Several of our employees have set up a website that is for information relating to our organization. They post all kinds of materials there, including ratings of bosses and departments, complaints, blog-like rants, and so on. And then, as well, they have a calendar, announcements, birthdays, and stuff like that. It’s becoming very popular with the employees. We’re not too happy about this, but we don’t know if we can do anything about it. What do you think? —Alston, HR Manager in San Francisco
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Websites and online blogs by employees posting information about their jobs or their employers certainly pose some risk for the employers involved. Employees could inadvertently disclose confidential employer information, create unwelcome or negative publicity, and distract employees from performing their jobs while at work. In addition, any employees who purport to represent the employer could defame or post offensive information about others on the website, which could result in a lawsuit against the employer on the grounds that the employee acted as the employer’s agent when posting.
What can you do about the website? In a nutshell, it depends. If the employee reveals employer trade secrets or posts legally defamatory information about your company online, you likely can terminate the employee for such misconduct if no union contracts or other employment contracts prohibit your doing so. Also, you may even be able to bring a lawsuit against the employee.
If the employee’s postings do not reveal confidential information, legally defame, or otherwise create legal risk for the organization, you need to tread more carefully. Not all computer use will necessarily justify discipline, and some online posting may even be protected activity.
For example, you may be able to discipline employees if they are posting to the website or reviewing the website on company time using company computers, on the grounds either that they are engaging in personal activities when they are supposed to be working or that their doing so violates the company’s computer usage policy if you have one. But if you do that, you should be careful to ensure that you are not permitting other employees to engage in other personal activities (including other types of personal computer use) on work time, as disparate treatment of similar conduct is hard to justify if your position is later tested in a discrimination or retaliation lawsuit.
If the employees’ use of the website occurs on nonwork time, however, other laws could come into play. The California Labor Code prohibits employers from taking an adverse employment action against an employee for engaging in lawful activity during nonwork hours away from the employer’s premises. Some types of postings would likely be protected under additional laws providing that employees have the right to communicate with each other about the terms and conditions of their employment, including wages, and if you are a public employer, there may be constitutional protection as well.
If you have not done so already, you may want to adopt a computer-usage policy that addresses some of these issues. The policy should make clear that there is no expectation of privacy in employees’ use of the company’s computer resources and warn employees that the company may monitor their Internet and e-mail use. The policy should specify which uses of the computer system are permitted and prohibited, keeping in mind that it may be unrealistic and difficult to enforce a prohibition on all personal use. It’s a good idea to make clear that the company’s computer equipment or system cannot be used for the purpose of harassment or accessing pornography, and the policy should warn employees to take care not to disclose confidential company information online. The policy should also specify that the company will discipline employees, up to and including termination, for violations. Employees should be required to sign off on the policy and a copy of their agreement should be kept in their files. If your workplace is organized, you should give notice to the union of the policy as well.
Sandra Rappaport is a partner at the San Francisco office of law firm Hanson, Bridgett, Marcus, Vlahos & Rudy.