I just found out that one of my employees is keeping a running diary on a personal website. A lot of the diary concerns his job here, his complaints about management and his coworkers, etc. Needless to say, I’m quite upset about this—it’s unprofessional, and I know he’s been encouraging other workers to check it out. Can I fire him for this? — Jamie in L.A.
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Blogs—short for “web logs”—have fast become a thorn in employers’ sides. Blogs are online public diaries, and bloggers, as they’re known, often use their blogs to write about thoughts or issues important to them, including information related to their jobs. The Employer Resource Institute’s senior editor, Carolyn Rashby, offers some suggestions.
The risks for employers from employee blogs are similar to those stemming from employee e-mail and instant messaging, ranging from disclosure of sensitive information, to negative publicity and defamation, to lost work productivity when the blogging takes place on company time. What’s more, you could get hit with a lawsuit if bloggers hold themselves out as representatives of your organization and post offensive material online.
The big question facing employers is whether they can fire an employee over a blog. If the blog contains information about your company that’s defamatory, breaches a confidentiality agreement, or reveals your trade secrets, you’ll be on sound footing to terminate the employee. Similarly, you can probably fire an employee who is blogging on company time, particularly if such computer use violates your written policy regarding use of company computers. And chances are that you can fire an employee who is publicly bad-mouthing your company, ridiculing a boss, or casting your products or services in a bad light, especially if you have at-will or employee loyalty policies.
A blogger who criticizes his or her employer during off-duty time could argue protection under a special California law that bars employers from demoting, disciplining, or terminating an employee for lawful conduct occurring during nonworking hours away from the employer’s premises. How this law applies in the blogging context remains untested in the courts. But an employer in this situation would probably have a strong argument that the blogging was linked to the employee’s job—and thus outside the law’s protections.
Nevertheless, before taking adverse action against the blogger, you should take a few precautionary steps. Carefully review any employment or union agreements to ensure that any adverse action you’re taking doesn’t violate their terms, and assess whether your actions could be construed as discrimination or retaliation for protected employee activity, including whistleblowing. Inconsistencies in your blogging-related discipline could open you up to bias claims. You should consider seeking counsel to discuss the particulars of your situation.
Carolyn Rashby is the Employer Resource Institute’s senior editor.