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Initially, blogging was limited to a relatively small group of individuals and companies in the technology community but, as the statistics below demonstrate, this rapidly growing form of communication has entered mainstream corporate America. Some companies are embracing this technology and encouraging their employees to blog through permissive blogging policies. Their reasoning is that blogging helps foster interest in their products and provides an accessible and interactive forum for discussions about such products. Other companies either have not considered the issue or elected not to address it. This article will examine why this issue is important to companies and what factors companies should consider before implementing blogging policies.

For purposes of background, a blog is a regularly updated journal on the Internet. Blogs are cheaper and more fluid than Web sites, and the content is quicker and easier to update and distribute to a wide audience. Blogs are particularly powerful because they allow individuals to publish ideas and give others an opportunity to respond, thus creating an open conversation over the Internet for anyone to view. The following statistics from Technorati (technorati.com) demonstrate how widespread blogging has become:

There are more than 112.8 million blogs and 250 million pieces of tagged social media on the Web.

People initiate an estimated 175,000 new blogs every day.

Individuals make more than 1.6 million posts to existing blogs on a daily basis.

Blogging raises a number of significant issues for companies. First, employers may be subject to liability if their employees publish harassing, offensive or defamatory comments on a blog. For example, in February, an in-house patent attorney for Cisco Systems Inc. admitted to anonymously blogging about company affairs, which resulted in litigation. Similarly, Whole Foods was investigated by the Securities and Exchange Commission after its chief executive officer was discovered to have posted anonymous comments about one of its acquisition targets, arguably manipulating stock prices. These examples demonstrate the breadth of liability companies may face because of employee blogging. Second, employees can leak confidential information or trade secrets, either inadvertently or intentionally, over the Internet. Third, employees can reach large audiences by anonymously posting true or false stories on blogs. Such stories can “cybersmear” employers, vendors or customers that, in turn, cause a negative effect on the employers’ products, services, goodwill and overall image. If the negative impact is substantial enough, such conduct can even affect a company’s stock price. Finally, the number of employees accessing the Internet during work for non-work reasons and the amount of time spent on the Internet during work hours can be a drain on business productivity.

Before a company makes a decision about whether to adopt a blogging policy, it should evaluate the applicable legal constraints. Although private employers generally may monitor their employees’ Internet activity, there are some statutes and laws that prohibit or limit the interception of electronic communications. For example, the Electronic Communications Privacy Act of 1986 extends the Federal Wiretapping Act to prohibit intentional and non-consensual interception of any electronic communication, unauthorized access of stored communications, and disclosure or use of information from illegally intercepted communications. The law, however, contains several exceptions, including consent by one party. The Pennsylvania Wiretapping and Electronic Surveillance Control Act also contains many of the same prohibitions as its federal counterpart; however, its consent exception requires that all parties to a communication must consent to monitoring to avoid liability.

Additional legal considerations include: whether the First Amendment is implicated by the communication (e.g., public employers exerting control over speech or whether an individual has the right to communicate anonymously on the Internet); whether the communication addresses terms and conditions of employment that could implicate the National Labor Relations Act; whether employers discover information about employees that they may not otherwise have known that triggers the protection of discrimination or leave laws (e.g., national origin, medical information, or religious beliefs); state restrictions on employment actions based on lawful off-duty conduct; and whistleblower laws such as the Sarbanes-Oxley Act, the Pennsylvania Whistleblower Law and the New Jersey Conscientious Employee Protection Act, which can be implicated if employers fire or discipline employees for comments on their blogs revealing corporate practices.

Given the rapidly growing use of blogs and the potential liability, companies would be well served to develop a comprehensive policy on electronic communications. Although each company will want to tailor such a policy to fit its own needs, the following guidelines may provide a useful framework: (1) prepare a clear and concise policy that incorporates other relevant policies regarding harassment and confidentiality; (2) include a statement that employees have no reasonable expectation of privacy regarding the use of work equipment; (3) include a statement that when employees use any work equipment they consent to monitoring of any activity or communication on such work equipment; (4) require employees to sign an acknowledgement of receipt form stating that they received, reviewed, and agreed to the policy; (5) include a statement that nothing in the policy alters the at-will nature of an employee’s employment (if your company is located in an at-will state such as Pennsylvania); (6) require employees to identify themselves and their company if they are blogging about work-related issues; (7) require employees to state that the views in the blog are those of the employee and not the company; (8) include rules regarding what screen names employees can use when blogging on work equipment or about work; (9) designate specific employees that alone have the authority to speak on the company’s behalf or use corporate logos or other identifying symbols; and (10) advise employees that they can be disciplined up to and including termination for inappropriate electronic communications.

Once an employer has established such a policy, the company should train both supervisors and employees regarding the policy and answer all questions and concerns. The employer should record the date of the training and require employees to sign their names on an attendance form. If the policy is changed or updated, the employer should conduct another training session to discuss the changes to the policy. In the absence of any policy changes, training every year or two years should be sufficient to ensure new employees are advised of the policy and to remind existing employees of its parameters. Finally, employers must ensure they enforce the policy on an ongoing and consistent basis. If a policy is not enforced, employees will simply disregard it over time and it will be difficult for the company to utilize the policy if it has to defend itself in a lawsuit.

TODD ALAN EWAN is a partner in the labor and employment law practice group of Mitts Milavec. Ewan advises and counsels clients in various aspects of the employer-employee relationship, including personnel policies, employment contracts, severance agreements, and noncompetition, nonsolicitation and nondisclosure agreements.
CAROLYN M. PLUMP is a partner in the firm’s labor and employment law practice group. Plump has successfully negotiated labor contracts, counseled clients regarding regulatory compliance, prepared corporate employment policies and handbooks, conducted investigations, and advised companies regarding the hiring, firing and disciplining of employees. She has significant experience representing clients in litigation, mediation and arbitration matters in federal court and before administrative agencies involving Title VII, FLSA, FMLA, ADEA, ADA, OSHA and the WARN Act.

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