by Jackson Lewis

With the increasing prevalence of blogging - posting a diary or journal on the Internet by an individual, group, or entity - employers increasingly are concerned about what employees may be saying electronically that could be harmful to business interests or that may put the organization at risk of liability for harassment and other unlawful conduct. Blogs are accessed like websites, are available to anyone through the Internet, and often invite posts, or readers comments. Through electronic devices - yours and theirs - employees may post blogs about any topic or issue. What they ate for lunch, their political views, or a confidential business deal may instantly become the next discussion thread, a prospect that has employers worried about what bloggers may be saying and what can be done about it.

That employers are concerned about their employees' posts is understandable, since they have the potential to reach a global audience at virtually no cost to the blogger. According to a recent Pew Internet & American Life Project Study, more than eight million blogs are published by Americans alone, with a readership of 32 million in 2004. ["Content Creation Online," www.pewinternet.org/pdfs/PIP_blogging_data.pdf (January 2005).]

Because of this nearly unlimited communication potential, blogging raises significant challenges for employers concerned about the broadcast of trade secrets and confidential and insider information, disclosure of which may subject the company to liability under federal or state securities laws. Blogging also may expose employers to charges of defamation or to liability for other unlawful speech or content that is later attributed to the employer.

To address these and other concerns, many employers have adopted policies regulating blogging, email and Internet use. With regard to blogging, employers in the private sector should keep in mind that, although not a constitutionally protected right of free speech, blogging activity may fall within the purview of whistleblower laws, anti-discrimination laws, and the National Labor Relations Act, which gives employees (even those who are non-union) the right to engage in "concerted activity," to discuss their terms and conditions of employment (and even to criticize their employers) with co-workers and outsiders.

With these important restrictions in mind, employers should consider a workplace blogging policy that at a minimum should state:

• company equipment, including computers and electronic systems, is limited to business use only;
• employees must abide by non-disclosure agreements or confidentiality policies;
• employees must make clear that the views in their blogs are their own and not those of the employer;
• company policies governing the use of corporate logos and other branding and identity apply, and only individuals officially designated have the authority to speak on the company's behalf;
• employees are prohibited from making discriminatory, defamatory, libelous or slanderous comments when discussing the employer, the employee's superiors, co-workers and/or competitors;
• employees must comply with other company policies (such as rules against sexual harassment); and,
• the company reserves the right to take disciplinary action against an employee if his or her blog violates the company policies.

While a blogging policy may not eliminate the risks and challenges posed by unauthorized electronic communications by employees, a policy that is well-drafted and has been reviewed for legal sufficiency may provide employers with options for taking appropriate corrective action.