Blogger Beware: The Boss Has You Bookmarked

Employers and employees alike are exploring the world of blogging, a popular form of online journaling, for professional and personal use. Blogs can be used by businesses as a form of marketing, to share details with potential customers on products and services, but unregulated comments made online by employees have the potential to spread negative images, sensitive information and even misinformation about a company.

The Employers Association of New Jersey in Livingston warns that many businesses have yet to address what is appropriate blogging activity by employees, including after work hours. John Sarno, president of EANJ, said while employees might assume the First Amendment allows them to blog without consequence, their words may land them in hot water.

“Blogging is another form of off-duty conduct that may harm the reputation of the company,” Sarno said.

EANJ recommends businesses create and explain policies on nondisclosure and confidentiality to prevent slips of the cybertongue by employees. That may seem like a primer for legal disputes over free speech, but Helen Tuttle, an attorney with law firm Drinker, Biddle & Reath in Florham Park, said issues of blogging and the workplace have yet to face extensive legal scrutiny.

“Employers are obligated to let employees know what activity is acceptable when it comes to the company,” she said. “However, it is terrain we are still learning to navigate.”

Even some employee rights groups acknowledge that a blistering blog post can lead to a pink slip. Lewis Maltby, president of the National Workrights Institute in Princeton, said employees are in for a rude awakening if they assume online activities are completely protected by First Amendment rights.

“Most people think they have a right to free speech where their boss is concerned,” Maltby said. “That’s just wrong. They just don’t know.”

Under the terms of at-will hiring, an employer may dismiss an employee with little or no reason, with some exceptions for race and gender, but “there is no exception for free speech,” he said.

Before such action is necessary, Sarno said, employers should take a clear stance on blogging that may implicate the company. Companies may create their own blogs for employees to address the public in an official capacity, though Sarno said if an employer encourages blogging for marketing purposes, the content will likely be strictly controlled. Blogging under such terms “is a tool for business. It’s not a tool for free speech,” he said.

Sarno pointed to policy changes made in March by Cisco Systems Inc. as an example of establishing clear rules on employee blogging on their own time. Networking equipment supplier Cisco, in San Jose, Calif., said an attorney in its intellectual property department, Rick Frenkel, created an anonymous blog that commented on certain company policy and legal matters. Frenkel’s blog, Patent Troll Tracker, covers patent litigation, an area the company is involved in; when Frenkel’s identity as the blog author was revealed in February, Cisco said it created confusion in the public as to whether Frenkel’s opinions were that of the company.

Cisco now requires its employees to clearly identify themselves when commenting on matters that relate to company activities as well as state that opinions are their own, not those of the company.

Employees who sound off anonymously aren’t necessarily safe, either. Product disparagement and efforts to ruin a company by attacking its reputation may lead to court orders to get names of anonymous bloggers from Internet service providers, Sarno said; even making comments about an employer’s peers and competitors can be actionable. “Employees resist the idea that they can be fired for off-duty conduct,” Sarno said.

Though she could not point to any high-profile examples of an employee caught besmirching an employer via a blog, Tuttle said businesses remain concerned about protecting their reputations, since inaccurate statements made online are hard to correct, she said. “Nowadays, what’s put out in the public is taken as gospel,” Tuttle said.

Tuttle said companies are recognizing the threat of improper disclosure through blogs, and are starting to warn employees about their conduct. “Companies thrive on their internal polices to maintain a competitive edge,” she said.

It is not necessary for a company to create a whole new set of policies, she said. An employer can expand on existing rules that presumably include maintaining confidentially. “A blogging policy simply carves out that specific area,” Tuttle said. “All employees already owe a duty of loyalty to the company. We are not reinventing the wheel.”