Tuesday, April 19, 2005

When the Blogger Blogs, Can the Employer Intervene?

From Anonymous:

Post anonymously, please; thanks.

When the Blogger Blogs, Can the Employer Intervene?


Published: April 18, 2005 NYTimes

There are about 10 million blogs out there, give or take, including
one belonging to Niall Kennedy, an employee at Technorati, a small
San Francisco-based company that, yes, tracks blogs.

Like many employees at many companies, Mr. Kennedy has opinions, even
when he is not working. One evening last month, he channeled one of
those off-duty opinions into a satiric bit of artwork - an
appropriation of a "loose lips sink ships" World War II-era
propaganda poster altered to provide a harsh comment on the growing
fears among corporations over the blogging activities of their
employees. He then posted it on his personal Web log.

But in a paradoxical turn, Mr. Kennedy's employer, having received
some complaints about the artwork, stepped in and asked him to
reconsider the posting and Mr. Kennedy complied, taking the image

"The past day has been a huge wake-up call," Mr. Kennedy wrote soon
afterward. "I see now that the voice of a company is not limited to
top-level executives, vice presidents and public relations officers."

As the practice of blogging has spread, employees like Mr. Kennedy
are coming to the realization that corporations, which spend millions
of dollars protecting their brands, are under no particular
obligation to tolerate threats, real or perceived, from the
activities of people who become identified with those brands, even if
it is on their personal Web sites.

They are also learning that the law offers no special protections for
blogging - certainly no more than for any other off-duty activity.

As Annalee Newitz, a policy analyst with the Electronic Frontier
Foundation, a digital rights advocacy group in Washington, put it,
"What we found is there really is quite a bit of diversity in how
employers are responding to blogging."

A rising tide of employees have recently been reprimanded or let go
for running afoul of their employers' taste or temperament on
personal blogs, including a flight attendant for Delta Air Lines who
learned the hard way that the carrier frowns on cheeky photos while
in uniform and a Google employee who mused on the company's financial
condition and was fired.

Some interpreted these actions as meaning that even in their living
rooms, even in their private basement computer caves, employees are
required to be at least a little bit worried about losing their jobs
if they write or post the wrong thing on their personal Web logs.

"I would have expected that some of the louder, more strident voices
on the Internet would have risen up in a frenzy over this," said
Stowe Boyd, the president of Corante, a daily online news digest on
the technology sector. "But that didn't happen."

In Mr. Boyd's opinion, everything about what Mr. Kennedy did was
protected speech. The use of trademarks was fair use in a satirical
work, Mr. Boyd said, and it seemed unlikely that the company would be
somehow liable for the off-duty actions of an employee, as Technorati
executives argued. It was, in Mr. Boyd's eyes, an indication that
corporate interests were eclipsing individual rights.

"I don't know what else to say," he declared. "I'm astonished."

But Ms. Newitz and others have cautioned that employees must be
careful not to confuse freedom of speech with a freedom from
consequences that might follow from what they say. Indeed, the vast
majority of states are considered "at will" states - meaning that
employees can quit, and employers can fire them, at will - without
evident reason (barring statutory exceptions like race or religion,
where discrimination would have to be proved).

"There really are no laws that protect you," Ms. Newitz said.

Martin H. Malin, a professor of law and director of the Institute for
Law and the Workplace at the Chicago-Kent College of Law, said there
were only a few exceptions.

"It depends on what the blog is," he said, "what the content is, and
whether there's any contractual protection for the employee."

Those who work for the United States Postal Service, for instance, or
a local sanitation department may have some special blogging
privileges. That is because, depending on the circumstances, the
online speech of public employees can be considered "of public
concern," and enjoys a measure of protection, Professor Malin

Employees protected under some union contracts may also be shielded
from summary dismissal for off-duty activities, at least without some
sort of arbitration. "Lifestyle law" trends of the late 1980's and
early 90's - sometimes driven by tobacco and alcohol lobbies -
created state laws that protected employees from being fired for
engaging in legal, off-duty activities, though no one is likely to be
fired simply for blogging, but rather for violating some policy or
practice in a blog.

And bloggers who are neither supervisors nor managers and who can
demonstrate that they are communicating with other workers about
"wages, hours or working conditions" may warrant some protection
under the National Labor Relations Act, Professor Malin said - even
in nonunion enterprises.

None of this, of course, answers the question of where the status of
employee ends and that of private citizen begins.

Some companies, like Sun Microsystems, have wrapped both arms around
blogging. Sun provides space for employees to blog (blogs.sun.com),
and while their darker impulses are presumably kept at bay by the
arrangement, there are hundreds of freewheeling and largely
unmonitored diaries supported by the company.

Microsoft, too, has benefited from the organic growth of online
journaling by celebrity geeks now in its employ, like Robert Scoble,
whose frank and uncensored musings about the company have developed a
loyal following and given Microsoft some street credibility.

But other companies are seeing a need for formalized blogging policies.

Mark Jen, who was fired from Google in January after just two weeks,
having made some ill-advised comments about the company on his blog
(Google would not comment on Mr. Jen's dismissal, but confirmed that
he no longer works for it), is now busy helping to draft a blogging
policy for his new employer, Plaxo, an electronic address book
updating service in Mountain View, Calif.

"It was a very quick education for me at Google," Mr. Jen said. "I
learned very quickly the complexities of a corporate environment."

With Plaxo's blessing, Mr. Jen is soliciting public comment on the
new blogging policy at blog.plaxoed.com.

Most of the points are the kinds of common-sense items that employees
would do well to remember, particularly if they plan on identifying
themselves as employees in their blogs, or discussing office matters
online: don't post material that is obscene, defamatory, profane or
libelous, and make sure that you indicate that the opinions expressed
are your own.

The policy also encourages employee bloggers to use their real names,
rather than attempting anonymity or writing under a pseudonym.

Bad idea, according to the Electronic Frontier Foundation.

Two weeks ago, the group published a tutorial on "how to blog
safely," which included tips on avoiding getting fired. Chief among
its recommendations: Blog anonymously.

"Basically, we just want to caution people about how easy it is to
find them online," Ms. Newitz said, "and that they are not just
talking to their friends on their blogs. They're talking to everyone."

But does that means that Mr. Kennedy, a short-timer, a product
manager and by no means an executive at Technorati, carries the
burden of representing the company into his personal blog?

Technorati's vice president for engineering, Adam Hertz, responded:
"It would be antithetical to our corporate values to force Niall to
do anything in his blog. It's his blog."

Yet with the spread of the Internet and of blogging, Mr. Hertz said,
it would be foolish for companies to not spend some time discussing
the art of public communications with their employees, and even train
and prepare lower-level staff for these kinds of public relations

That said, Mr. Hertz stressed that the company had no interest in
formalizing any complicated policies regarding an employee's
activities outside the office.

"I had a high school teacher," he recalled, "who used to say 'I have
only two rules: Don't roller-skate in the hallway and don't be a damn
fool.' We really value a company where people can think for

This issue of confidentiality in the case of this particular blog has been addressed adequately in discussions on protection afforded by the National Labor Relations Act to "concerted efforts" to address issues in the workplace. Employees have the right to discussions aimed at improving the workplace environment and to help identify and correct abuse and improprieties. Under Section 7 of the NLRA, any employer that attempts to interfere or actually interferes with such protected activities stands in violation of the law. Importantly, there has been no evidence that the Los Alamos National Laboratory, the DOE/NNSA, or the University of California has done so.
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