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Blogs have introduced significant new elements in labor and employment law. As with e-mail-the digital equivalent of thinking out loud-people often ignore the consequences of these communications, which can instantaneously become public. Inexplicably, despite the fact that blogs are generally open to anyone who has access to the Internet, bloggers often consider what they write somehow to be private and anonymous. While vocally unhappy employees and former employees have always had the potential to create difficulties for employers, in the new era of e-mail and the Internet, these complaints become much more disruptive and difficult to ignore. In one notorious example of an ill-conceived blog, an assistant U.S. attorney from New Jersey wrote an anonymous blog entitled “Underneath Their Robes,” which featured postings such as “Super hotties of the Federal Judiciary.” The author, who wrote under a female pseudonym for 18 months, finally revealed his identity in the New Yorker in November 2005. He ended his anonymity because “the blog’s success left him ‘frustrated that [he] was putting a lot of time into this and was unable to get any credit for it.’ ” Charles Tourant, “ Demise of ‘Underneath Their Robes’ Holds Lessons for Bloggers on Federal Courts,” N.Y.L.J., Nov. 21, 2005, at 1. The practice of discharging employees because of their blogging activities has spawned its own industry of bloggers who post about this experience. It even has its own new slang term: Being “dooced,” in blogging terms, means being fired as a result of posting a blog. See Heather B. Armstrong, Dooce, at www.dooce.com/about.html. One blog lists names, dates of termination, employers and links to blogs of people who have allegedly been disciplined or fired for their blogging activity. See Morpheme Tales: Statistics on Fired Bloggers, at http://morphemetales.blogspot.com/2004/12/statistics-on-fired-bloggers.html. Court upholds a terminated employee’s right to blog A recent case reveals how difficult it may be for employers to curtail these activities. In Bynog v. SL Green Realty Corp., 2005 U.S. Dist. Lexis 34617 (S.D.N.Y. Dec. 22, 2005), the plaintiff was employed as a concierge at a Park Avenue building. She was fired, she claimed, after her co-workers made discriminatory and threatening comments. She implemented various methods to publicize her termination, among them maintaining a Web site, www.thatgreengirl.com. The Web site included a blog and a timeline chronicling the events of her termination, testimonials and comments from tenants of her building. SL Green sought to curtail Shyron Bynog’s conduct with a preliminary injunction, but the court denied the request, ruling that the injunction would constitute a prior restraint of protected speech, “the most serious and the least tolerable infringement on First Amendment rights.” Id. at 8. A particularly disturbing example of the power of blogs is presented by Faegre & Benson LLP v. Purdy, 367 F. Supp. 2d 1238 (D. Minn. 2005). There, the plaintiff law firm and two of its partners sued the creator of various Web sites who objected to Faegre’s apparent work on behalf of pro-abortion rights groups. The lawsuit alleged violations of trademark laws and defamation. The “counterfeit” sites contained altered versions of Faegre’s official Web page, featuring the same color scheme, layout, buttons, fonts and graphics, but it included graphic photographs purporting to show aborted fetuses. The counterfeit sites also reprinted the bios of certain Faegre lawyers, again using the same graphics as the official Web page, but added inflammatory statements regarding their alleged work on behalf of abortion clinics. Notwithstanding this, the court held that because the counterfeit sites included a clear parody disclaimer stating “Critical Faegre Website Parody” or “Official Faegre Parody Website,” the sites did not offend the law. However, some of the names were confusingly similar, and the court ruled that the defendant misappropriated the partner’s pseudonym by using it to create a domain name, and concluded that the defendant had violated the terms of a previously issued preliminary injunction, ordering that it pay substantial damages. The ability of a blogger to post anonymous comments regarding an employer or a business has resulted in a number of defamation lawsuits. But it is often a challenge for the plaintiff even to identify the defendant, and courts have articulated differing standards in determining whether an Internet service provider (ISP) needs to reveal this information. In Delaware, for example, a local politician brought a defamation claim against an anonymous blogger (“John Doe”) and made a motion to compel his identity from Comcast, the ISP. Doe I v. Cahill, 884 A.2d 451 (Del. 2005). The state supreme court ruled that a defamation plaintiff who makes a motion to compel the identity of an anonymous party must set forth sufficient facts to establish summary judgment on the claim. This heightened standard was necessary to protect the anonymous blogger’s First Amend- ment rights. Notably, the court acknowledged that information posted on blogs is inherently unreliable. It found that the context in which a blog is written, the use of slang, relaxed grammar and informal style “strongly suggest that [it is] the opinion of posters” and not fact. Id. at 463. In Apple Computer Inc. v. Doe, 2005 WL 578641 (Calif. Super. Ct. 2005), the court ruled in favor of discoverability. Apple filed a lawsuit against unnamed bloggers who, Apple alleged, leaked specific trade-secret information about new and unreleased Apple products on various blogs. Apple issued a subpoena to the bloggers’ e-mail service provider requesting information about the identities of the bloggers. Under a civil code defining misappropriation and a criminal code defining trade secrets, the court found that Apple “passed the thresholds necessary for discovery to proceed” and established a prima facie case of misappropriation. Id. at 3-4. The court denied the bloggers’ motion for a protective order. The bloggers, whether considered journalists or not, were not protected by privilege or the state shield law because “there is no license conferred on anyone to violate valid criminal laws.” Id. at 7. Some blogging activity may violate criminal law. In New York, a person commits a misdemeanor when, “with intent to harass, annoy, threaten or alarm another person, he or she . . . either . . . communicates with a person, anonymously or otherwise, by telephone . . . or any other form of written communication, in a manner likely to cause annoyance or alarm. N.Y. Penal L. � 240.30(1)(a). Repeated violations of that statute constitute a felony. See also id., � 240.25. Communications over the Internet may violate these laws. People v. Munn, 688 N.Y.S. 2d 384 (Queens Co., N.Y., Crim. Ct., 1999). Federal law also bars the interstate transmission of extortionate threats to injure another person’s property or reputation. 18 U.S.C. 875(d). While some blogging activities may violate the law, employers need to be cautious, for federal labor law may shield some bloggers from retaliation. The National Labor Relations Act protects employees who engage in protected concerted activities. Employee communi- cations to the public are protected by the NLRA if two tests are met. First, the employee’s posting must indicate it is related to an ongoing “labor dispute” between the employee and his or her employer. Second, the posting cannot be so disloyal, reckless or maliciously untrue that it forfeits the act’s protection. An employee’s public statements to third parties can be protected even if there is no union involved. The employee’s comments must involve a controversy concerning terms and conditions of employment. Comments that the company’s employees are overworked, underpaid, have poor benefits, etc. all may constitute “labor disputes,” even in the absence of any labor union. By contrast, if the employee’s postings simply disparage the employer’s business and/or products, they are not protected by the act. In Endicott Interconnect Technologies, 345 NLRB No. 28 (Aug. 27, 2005), an employee posted a pro-union message on a newspaper’s chat room, in apparent violation of a no-disparagement rule in the company’s employee handbook. The National Labor Relations Board’s administrative law judge found the employee’s comments protected and, by a 2 to 1 vote, the NLRB affirmed. Endicott warns employers that the possible application of the NLRA must be considered when disciplining or discharging employees for their blog or chat room comments. Of course, federal, state and local discrimination laws protect employees from retaliation for complaining about violations of those laws-and Sarbanes-Oxley’s whistleblower provisions protect employees who complain about violations of securities laws. But not all employee complaints are protected. The 2d Circuit held, in Matima v. Ayerst Laboratories Inc., 228 F. 3d 68, 79 (2d Cir. 2000), that even a complaint of discrimination “can be so disruptive or insubordinate that it strips away protection against retaliation.” Employers need to implement clear policies Employers are not without remedy. They should implement policies making clear that employees should not share confidential or trade secret information in blogs, over the Internet or in any forum where doing so is not required by the needs of the business. They should make clear that inappropriate posting or disclosure of private employer information-in any forum-may result in discipline up to or including discharge. It may even make sense for a company to create its own blogs, on which employees may freely post-on the theory that public airing of issues of interest may be helpful to the exchange of ideas and productive for the company. Moreover, these blogs can be effectively monitored, and inappropriate postings promptly removed. Philip M. Berkowitz is a partner in the New York office of Nixon Peabody, where he represents companies in employment-related matters.

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