn points out an important distinction here and it concerns the actions private employers can take. But what about public employers? Do they have the same right to terminate an employee for improper blogging?
In the paper, Blogging While (Publicly) Employed: Some First Amendment Implications , Paul M. Secunda compares the First Amendment free speech implications for public and private employers – and what the future holds for employees who choose to blog about their workplaces. He explains:
“While private-sector employees do not have First Amendment free speech protection for their blogging activities relating to the workplace, public employees may enjoy some measure of protection depending on the nature of their blogging activity. The essential difference between these types of employment stems from the presence of state action in the public employment context.”
It should be noted that, regardless of whether an employee works for a private or public business, certain speech about unionization or working conditions is protected. For example, it could be a violation of the law for an employer to take action against an employee blogging about an experience with sexual discrimination at work. It could also be a violation to retaliate against an employee for complaining about workplace safety issues. Obviously, an employee would enjoy greater protection under these circumstances if he or she issued a formal complaint with the employer before sharing information on a personal blog.
(Check your state laws, too, since many states prohibit employers from disciplining or firing employees for activities they pursue offsite, on their own time. These “off-duty conduct” statutes often contain language protecting employees who “use legal products” (such as cigarettes) off-duty, as well as protection against any employee conduct that doesn’t break the law. This coverage could apply to employees who keep a personal blog. )
One important step you can take to discourage negative or damaging blogging by your employees is to include a written policy in your employee handbook. With Gradience Handbook Manager Software, you can easily create a comprehensive, legally compliant handbook that addresses, among other things, the issue of blogging. One of the recommended policies, “Use of Company Communication Systems”, covers employee blogging/social networking sites and provides guidelines for employees to follow, such as “(Company)
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