Editor’s Note: Jeremy R. Sayre is a member of the Labor and Employment Practice Group at Ward and Smith, P.A.

Chances are that someone on your company’s payroll has an interactive online journal, or a "blog" (short for "web log"). Maintaining a blog is how a growing number of people express their opinions, tell stories, share photos, or otherwise make a name for themselves before an ever growing internet audience. Roughly 185 million people worldwide (22 million in the United States) have authored blogs, many writing anonymously or pseudonymously. With as many as 350 million people now reading blogs, it will not be long before someone finds out what your employees are saying about – and possibly on behalf of – you and your business.

Risks Posed by the Work Related Blogosphere

If they can think it, they can blog it. Employee blogs hold frightening potential for exposing employers to liability, damaging their public image and internal morale, and causing other economic harm. With no warning to the employer, even well meaning employees can post information on their blog that might ruin a business deal, violate the trust of a valued client or customer, or even put the employer in violation of securities regulations. While many employees’ personal blogs feature legitimate, innocuous, and sometimes hilarious musings, the knowledge that vindication is only one damaging comment away also makes blogging an attractive medium for a disgruntled employee who wants to lash out against the employer.

Additionally, many bloggers may not realize the size or membership of their potential audience. By writing anonymously or under a pseudonym, employee bloggers may feel emboldened to make remarks that are more inflammatory and damaging than any they would make using their own names.

At a minimum, employers should appreciate the following risks:

• Harassment and Discrimination Claims. If a supervisor’s personal blog disparages an employee, the employer might be accused of creating a hostile work environment. The same may apply to a non supervisory employee’s blog if the employer is aware that the blog includes a pattern of harassment. In addition, certain derogatory comments blogged by employees and supervisors may cause an otherwise lawful employee termination to appear to be motivated by unlawful racial or other discrimination in violation of applicable law.

• Defamation Claims. Employees who use their blog to bad-mouth others may embroil their employer in a libel suit if they appear to be blogging in connection with their job. This is true even for fiercely loyal employees who, for example, may be inspired to attack their employer’s competitors, unaware of the potential legal consequences. Moreover, bloggers who defame their own coworkers and employer may dampen corporate morale and irreparably diminish the business’s goodwill. Such blogging has been linked to declines in a company’s stock value.

• Breach of Confidentiality. Any work related data accessible to the employee may find its way onto the employee’s blog. This may include company financial records, client files, proprietary information, intellectual property, and sensitive or privileged materials. Certain disclosures, which may well go unnoticed by the employer, also may compromise the special legal status of the employer’s trade secrets.

Obstacles Faced by Employers in the Battle of the Blog

Once an employee posts potentially damaging work related content on a blog, it may be too late for the employer to take any meaningful action. Even a lawful termination of the employee blogger may create problems for the employer. Thus, prior to taking any adverse action, employers are well-advised to consider the following practical and legal limitations:

• The Constitution and Labor Laws. A government employer who attempts to place limits on employees’ blogs may violate the employees’ First Amendment rights to free speech. Federal labor law also imposes penalties on private sector employers who discipline employees for engaging in certain protected speech, such as conversations relating to wages, work conditions, or union organization. These protections apply even in at will employment states like North Carolina. Other statutes protect any employee who acts as a "whistle blower" in reporting the employer’s unlawful activities. In some states, laws protect personal postings that only incidentally reflect poorly on the blogger’s employer.

• Savvy Blogging Culture. Even if a harmful blog posting is not protected by law, the employer may have difficulty identifying the author of the injurious comment. Bloggers commonly take measures to preserve their anonymity and have developed tools uniquely for this purpose, benefiting from a growing network of resources that includes the work of many thousands of technology experts and attorneys.

• Practical Difficulties. Firing the employee blogger may motivate the employee to make further incendiary posts. Disciplined employees who retaliate in this reckless manner often have very little to lose, and if they have no way to pay for the harm their vicious blogging causes, the employer may be unable to justify the time and expense involved in bringing a lawsuit against them. Since some blogs amass a large readership, an employer who disciplines or fires the blogging employee may risk alienating part of its market share by (among other things) appearing to violate "free speech" rights, whether that is legally true or not.

Managing the Risks of Employee Blogs

While legal and practical limitations make it impossible or unwise for employers to silence employee bloggers completely, a clear and common-sense employee blogging policy may help employers avoid potential liability arising from an employee’s indiscretions on a personal blog. An effective blogging policy should allow employees to feel free to blog – off the clock and from their own computer – but give them a clear understanding of the employer’s expectations as well as the potential consequences of posting a poorly thought out remark. This is the general approach taken by several businesses which have dealt recently with problematic employee blogging, including Cisco Systems, Yahoo!, and Sun Microsystems.

Effective blogging policies require the use of disclaimers on all personal blogs and prohibit anonymous blogging, use of disrespectful language, and disclosure of company secrets or financial information. Use of employer computers and property for personal blogging also should be prohibited. However, employers should be careful to avoid adopting overly prohibitive policies that could invite claims of illegality or create an oppressive "Big Brother" work culture.

Moreover, employers should consider taking an additional step for employees with access to certain sensitive, proprietary, and other trade secret information. A properly drafted nondisclosure agreement will prohibit such employees from disclosing confidential information by any means, including through the use of a personal blog. While such an agreement cannot guarantee the confidentiality of such information, it provides an additional incentive for the employees to maintain secrecy and can be helpful in stopping an employee from repeating a violation.

Conclusion

A few keystrokes and a click of the mouse are all it takes for a blogging employee to harass or intimidate coworkers, make defamatory statements, disseminate proprietary information, or divulge trade secrets. If an employer wishes to limit its exposure, it should carefully consider taking steps to communicate its expectations to its employees unequivocally and to enforce its policies consistently and lawfully.

© 2009, Ward and Smith, P.A.

Matthew J. Cochran, a summer associate at Ward and Smith, P.A., contributed to the research and authorship of this article.

Ward and Smith, P.A. provides a multi specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Jeremy R. Sayre practices in the Labor and Employment Practice Group where he focuses on employment counseling and employment litigation. Comments or questions may be sent to js@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.