Employees and Online Activity: Where is the Legal Line?

As an emerging technological craze, blogging and online networking are receiving increasing media coverage and grabbing more and more headlines. 

In December 2008, Facebook reported 55 million unique visitors, a 57% increase in one year, and the percent of adults using social networking Internet sites has increased from 8% in 2005 to 35% in 2008.

With so many more adults using these sites, it is likely that some of your employees are blogging or going onto Facebook or Twitter, possibly posting material that you think runs counter to the interests of your business.

What can you do? What should you do? It is important to note that it is not only legal but also common for employers to monitor blogs and social networking sites.

The 1st Amendment protects most types of speech, including employees who blog.  Typically what employees are posting to their websites is protected speech.  However, these employees are most likely not protected from the consequences of said speech.

A large majority of states, including Tennessee are “at will” when it comes to employment.  Being “at will” allows employees to quit at any time and employers to fire employees at any time for any legitimate reason. 

Therefore, even if the blogger doesn’t comment about work, but the employer determines the employee somehow reflect badly on it, it’s within its rights to dismiss the blogger.  

In light of this fact however, five states (California, Colorado, Connecticut, New York and North Dakota) have statutes protecting an employee’s lawful off-duty conduct, and similar legislation is pending in Michigan. These laws prohibit employers from taking adverse employment actions based on the off-duty legal conduct. 

It’s important to know that increased activity is beginning to surface around the country to gain more definitive guidelines for both employers and employees related to online activity.  While these actions do not apply directly to employers in Tennessee, their outcomes could impact the guidelines they follow.

Stay ahead of the game and consider the importance of a policy regarding blogging—either as a separate policy or as part of your electronic communications policy. The policy should include the following:

  1. Do not blog on company time.
  2. Do not disclose confidential information.
  3. Do not include defamatory or racially or sexually offensive material.
  4. Do not disparage the employer, its employees, its products, or a competitor.
  5. Do not use the company logo.
  6. Be truthful and respectful. 

Last word of advice:  Given the increasing use of blogs and social networking sites, it is important that someone in your facility keeps abreast of how technology continues to impact business – including the impact to employee online activity.

 Sources:  Blogging and the Law;  Joanne Deschenaux, SHRM.

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