My Employees Are Blogging – What Do I Do Next?
By David B. Ritter
Partner
Neal Gerber & Eisenberg

Blog search engine Technorati estimates there are more than 66 million blogs on the Internet today. It is safe to assume that many of these blogs are maintained by people with jobs, who may wish to share their feelings about their companies, co-workers, bosses, or customers. A blog provides an easy outlet for that.

The recent surge in blogging has brought about some new, serious issues for employers. These include lost productivity, negative publicity, leaks of sensitive or confidential information, and employee or third party claims of harassment or discrimination. Nevertheless, a 2006 survey of 150 Fortune 1000 executives by Makowsky and Co., found that four out of five companies had no formal process in place to monitor or even address employee blogging. As many as one in eight companies, however, had disciplined or discharged an employee for posting work-related information on their blog. This shows that employers are taking ad hoc disciplinary actions without a policy in place or an understanding of their actions’ potential legal implications and that is a sure recipe for disaster.

The sheer multitude of blogs in existence today and their exponentially increasing popularity indicate that employers simply cannot afford to ignore blogs any longer. Employers must take affirmative steps to recognize blogging and address it in their workplaces. The following three recommendations are intended to help employers do so effectively: (1) know the basic law; (2) develop a working approach to blogging; and (3) adopt and implement a good policy.

Knowing the law as it pertains to blogs requires employers to have awareness beyond the basic protections against harassment and discrimination based on race, religion, sex, national origin, disability, age or other legally protected categories. Many states, for example, have enacted laws protecting employees from discrimination based on lawful activities they participate in outside the workplace, such as smoking, drinking, or presumably, blogging. Also, depending on the content of a blog entry, it may be protected as whistleblowing, or under the provisions of the National Labor Relations Act. Having a basic understanding of these and other relevant laws can go a long way to helping employers recognize issues and avoid liability.

In developing a working approach to blogging, companies should carefully weigh what makes sense for their business and implement an individual approach that realistically reflects their structures, goals, and capabilities. Just as ignoring blogging is no longer a tenable solution, neither may embracing blogging with open arms work for some employers.

Finally, regardless of the approach an employer takes, a good blogging policy is a must. Whether maintained as part of general technology use policy or as a separate policy, it should include several mandatory provisions that: effectively disclaim the employer’s responsibility for a blog’s contents; protect the employer’s confidential and sensitive information; require respectfulness and good blogging etiquette; set out the employer’s expectations about blogging on company time; set out the employer’s expectations about the use of company photographs on or links to the company’s websites from an employer’s blog; and reference and incorporate the employer’s general employee conduct guidelines. The policy should clearly state that failure to comply with it could result in discipline up to and including termination. And, of course, to have effect, the policy must be properly enforced and reiterated to the employees frequently.

I will discuss these recommendations in detail during my upcoming presentation on blogging at the Social Media 2007 Chicago Conference. Using an example of a hypothetical blog written by an employee, we will explore just how a blogger’s ability to make various comments about a workplace can seriously harm a company. Against this background, we will consider practical tips and strategies to prevent, minimize, and remedy the negative impacts of blogging in the workplace, with a focus on formulating a workable, effective approach to blogging and, correspondingly, smart ways to implement and enforce sound blogging policies and procedures.