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Once upon a time, Web logs were benign: a person just sharing his idle, diary-like thoughts on the World Wide Web, a Haight-Ashbury of cyberspace. But nothing so simple and refreshingly naive lasts long. Web logs morphed into blogs (drop the we, “marry the b” to the rest). A few blogs quickly mushroomed into 5 million people wanting to be heard and a willing audience hungry to hear — 27 percent of Web-surfing adults read blogs daily. And, yes, the tumblers soon fell into place, with employees blogging away about their workplaces, executives, the stock price and much more. So, when an employee blogs a C-level executive’s company, what’s the response? There are two mind-sets: the first, opportunistic and business-based (let’s learn, channel and leverage); the second, repressive and legalistic (let’s regulate, squash and punish). Here’s the value of the first: The CEO of a client often tells me that all news is good news.” How right he is. Even if it’s something he doesn’t want to hear (or perhaps especially if it is), he believes he’s always better situated knowing of a potential problem, even if couched in a critical tone. Ignorance is definitely not bliss. Employees often feel more free to raise issues in blogs — whether about a poor product launch, a tyrannical supervisor or a whistle-blowing issue — than with conventional channels of communication, such as open-door policies. Executives should tap into back channel information. Blogging employees develop a reputation for subject matter expertise in their employer’s business. Because their blog reputation among competitors and customers often lasts longer than their employment tenure, cultivate them, don’t crush them. Create a graphic for them to plug into their blogs linking them to the company’s Web site. Funneling traffic to the executive’s company site means more exposure, more contact with prospective customers, more visibility. Blog culture — unrehearsed, real-time, authentic — leads to refreshing perspectives and, not infrequently, complimentary company commentary. Getting employees to reflect positively on the company is not hard. Develop a simple, nonthreatening blog policy that is a natural outgrowth of already existing electronic communications and Internet usage policies. Require a statement on the employee’s blog, such as “the views expressed on this blog are mine alone and do not necessarily reflect the views of my employer.” Tell the employees that they must not disclose (intentionally or inadvertently) a company’s confidential information or that of a third party, such as a customer, and give a few examples of what you mean. Ask the employee-bloggers to commit to not disparaging the company, its employees or its customers. Finally, no yakking away during quiet periods for publicly traded companies. That’s pretty much it. In this era of more, not less, transparency, some C-level executives (after all, they’re employees too) are also blogging away. Look at the blog of Sun Microsystems President Jonathan Schwartz, whose running commentary is punctuated with safe-harbor disclosures, often lengthier than the blog. Or check out the blog for Ray Ozzie, the former CEO of Grove Networks, (he stopped blogging when Microsoft bought the company). Ozzie’s blog talked to employees (and anyone else wanting to plug in) about workplace issues in the 21st-century business, books to read and the company’s culture. The blog linked to other sites, fulfilling a blog’s implicit promise to educate, elucidate and enlighten. The Web is all about a web of relationships. RETALIATION CLAIM Thinking of a more hard-line approach? Yes, a company can terminate an employee-blogger. Look no further than the “Queen of the Sky,” a Delta flight attendant who detailed her life and adventures in a blog. But she was permanently grounded after posting photos to her blog, posing in her Delta uniform inside a Delta aircraft. She has now started a bloggers’ rights movement to petition companies to publicize their blog policies. Or look at the hapless temp employee at Microsoft, who found himself out of his gig after posting pictures on his blog of Apple computers on a Microsoft loading dock. Yes, a C-level executive can blot-out a blogger. But be careful. Although Texas has no restriction on disciplining or firing employees for blogging, doing so in other states is more problematic. New York law prohibits discipline or discharge based on off-duty, out-of-office activity, which presumably includes blogging. The test case is out there, just waiting to be sprung on an unsuspecting employer. Or look at employees using blogs to discuss wages or benefits, or a much disliked supervisor, with other employees. If there is any suggestion that the blogger is expressing a view shared by other employees, then he’s arguably engaged in protected activity under the National Labor Relations Act (which also covers employees without a union) and can’t be fired or disciplined for it. Finally, the law prohibits retaliation against those who complain of discrimination or harassment based on a protected status such as race, sex or religion. Discipline of a blogger because he refers to his boss as a man-hater, who favors women employees over men, may lead to a retaliation claim. Remember: Constraints also abound for those getting blogged, not just those doing the blogging. Once upon a time, employees traded information at the coffee pot. No more. Now, anyone with computer access can talk about whatever they like, to whoever will listen, whenever they want. It is only going to get more so, not less. There is more return on investment for C-level execs in finding ways to leverage this inexorable trend, than in trying to turn it back. Look to ride the wave, not be swamped by it. Surf’s up. Michael P. Maslanka is managing partner of the Dallas office of Ford & Harrison. His e-mail address is [email protected] Maslanka is board certified in labor and employment law by the Texas Board of Legal Specialization. He writes the Texas Employment Law Letter and Texas Workers’ Comp Reporter.

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