News & Articles

Human Resource Management
Published in the Rochester Business Journal
December 28, 2006
© 2006 HR Works, Inc.

Blogs: What you don’t know really can hurt you

By Candace Walters

Be honest now: How familiar are you with blogging? Specifically, do you know how to protect your business from being damaged by something that appears on the blog of an employee or ex-employee? And, should you find something that you fear will harm your company’s interests, would you know what to do?

As twentysomethings move into the workplace in droves, bringing their tech savvy, employers are being forced to take a crash course in new technology applications and the “social media” revolution. Many employers of a certain age find themselves on the wrong side of a very broad generation gap, says Michael Hausknecht, partner at Nixon Peabody LLP.

Blog is short for “web log” and refers to an online journal or newsletter that typically contains text, images and links to websites, as well as opportunities for readers to post comments. Some 60 million blogs reportedly exist today, up from 4 million only two years ago.

But employers of all sizes have been slow to recognize their significance and the potential threat they pose – as well as the golden opportunity they represent for supporting recruitment efforts, communicating effectively with employees and customers, and gaining valuable feedback.

Nationwide, indiscreet blogging has spawned several high-profile firings and red faces at corporate headquarters. Some 12 percent of the firms surveyed recently by the New York public relations firm Makovsky and Co. say they have fired someone or taken legal action because of a blog, according to the Bureau of National Affairs.

At the same time, only 19 percent of large-company executives surveyed said they have policies in place to monitor employees’ blogs, while 40 percent said they should create policies, Makovsky and BNA report.

And if large companies are underprepared, it’s safe to assume that smaller businesses with limited resources may be even less aware of the possible risks.

Uncharted legal territory

Knowing how to deal with blogs can be tricky, however, because very little Internet-specific case law has arisen, in New York or other states, Hausknecht says. Indeed, one expert suggests that blog law may be in the same place that email law was seven to 10 years ago, with few cases to guide attorneys and employers.

As blog-related claims inevitably arise, Hausknecht predicts that existing laws and statutes will be cited.

One key doctrine involves defamation – the publishing of false statements that damage another party. A person who engages in defamation, Hausknecht says, would be held liable whether he is distributing leaflets on a street corner or posting the same material on a blog.

But defamation applies only to information presented as facts. Opinions – except those that imply the existence of facts – cannot be considered defamatory. Criticizing one’s boss or the company’s products, then – however painful to the employer – may get an employee fired but otherwise may leave the employer without a legal remedy for the harm done by the employee.

“Proving defamation has always been a gray area,” Hausknecht says, “and it’s no less gray because of the Internet.”

Also at issue is the extent to which New York employees can use New York’s Legal Activities Law to challenge a discharge based on blog-related activity. The Legal Activities Law prohibits discrimination against employees and applicants because of, among other things, the legal recreational activities they engage in outside of work.

Consider, for example, an employer whose good reputation depends in part on its employees acting with integrity and maturity. What if one of those employees posts a picture of himself visibly drunk at a party, or herself wearing scanty clothing or a shirt bearing racial epithets? All of these activities are lawful and might be deemed “recreational,” Hausknecht says. It remains to be seen whether an employer will be successful arguing that firing the employee is necessary to safeguard the firm’s professional image and legitimate business interests.

Creating policies: A proactive focus

Where employers do have more control is in regulating how employees behave at work, or when using a company computer or Internet connection. Every good employee handbook includes policies outlining the acceptable uses of the employer’s time, facilities and equipment, and asserts the employer’s right to access employees’ electronic files at any time. Such policies may provide grounds for firing even when a law or statute does not.

Accordingly, employers should act now to update their voicemail / email / Internet policies and broaden them to govern blogging, instant messaging, camera phones and whatever the next waves of technology may present.

Equally important, Hausknecht says, is to articulate expectations for a workplace where ethics, moderation and mutual respect are the norm. Establishing and communicating a code of conduct that holds owners, management and employees to the same standards of integrity and fairness are good ways to set that expectation.

The employee handbook also should contain a clause requiring employees to behave in a professional manner outside of work, and to refrain from actions that may damage the company’s reputation.

Hausknecht also suggests that employers:

• Strive to cultivate loyalty, trust and a positive public perception. Companies that are well-regarded by employees and the community are better able to weather diatribes posted by one disgruntled ex-employee or customer.
• Establish and communicate confidentiality agreements and policies that prohibit disclosure of confidential material, specifying which material is involved. And keeping a tight rein on access to confidential records further reduces risk.
• Ensure effective ombudsman or complaint procedures. Providing employees with a means to air issues may reduce anger and the motivation to blast the employer in public.

How employers can benefit from blog technology

Emphasis on the risks of blogging may lead some employers to assume blogs are inherently dangerous. But forward-thinking companies are recognizing how they can use blogs as a tool to reach a large number of people instantly and in any location. The low cost of setting up and maintaining a blog offers special appeal to small businesses.

Some companies have found that younger employees are particularly receptive to communications delivered through blogs. More employers are using blogs for newsletters, memos from management, idea-sharing forums and project management tools, particularly where managers and employees are dispersed across several locations. Companies are inviting customers to visit their blogs and comment on their products and practices.

For recruiters, searching My Space and other sites is becoming a valuable part of the background check process. Hausknecht warns, however, that employers must be careful to use the same methods to screen all job candidates, and to ensure that – should an employer decide not to extend an offer – the decision is not rooted in discrimination against protected classes and/or candidates who engage in protected activities.

Monitoring employee blogs also can support efforts to improve workplace relations. While no one likes to see their dirty laundry aired to the entire, Internet-browsing world, savvy employers may recognize the advantages in their fly-on-the-restroom-wall position. A disgruntled employee may post a gripe about a workplace problem that turns out to be legitimate, and the employer can use the information to create a dialogue and correct the issue. A frustrated employee who blows off steam in a blog may be signaling her readiness for more stimulating opportunities.

Conclusion

When it comes to blogging, no employer can afford to be less sophisticated than his or her employees. Ignorance can lead to the loss of customers, vendors and prospective employees; the scuttling of important deals; the revelation of trade secrets to competitors; or the humiliation of company officials. Proactive employers will act promptly to outline expectations for what’s allowed in employee blogs, and will begin monitoring those blogs.

But, as long as the legal landscape around all employee Internet activity remains clouded, employers must proceed cautiously should they discover indiscreet information on an employee blog.

Well-prepared companies that aim to trust but verify may enjoy reduced risk of suffering blog-related damage.

Candace Walters is president and CEO of HR Works, Inc., an HR management outsourcing and consulting firm serving more than 600 clients in the Rochester, Buffalo, Syracuse and Baltimore/Washington areas. HR Works provides HR Department outsourcing, part-time and interim HR managers, affirmative action plans, HR*Stars recruitment services, legally reviewed employee handbooks and supervisor manuals, compensation programs, training and more. To offer comments, write walters@hrworks-inc.com

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