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Litigation over employees blogging negatively about their jobs or bosses has been sparse, but most cases so far have come down on the side of the employer. Yet observers predict that a pro-employer trend in litigation won’t stop the growth of legal fights over blogs. The spontaneity and immediacy of computer blogging makes it as appealing as water cooler gossip only with a bigger watering hole, prompting companies to pony up policies controlling the practice. “This is a challenge that has never before been confronted by the corporate environment,” said Jerome Coleman, labor and employment litigator at Nixon Peabody’s New York office. The potential is there to disclose trade secrets, defame the company or create problems with co-workers and discrimination, he said. “But you can’t put an outright ban on blogging,” Coleman added. Blogs, short for Web logs, have exploded in popularity in recent years because they allow anyone to publish pet peeves, gossip or anything from the serious to the mundane in a running commentary that can be updated easily. Although the law is developing in the area, the few court rulings that have come down have been almost exclusively favorable to employers, according to Michael Fox in Ogletree, Deakins, Nash, Smoak & Stewart’s Austin, Texas, office, who has had his own employment law blog for several years, “Employerslawyer.” “There are definitely people getting fired out there,” he said, but added that there has not been much case law yet. One of the most famous concerns a Delta Airlines stewardess who posted photos of herself while posing in her uniform on her “Diary of a Flight Attendant” blog. Delta fired her and she sued for sex discrimination, Simonetti v. Delta Airlines Inc., No. 5-cv-2321 (N.D. Ga. 2005). The case is still pending. It is not a First Amendment issue for company employees to write critiques of the company in the private sector because an employer “can impose any number of restrictions on an employee,” according to Christopher Wolf, an employment law practitioner in New York-based Proskauer Rose’s Washington office. The issue comes up when a disgruntled employee or former worker blogs anonymously saying untoward things about the company, Wolf said. The company tries to find out who it is and that is difficult, and courts have made it more difficult. In a politician’s defamation suit, the Delaware Supreme Court has said that before he can force an Internet service provider (ISP) to disclose who posted anonymous comments about him, the suit must survive a summary judgment analysis. Doe v. Cahill, 884 A.2d 451 (2005). But in a California state court, a judge ordered an ISP to identify people that Apple Inc. accused of stealing trade secrets and leaking information about Apple products through Web sites, Apple Computer Inc. v. Doe 1, No. 04-cv-032178 (2005). The court left unresolved whether three ISP employees who claimed journalistic shield law protection of sources were indeed journalists. A growing tension Employment litigator Denise Cline in Smith Moore’s Raleigh, N.C., office sees areas of growing tension in the law between employers and employees who blog. A few states protect private employee political speech, but even where there is no such protection, she envisions employers confronting the Railway Labor Act if they interfere with people gathering, through blogs, to critique such things as company benefits, wages and working hours. “They can run afoul of labor restrictions,” Cline said. Another is the potential for a company to be dragged into a defamation action as a deep pocket if its resources were used for a blog that posts libelous material, she said. Disputes about employee blog posts will continue to show up in unfair termination cases, she said.

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