You’re sitting in the privacy of your home, messing around on your personal computer, working out your anger and frustration in a “blog,” or online message board. Maybe you’re just having a little fun , at a co-worker’s, or even the company’s, expense. So, what’s the harm?
But what if your supposedly harmless blogging causes your company’s stock to fall, or otherwise damages its reputation? It can happen. One recent incident involved a large, publicly traded company in San Diego.
“I had a situation where a former employee put out untrue information about a company on a message board that might have led to the company’s stock being downgraded,” said Craig Schloss, managing partner of Morrison & Foerster in San Diego and an employment and labor specialist. “The case was resolved with the agreement that the person would never post anything about the company again.”
While proving this kind of damage in court would have been difficult, said Schloss, “If an employee, or even a former employee, puts out false information on a message board, it’s actionable, and not only could the employee be terminated, but the former employee could be liable for damages.”
Then there was a recent case of a counselor working at a summer camp for children, who not only posted disparaging comments about his employer on the MySpace.com Web site, but also admitted to drug use. One of the camp kids spotted it, told a parent who, in turn, reported it to the counselor’s boss. The employee was fired.
“They felt that it was inappropriate to have the counselor continue, someone who is supposed to be a role model,” said Schloss, who had represented the camp.
For the untutored, a blog, or Weblog, is defined as a mixture of what is happening in a person’s life, or what is happening on the Web , a hybrid diary or guide site, but there are many variations.
The way Schloss sees it, the Internet is nothing more than a “super-sized water cooler” variation of the old office gossip mill, or a high-tech version of the mailroom guy with loose lips.
“Now, with this technology, it’s a much bigger deal,” he said. “It becomes a lot more difficult to hide what you did. E-mail and electronic discovery makes it so much easier, because usually e-mail leaves an electronic information trail.”
Adventures In Cyberspace
But there is nothing cut and dried about labor law in cyberspace.
“That statute is open to a lot of dispute,” said George S. Howard, a partner in the San Diego office of Pillsbury Winthrop Shaw Pittman and a specialist in labor and employment law. “Trashing your boss is not protected by labor code.”
Neither is plotting ways to disrupt a business.
Consider a recent case involving 27 employees , now former employees , at some of the San Diego offices of the Automobile Club of Southern California. They were fired this month for posting remarks on the weight and gender orientation of fellow workers on an online message board, as well as discussing ways to slow down roadside service.
“That’s our key business,” said Carol Thorp, spokeswoman for the Automobile Club. “Imagine if you called us, and they didn’t put your call through and kept you waiting a lot of time. This is serious for us. It’s our core business.”
So far, she said, there have been no lawsuits filed by the employees that Thorp knows of, nor does she recall any similar incidents at the Automobile Club.
“Messaging, blogging, it’s a new phenomenon,” Thorp said. “It’s a first for us. The only reason we found out is that one of our employees who was criticized came to us and complained, felt harassed. When someone feels harassed, it becomes a legal issue and we have to investigate.
“In our case, the real issue is that the blogger created a hostile working environment, and those actions demonstrate a disregard of our members and member services, and that is a violation of club practices,” she added. “In this day and age, with all the information flow, people think they can say anything about anything, but this is not a free-speech issue.”
The First Amendment
Andrew B. Serwin, a partner in the San Diego office of Foley & Lardner LLP, who specializes in legal issues involving the Internet, recently published a 400-page book titled the “Internet Marketing Law Handbook,” a guide for both cyber and brick-and-mortar businesses. The book covers such issues as data privacy, security, marketing and the law of unfair competition and false advertising.
Serwin’s advice for employees e-mailing both inside and outside of the office: Don’t assume anything.
“In California, most employees are at-will employees and can be fired for any reason or no reason, as long as it’s not a wrong reason,” Serwin said.
When it comes to free speech, he said, you can’t assume it’s always protected.
“The First Amendment argument is certainly true when you are dealing with government entities, but it’s not always necessarily true with private employers,” he said. “It’s not as simple as saying, ‘We have a First Amendment right.’ That’s not to say that if your employer is harassing you, you can’t take action.”
Brandon Moreno, managing director of Genesis Global Solutions Corp., a San Diego-based human resources consultant, said that employees can be clueless on the subject.
“Even though the blog may be done off-duty, I believe employees are not aware of their personal liability if they are to post disparaging comments about their work or job,” he said. “We are not talking about First Amendment rights here, we are talking about being personally held liable for charges of libel, slander, trade secrets and privacy acts, to name a few. Little case law has been established about blogging, so future trends on liability will be significantly affected in the coming months and years.”
While Moreno doesn’t give legal advice, he offered some guidelines for employers: Establish a clear, concise policy regarding blogging. Make off-duty bloggers state that they are not writing on behalf of the company; require that the blogger must be respectful of employees and the company when mentioning either.
“Brainstorm ideas with your general counsel or seek legal assistance to ensure that all necessary topics are covered,” he said. “By having policies and/or guidelines in place, employers may be more likely to prevail in litigation issues.”
Dianna Johnston, an assistant legal counsel for the U.S. Equal Employment Opportunity Commission in Washington, D.C., said that liability for off-site blogging depends largely on to what degree it crosses over into the workplace.
“The off-site element complicates the issue for sure,” she said. “If it has the potential to become workplace harassment, in that case, the employer would have the authority to take appropriate disciplinary action.”
Brave New World
The big issue is, when is the line crossed?
Another recent case involved a San Diego woman who was a longtime employee at a local business, received glowing reviews, but then was fired for what her employer initially said was her poor performance.
According to San Diego attorney Dale Larabee, who represented her, the dismissal happened shortly after a local TV reporter visited his client’s place of employment, investigating a suspected pyramid scheme involving a club the woman belonged to. When Larabee subsequently asked the employer why they had fired her, he was told that his client had been e-mailing on company time, trying to drum up membership for her club.
“She said, no, it was on her own time, during breaks at work,” he said. “It’s outrageous they can do something like this. Everything had been fine, she had a stellar performance and was a high-ranking employee.”
They sued and lost.
“The labor code allows you to do whatever you want to on your own time,” said Larabee. “You can join the Communist Party, you can cross-dress, and as long as you’re not disruptive at work, they can’t fire you.”
But, in this case, he said, “The court said it didn’t apply to free speech.”
Because this was an “unpublished” decision, said Larabee, it can’t be used as a precedent, meaning that the state’s labor laws will remain “murky, until we get a really strong decision, setting public policy.”
Where should the line be drawn between free speech and company loyalty?
“You have a duty of loyalty to your employers,” said Larabee. “When you start saying, ‘Let’s screw up the way we do our work,’ that is crossing the line, and giving the employer the basis for terminating them.”
Moreno recalled a client who recently had problems with both blogging and instant messaging.
“A senior-level employee was terminated for performance issues and then proceeded to defame their company and management team,” he said. “Instant messages were blasted across to colleagues and other employees’ messaging systems and the employee began posting blogs.”
The case is now in litigation.
“Companies are quick to jump on the bandwagon to use blogging as a means to communicate with its clients and customers, and why not?” said Moreno. “Blogging can proliferate almost as quickly as a computer virus, spreading valuable information regarding products and services. However, laws and corporate policies are not keeping pace with this phenomenon.”
While the Automobile Club hasn’t instituted any new policies as a response to its blogging incident, Thorp said, “We are considering new policies in regard to this kind of message flow.”
Rules Of The Game
There are some hard-and-fast rules for messaging in the workplace, said Howard, who generally represents employers.
“Employees, when on company time, are not supposed to do personal or nonbusiness things,” he said. “The problem is, everybody knows they use computers for personal things , sending messages to the kids, or parents, to order things from Lands’ End. I think it should involve reasonable personal use, but what is reasonable?”
Off-site messaging is less clear, said Howard. While the labor code protects employees from being retaliated against for lawful conduct occurring outside the place of business, “The statute is open to a lot of dispute,” said Howard. “Trashing your boss is not protected by the labor code. There are a lot of nebulous legal rules that employers need to be aware of. You should not reflexively discipline someone just because they are saying things off-duty.
“If it’s just trashing or running down a co-worker on a Web site off-duty, it depends on what’s being said. Would I discipline an employee? Probably not.”
Businesses should tread carefully, said Howard.
“It’s not necessarily a victory even if they win,” he said. “There’s the publicity, and it costs a lot of money to defend a lawsuit. It could generate sympathy among the other employees. I would ask, ‘What is causing this? Are there supervisors who should be acting differently?’ They need to look at what is really happening. It might be something that really needs to be looked at.”
Slander, he said, would be a different matter, but it’s still “not a black-and-white simple problem legally.”
“The employer needs to be careful,” Howard added.
But employees have to be careful too, he said, particularly if they are citing a right to privacy.
“If you put something on a blog, there is no privacy there,” said Howard.
Bernie Kulchin, the corporate vice president of human resources for Cubic Corp. in San Diego and a retired vice president of HR for General Dynamics in San Diego, also teaches a certification program at UC San Diego for HR professionals who want to hone their skills.
As a 50-year veteran of human resources, Kulchin has seen a lot. But, he said, the Internet continues to raise new issues that employers might not have had to deal with before.
“It’s so new, and employees are experimenting,” said Kulchin. “It will gradually become an issue. Employers will be revising their electronic communications policies. I think we will be seeing a lot more of that.”
In the meantime?
“I honestly think that organizations have to be put to the test of reasonableness with e-mail that is applied to non-company business,” he said. “Criticism of how a company is operating is not crossing the line if it’s constructive criticism.”
He said it’s a different story if it places the company in jeopardy in a legal way, such as creating a hostile working environment, or by putting out inaccurate or inappropriate information about the business.
“Employers do have a responsibility to their employees to take appropriate action. Does that mean the employee is fired? No, probably counseling or discipline is called for.”
Party Of Three
Where liability is concerned, a lot hinges on whether a third party is involved, said Serwin, Foley & Lardner’s Internet specialist.
“Anyone running an Internet site with third parties posting material, most of the time, the publisher, running the blog is immune if a third party posts something defamatory,” said Serwin. “If someone posts a file that is copyrighted, the Internet service provider might not be liable. The lines are very blurry. A lot of laws are relatively new and have not been tested all the way up to the Supreme Court.”
While, he acknowledged, “Anyone can sue anyone for anything,” certain cases do seem clear cut.
“If statements are being made, ‘This is how we’re going to mess up our service,’ I don’t think anyone would question that,” he said.
Patrick Nellies, managing partner at the Advantage Law Group in Carmel Valley, figures he’d be liable either way if, say, his secretary was sharing confidential client information with an unauthorized party.
“If it’s a breach of attorney-client privilege and something I didn’t authorize, I am probably responsible for it,” he said. “I could fire her for it and would. But it doesn’t protect me from ultimate liability when the client finds out. Outside the scope of her employment, if she does it off-site, I have no control over it. I could still get sued for it, but I’d have a much better argument, because I can’t monitor it there.”
With more employees working from their home computers, the issue gets even murkier. Who is liable when someone away from the workplace discloses confidential information while officially on the job at home?
“I would argue, as an employer, that it’s outside the scope of employment, as long as there wasn’t any negligence on the part of the employer,” said Schloss, Morrison & Foerster’s labor specialist. “You could make a pretty good argument for this if it was done at someone’s home.”
But, he said, “Nobody knows for sure.”
What Schloss knows is that when it comes to the Internet, there is no more business as usual.
“If somebody sets off a firecracker, it’s no big deal,” said Schloss. “But when it’s a bomb, it is. The Internet magnifies everything.”
