Employers can't ignore "the juggernaut" of Web 2.0—it's in your workplace whether you like it or not, says attorney Terry Solomon. But you can manage it.

There's no question about the increasing expansion of the Internet, social networking, and the Blogosphere, she adds. But should you try to control it, or give in?

Solomon and colleague Philip L. Gordon, shareholders in the Littler law firm, gave their suggestions at the recent SHRM Legal and Legislative Conference in Washington, DC.

Some Employers Are Seeking to Gain Control

Some employers are trying to stem the technical tide, says Solomon. She cited a February 2008 survey by the American Management Association showing that:

  • 65% of employers use Internet blocking software, and of those:
    • 50% block social networking sites.
    • 18% block access to blogs.
  • 20% monitor the blogosphere.
  • 10% monitor social networking sites.

However, some employers are finding that it's better to permit access.

Relinquishing Control

Another study cited by Solomon (Awareness, Inc., September 2008) indicated that:

  • 69% of employers permit employees to use social media applications during working hours (up from 37% in 2007).
  • 75% of employees are using social media applications for business purposes.
  • 28% of businesses monitor social networking use.
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What's Out There?

For some examples of what you might object to employees doing in the Blogosphere, Solomon says, visit some "rant" sites. For example:

  • www.jobvent.com
  • www.hateboss.com
  • www.workrant.com
  • www.rantasaurus-rex.com

Employees’ Off-Duty Internet Use and Blogging

For dealing with off-duty behavior, says Solomon, you have several options:

  • Ignore the off-duty Internet use and blog postings. (Many employers choose to do this, on the theory that if you take action, you draw attention to the blog or other Internet activity.
  • Ask the employee to remove the content or, at least, to modify it so that it does not identify the organization.
  • Discipline the employee.
  • Terminate the employee. (This is not often recommended, says Solomon, as it is a little extreme for most situations.)

Discipline or termination would be based on the theory that, while in your employ, the employee has a duty of loyalty. So, you can say that, as a condition of continued employment, the employee must take down the blog, or rant, or Web page.

What Legal Risks Do You Face if You Take Action?

First, says Solomon, there may be National Labor Relations Act issues. Certain employee activities may be protected if they meet two standards:

  1. Activity must be “concerted,” that is, involving more than one employee. For example, a blog for co-workers.
  2. The “concerted activity” must be “protected,” i.e., related to the terms and conditions of employment.

Note, Solomon adds, that an existing union is not required to invoke these protections.

You can discipline an employee for using the company network for unionization activities, says Solomon, if people are on company time and using company property. However, you must be consistent about enforcing your rules. You can't disallow unionization activities but allow other solicitation activities like United Way, for example.

State Statutes Protecting Lawful Off-Duty Conduct

The second key legal danger is state laws protecting lawful off-duty conduct.  For example, Solomon says, California, Colorado, Connecticut, New York, and North Dakota have such protections. Other states have more limited protections or are considering protections.

Typically, these statutes do have an exception for a situation where there is a "material conflict of interest," she says. For example, if an employee is posting trade secrets or harming the company, the employer may usually take action to protect itself.

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The “Big Brother” Effect

Be aware, Solomon says, that employees will be upset if you delve into their off-duty activities. According to a 2007 Littler-Ponemon Institute Study, 84% of older employees and 75% of younger employees consider an employer’s review of their off-duty Internet activities to be a privacy violation, Solomon says.

Developing a Policy

What elements should you consider including in an off-duty Internet policy? Solomon suggests the following:

  • A clear expression as to what constitutes prohibited conduct.
  • A clear expression of what is permitted or required if the company is mentioned or otherwise identifiable.
  • Descriptions and/or examples of inappropriate content.

For a blogging policy, Solomon suggests:

  • No personal blogging on company time
  • No disclosure of confidential information
  • No defamatory or racially or sexually offensive remarks about other employees
  • No disparagement of the employer or its products or of the competitor
  • No use of the company logo/trademark
  • No false information or disrespect

In tomorrow's Advisor, Solomon addresses the delicate topic of online reference checking and video résumés.

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