Losing Your Job Over Blogging

By: Pani Vo

Millions of people chronicle their lives on a regular basis using online diaries, known as blogs.[1] There are tens of millions of blogs with tens of thousands of new ones starting up each day.  It is estimated that 5% of American workers keep a personal blog.[2] Blogging has become a growing concern when employees gripe about their jobs, their bosses or their colleagues.[3] Increasingly, many of these employees have been terminated from their job as a result of blogging.

Employers have an interest in protecting trade secrets, preventing liability for statements made by employees and maintaining a positive public image.[4] Employers are also fearful of employees disclosing confidential information in a blog after becoming unhappy with their salary or after having a bad day at work.[5] This occurred recently when a Google employee was fired for blogging about how he used to earn greater benefits while working at Microsoft.[6] But can employers legally discharge an employee for what is put on their personal blog?

Yes; under the employment-at-will doctrine, “both the employer and the employee may terminate the relationship at any time, with or without cause, as long as the termination does not violate a contract or employment-related statute.” Furthermore, many employers have begun to adopt blog policies to protect themselves against wrongful discharge claim.[7] Bloggers have a false sense of security that their postings are entitled to First Amendment protections.  However, these protections are not absolute and do not shield employees from at-will employment.[8]

Although there is currently no legal recourse for claims related to blogging, there are certain scenarios beyond express and implied contracts where employers could be civilly liable for wrongful discharge of an employee.[9] For example, in the case of the Delta Air Lines employee who was fired after she posted pictures in her Delta uniform, the employee was able to show that male Delta employees who had posted similar pictures of themselves had not been disciplined and was able to successfully bring a gender-based discrimination claim.[10] Employee bloggers may be protected if their blogs are private (requiring username and password for access) and employers may face liability for violating the Stored Communications Act for improperly accessing a private log.[11] Also, an employee blogger may be protected if their blog is devoted to work-related issues rather than work-related griping, under the protections of Section 7 of the National Labor Relations Act which “guarantees employees the right to engage in concerted activities” including “for the purpose of mutual aid or protection.”[12] Blogging anonymously may be one way to avoid discipline, although employers may seek to identify anonymous bloggers and seek injunctions to prohibit postings.[13]

Ultimately, blogging is not worth losing your job over and “water cooler” griping is best reserved for another forum.

[1] See Robert Sprague, Fired for Blogging: Are There Legal Protections for Employees Who Blog?, 9 U. Pa. J. Lab. & Emp. L. 355, 355 (2007).

[2] See id. at 356.

[3] See id. at 357.

[4] See Tracie Watson & Elisabeth Piro, Bloggers Beware: A Cautionary Tale of Blogging and the Doctrine of At-Will Employment, 24 Hofstra Lab. & Emp. L. J. 333, 336 (2007).

[5] See id.

[6] See id.

[7] See Sprague, supra note 1, at 371.

[8] See Watson, supra note 4, at 358.

[9] See id. at 335.

[10] See Sprague, supra note 1, at 362.

[11] See id. at 363, see also 18 U.S.C. §§2701-2712 (2006).

[12] 29 U.S.C. §157 (2006), see also Sprague, supra note 1, at 365.

[13] See WILLIAM E. HARTSFIELD, 1 Investig. Employee Conduct §6.42 (2010).

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