Bloggers beware. Blogging could cost you your job. Employers beware. Firing a blogger could cost you a lawsuit.
Blogging has entered the world of employment law. Web logs, or blogs, have given individual workers a potential audience of millions. These on-line journals allow individuals to post their thoughts on the Internet and disseminate them instantaneously to almost anyone who cares to read. Workers can write about their bosses, post pictures of themselves or the workplace, and publish comments on the inner-workings of their employers.
Employers have taken notice. And some have taken action. In January, Google fired a new employee for blogging about his impressions of his first month on the job. Microsoft terminated a contractor for posting pictures of Apple computers arriving at the company’s corporate headquarters. And Delta Airlines fired a flight attendant for posting pictures of herself posing in her Delta uniform in ways the company considered inappropriate.
But is it legal for companies to fire employees for this? The short answer is “it depends.” At least three legal doctrines help to clarify: 1) at-will employment; 2) freedom of speech and other protections; and 3) the worker’s duty of loyalty.
Companies in “at-will” states generally have the right to terminate an employee for any reason or no reason, as long as it is not an illegal one. What does this mean? It means that companies need to make sure that they are not firing an employee for a reason that is protected under the law.
For example, in Colorado (and in 29 other states), the law protects employees for engaging in legal off-duty conduct. But this law - like almost every law on the books - has exceptions. If an employee engages in conduct that either creates a conflict of interest or the appearance of one, or relates to a bona fide occupational requirement, the company may be able to fire the worker.
Freedom of Speech and Other Protections
Many workers have the mistaken assumption they have a Constitutional right to “freedom of speech” at work. However, usually this Constitutional right only protects people from government restrictions on free speech. That means that for people who do not work for the government (or for a company that contracts with the government), “freedom of speech” usually will not protect them at work.
But other laws might. For example, in Colorado, in addition to the lawful off duty conduct statute, there is a state law that prohibits employers from firing people from voicing their political views. Another law protects employees from being fired for engaging in concerted activity to make their workplaces better, such as union activity.
Workers' Duty of Loyalty
While several laws might protect employee speech, workers also have a duty of loyalty to their employers. While this does not mean that they cannot ever express negative views of their work environments (clearly employees have a right to complain about discriminatory treatment under anti-discrimination laws), workers should be very careful about printing things about their employers that would be harmful.
For example, in one case in Denver, a Delta baggage handler wrote a letter to The Denver Post, criticizing Delta’s decision replace laid-off full-time employees with hourly contract workers. After the worker was fired, a lawsuit ensued. The federal court held that because employees owe their employers a duty of loyalty with regard to public communications, the firing was justified.
These cases all will vary depending on the facts of each case. An employee may have a right to complain to the newspaper or Internet readers about discrimination that violates the law, such as discrimination based on race, color, national origin, religion, sex, age, disability, and other protected categories, if there is a valid basis to do so. However, an employee may not post secret, confidential company information to a public source. There will be many scenarios ranging from conduct that is clearly protected (such as discrimination complaints under most circumstances) to the wrongful disclosure of confidential information. Each one should be considered separately and based on the facts of each case.
Tips for Workers
1) Check your employee handbook for policies regarding blogs, and if you have questions, ask HR or an employment attorney;
2) Before you publish anything publicly, have someone you trust review your work to make sure you are not just lashing out;
3) Never, ever publish something about your employer in the heat of anger;
4) If you plan to publish anything about your company, be sure you have a factual basis, evidence to support your statements, and be ready to lose your job.
5) If you have been terminated for blogging or publishing something against your employer, seek legal assistance, and don't forget that most legal claims have deadlines - if you fail to meet the deadline, you may not have any legal claim.
Tips for Companies
1) Check your employee handbook to see whether it has blog or Internet policies - if not, consider having an experienced attorney review and update your handbook;
2) Try not to fire an employee in the heat of anger;
3) Before making a termination or disciplinary decision, be sure you investigate properly and know whether any laws limit your rights to take disciplinary actions;
4) Answer your employees' questions about blogs, and try to maintain open communications with them about issues that concern them - lest they take it to the Internet!
Bloggers and companies should all beware of the power of the pen – or in this case – the Internet - and act wisely. Don't be afraid to contact legal counsel to help if you have questions. It's better to handle a problem when it is big enough to see but still small enough to solve.