To Blog or Not to Blog - That Is the Franchiser Question

Should employers be concerned about blogs? While blogs can be effective communication and advertising vehicles for employers, they can also damage businesses and hurt employees. Currently, little case law exists as to a company's liability pertaining to its' employees' blogs and their content. But, as blogging becomes more popular, more employment problems and case law will develop.

Oh, no, I've been dooced! WHAT?!

"Doocing" means to fire someone based upon information in their "blog," the term given to a worldwide publication of an online diary. Blogs can be rambling day-to-day notes or they can be a forum for the author to give opinions, advice and comment on issues, such as their workplace, co-workers and managerial supervisors. Through blogs, the whole world can view musings of a disgruntled employee or comments about a sexually harassing boss. It is estimated that some 75,000 new blogs are created daily and that there are 1.2 million postings made each day on one blog or another. It is also estimated that there are more than eight million adults in the United States who maintain these Internet diaries. Thus, just like cell phones and emails, blogging could soon become a part of our business culture in the United States.

Recent, high profile doocings exemplify the need for companies to become familiar with the blog world. A computer programmer at Google negatively commented about Google on his individual blog. After several other Google employees found his negative comments and brought those comments to management's attention, he was terminated. He nonetheless became an overnight sensation and was recruited by many other computer companies. He now works for a Google competitor, helping to coordinate that company's blogging efforts and implementing and drafting policies for blogging behavior. Google, for its part, suffered adverse negative publicity based on this high profile doocing. Another high profile doocing has led to a discrimination and retaliation suit. Delta learned about a flight attendant's private blog and discovered allegedly "inappropriate" material on her blog. After Delta "dooced" her, she sued, alleging disparate treatment from male flight attendants who posted similar pictures and commentary on their blogs without adverse action. She also claims that Delta did not have a blogging policy; therefore, Delta's employees could not know that this type of activity was prohibited. According to her, the termination was in retaliation for her lawful union activity.

Blogging issues in the workforce are multi-faceted. These include: (a) can a company suspend someone for opining about a manager in a personal blog; (b) should companies review a candidate's personal blog as part of the hiring process; (c) are there such things as blog "rules"; (d) how should blog "rules" be enforced; (e) can companies monitor blogs and make decisions based on the content of an employee's blog; (f) what are the privacy ramifications; (g) what policies should companies consider with respect to blogs; and (h) how can these policies be enforced.

So, what should employers consider while drafting a blogging policy? They must evaluate the industry involved as well as the business culture with respect to blogs in that industry. Should the blogging policy be friendly or should it be strict? What does the business want to protect - trade secrets, confidential information, other employees from harassing or embarrassing comments? What are the confidentiality policies of the company? Does the company want to monitor all company blogs? Does the company want to evaluate all blogs before they are posted? Is there any expectation of privacy that the employee should have if he or she blogs? Is the company willing to protect the blogger? Is the company willing to protect the content of the blog? Will the company allow negative comments about the business or other individuals to be posted? What material should be strictly off-limits for any blogs? How does the company's harassment policy impact blogging content? Should there be a disclaimer of corporate liability? Should the policy allow direct and/or indirect links that a reader of a blog can access? Should high level employees be more restricted from writing than lower level employees? Should the policy cover not only company blogs, but an employee's individual blog? What are the First Amendment ramifications of the policy? What are the union ramifications of the policy, if the employer is a union shop? Are there any whistle-blowing ramifications?

In short, employers need to understand that blogging will soon be part of the business culture just as emails and cell phones have become part of our day-to-day corporate world. Evaluation of an individual employer's situation is necessary to develop the best blogging policy for that employer. Like it or not, blogging is here to stay.

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This article was contributed in its entirety with permission to Blue MauMau by attorney and writer Ms. Francine Breckenridge of law firm Strasburger & Price, LLP. Ms. Breckinridge counsels and represents companies in all areas of labor and employment law.