Beware of blogs

Blogs are booming. According to current estimates, there are more than 150 million Weblogs or “blogs” live on the Web today. And it is thought that some 900,000 new blog postings are added daily. Most have nothing to do with the workplace, though disgruntled employees or ex-employees increasingly are using blogs to lash out at an employer, supervisor or co-worker, or to post confidential information or trade secrets.

How should employers deal with this issue?

 As an at-will employment state, Colorado generally gives employers the right to place limitations on employee activities, including blogging activity, especially if conducted on company time. But what about after hours? While Colorado law generally prohibits employers from terminating employees for lawful, off-the-job conduct, that protection is not absolute. Employers have wide latitude in restricting such conduct where necessary to avoid a conflict of interest with any responsibilities to the employer or even the appearance of such a conflict. Blogging often presents such a conflict.

 To clarify the limits placed on employees, many employers are implementing blogging policies. These policies can, for example, include the following provisions: 

· Employees should not be permitted to write blogs while at work, regardless of subject matter. Such an action may be viewed as an abuse of company time and inappropriate use of company computers. 

· Employees should be strictly prohibited from posting trade secrets or other confidential information about the employer’s business on blogging sites. Such information would include upcoming new products or projects that have not been publicly announced, information about discounts offered to certain customers, or personnel information about other employees. 

· Employees should be strictly prohibited from identifying themselves as company employees or suggesting that they are presenting the company’s views in any blogging activity that is not specifically required of them as part of their jobs. 

· Employees should further be prohibited from using blogs to harass or attack any employee, contractor, customer or vendor based on sex, sexual orientation, race, national origin, religion, age, disability or other protected category. 

· Employees should be advised that laws against defamation and libel apply to blogging, and that they may be subject to legal action for spreading disparaging and untrue information about the company or for defaming another person. Defamation is generally defined in Colorado as a written or verbal statement that holds an individual up to contempt or ridicule, injuring a person’s reputation in the community. Thus, falsely suggesting in a blog that an individual is a thief or a criminal, or is dishonest or sexually promiscuous, can result in legal action for defamation. 

· Laws against invasion of privacy also apply to blogging. Employees should be warned that posting private information about another person’s medical, financial or sexual affairs may expose them to a lawsuit. 

· Employees should be advised that they will be subject to disciplinary action, up to and including termination of employment, for violation of the company’s blogging policy The company also may sue current and former employees for commercial defamation, misappropriation of trade secrets or tortious interference with business relationships. Individuals may sue employees for harassment, defamation or invasion of privacy. 

· Employees also should be warned that blogging under an alias provides no protection against legal action, because administrators of blogging websites may be forced by court order to reveal the blogger’s identity. 

· Employers should be careful about going too far with any blogging policy. There may be federal or state laws that protect certain blogging activities. Employees may use their blogs, for example, to engage in union or political activities. 

Colorado employers currently have broad latitude to discipline or terminate employees because of blogging activities that interfere with or impact job performance; however, common-law privacy claims and statutory protections are increasing. Today’s employer must be mindful of the often delicate balance between protecting its own legitimate business interests versus an employee’s right to engage in lawful off-the-job activities. By the same token, employees should be careful not to use their blogs in violation of employer policies or at the risk of exposure to claims for defamation or invasion of privacy. As with most employer-employee issues, a dose of common sense goes a long way.

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Todd Fredrickson is managing partner in the Denver office of Fisher & Phillips LLP, a law firm representing employers nationally in labor and employment matters. He may be reached at [email protected] or 303.218.3660