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Attorneys are bracing for the newest twist in employment law: handling Internet bloggers who write about their workplace or use blogs while at work. About 11 U.S. employees were fired last year for blog-related activities � almost double the previous year’s total, according to the director of the Committee to Protect Bloggers, an Oregon-based group that monitors legal actions affecting bloggers around the world. The term blog is an abbreviation for Web log: a personalized online digest where a user can share Internet links, news stories, opinions, and diary entries with a potential audience of millions. As blogging grows in popularity, employers have noticed that self-published materials could contain confidential company information, defame the corporate image, or offend co-workers with easily accessible entries. While blog-related incidents multiply, more companies are turning to employment law to write new policies and protect themselves. EIGHT MILLION BLOGS One thing’s for certain: Blogging is here to stay � and growing fast. A study released by the Pew Internet and American Life Project in January revealed that more than eight million Americans have published blogs, and that the number of blog readers had grown by 58 percent, to 32 million, during 2004. Many employee bloggers believe that blog comments are both anonymous and protected within the Internet. “It’s not a whole lot different from things people usually say around the water cooler, but now there is an audience of millions,” says Kurt Opsahl, a staff attorney at the Electronic Frontier Foundation, a nonprofit group that defends the legal rights of new technology users, from bloggers to software designers. The foundation recently protested when Judge James Kleinberg ruled that bloggers don’t have the same confidentiality protections as journalists � rejecting a protective order motion made in the lawsuit Apple Computer v. Does, No. 1-04-CV-032178 (Santa Clara Co., Calif., Super. Ct.). In that lawsuit, Apple Computer Inc. had subpoenaed three bloggers to reveal the identities of anonymous sources who allegedly gave the bloggers confidential information. The foundation appealed the decision to the California Court of Appeal on March 22 in O’Grady v. Apple Computer, No. H028579. Many employee bloggers believe they are protected by the First Amendment, but Opsahl explains that most states have “at will” employment laws where “employees can be fired at any time, for any reason, even an arbitrary reason.” Ellen Simonetti is the only blogger on the Committee to Protect Bloggers’ list with litigation pending against a former employer. Simonetti worked as a Delta Airlines flight attendant until she was fired in October 2004. According to Simonetti, she was suspended, and then dismissed, allegedly because her blog included pictures of herself wearing the Delta uniform. “I was really frustrated,” she says. “It’s unfair to be fired for a blogging policy that doesn’t exist.” After her suspension, Simonetti hired Gary Bledsoe of the Law Offices of Gary L. Bledsoe, located in Austin, Texas. In October 2004, Bledsoe and Simonetti filed a sexual discrimination charge with the Equal Employment Opportunity Commission, alleging that Delta did not fire male Internet users for similar offenses. They are still awaiting a ruling. “Here we have a situation where male bloggers are being treated differently than female bloggers,” Bledsoe says. The lawyer predicts “a wave of cases” in the near future. Delta Airlines declined comment on the EEOC complaint. Companies are struggling to avoid clashes over blogging, according to Michael Karpeles, who heads the labor and employment group at the Chicago commercial law firm Goldberg Kohn. Karpeles has counseled companies about defamation, confidentiality, and trademark protection within Internet postings. “Many employers believe wrongly that they can’t take steps to shut down disparaging or confidential material that employees or former employees post on the Internet,” Karpeles says. Karpeles recommends that employers enforce employee confidentiality agreements and file cease-and-desist orders when Internet postings grow disruptive. “Eight out of 10 times, you work out something with the employee, without litigation,” he says. Jason Boog is a staff reporter at the ALM newspaper The National Law Journal , where this article first appeared.

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