Do you have a personal blog or a MySpace or Facebook page? If so, be careful what you write: If your employer finds it and doesn't like your posts, you could be fired. There are some limits to an employer's ability to discipline or fire employees for what they say online, however. This article explains those limits and gives some practical tips for avoiding trouble at work when you blog.
You Can't Rely on the First Amendment
Many people assume that the right to free speech, part of the First Amendment of the U.S. Constitution, protects their right to say whatever they want, in a blog post or otherwise. They've got it wrong, however. Like the rest of the federal Constitution, the First Amendment protects all of us from the government, not from private companies. While the First Amendment prohibits the government from telling us what we can say (within reason), it doesn't apply to private employers.
Legal Protections for Bloggers
Luckily, there are other laws that provide some limits on an employer's right to fire you for what you blog and post about. Whether you are protected from termination or discipline depends mostly on what you write about. The same rules that prohibit employers from retaliating against employees for raising particular types of concerns also protect employees who blog or post about those issues. And, state laws protecting what employees do on their own time may also come into play.
Here are some of the laws that may protect an employee who keeps a private blog:
Off-duty conduct laws. A number of states have passed laws that prohibit employers from disciplining or firing employees for activities they pursue off-site, on their own time.
Although some of these laws were originally intended to protect smokers from discrimination -- they tend to include language protecting employees who "use legal products" while off duty -- others protect any employee conduct, as long as it doesn't break the law. These laws could provide legal protection for an employee who keeps a personal blog or posts on a social networking site.
Protections for political views. A handful of states protect employees from discrimination based on their political views or affiliation. In these states, disciplining an employee for posts that endorse a particular candidate or cause could be illegal.
Protections for "whistlebloggers." An employee who raises concerns about safety hazards or illegal activity at work may be protected as a whistleblower (or a "whistleblogger," if the concerns are raised in a blog). Whistleblower protections recognize that the public good is served by employees who are willing to come forward with these types of complaints -- and that very few employees will do so if they can be fired for it.
Prohibitions on retaliation. A variety of employment laws protect employees from retaliation for claiming that their rights have been violated. If your post complains of workplace discrimination, harassment, violation of the Family and Medical Leave Act, wage and hour violations, or other legal transgressions, you may be protected from disciplinary action.
Concerted activity protections. The National Labor Relations Act and similar state laws protect employees' rights to communicate with each other about the terms and conditions of employment, and to join together, in a union or otherwise, to bring concerns about such issues to their employer. If you are fired for blogging or posting about low wages, poor benefits, or long work hours, for example, you could have a claim against your employer. The National Labor Relations Board has been very active lately in bringing unfair labor practices claims against employers who fire or discipline employees based on posts that are critical of working conditions.
Staying Out of Trouble
If you don't fit into one of the categories described above -- or you'd rather avoid trouble in the first place, rather than testing the limits of these legal theories -- you'll have to be careful about what you post. Here are some tips that can help you stay out of trouble.
Don't criticize, make fun of, or make harassing comments about coworkers. Even if the people you're writing about are in on the joke, you can bet that your employer isn't going to get it.
Just ask Heather Armstrong, the first person to get "dooced" (fired for blogging, so named after her own blog). Her posts about annoying habits of coworkers and company management, as well as what she was really doing at home when she was supposed to be working, eventually got her fired.
Another example: The Automobile Club of Southern California eventually fired 27 workers for postings on MySpace about -- among other things -- the weight and sexual orientation of coworkers.
Don't post anything that could be construed as racist, sexist, or otherwise bigoted. Again, even if you intend your comments as a joke, this kind of stuff just isn't funny. And your employer may even find itself under public pressure to get rid of you.
Matt Donegan, a reporter and editor, was fired by The Dover Post over his MySpace blog, including an entry that complained about his African American neighbors partying late into the night and speculated whether similar circumstances might have led to the assassination of Martin Luther King, Jr. Donegan said the post was intended as a joke. His employer was not LOL.
Don't reveal company trade secrets, confidential information, or other things the company would rather not make public. Look at what happened to Michael Hansom, a temp who was fired by Microsoft after he posted photos of Macintosh computers arriving at Microsoft, with the tag line: "Even Microsoft wants G5s." Or "Troutgirl," a Friendster engineer who was fired over blog posts, including one about an overhaul of the company's site architecture.
Before using your blog to vent about workplace problems, try to solve them through the usual channels. Sure, you may be legally protected if you're whistleblogging or exposing illegal activity, but do you want to lose your job and have to fight about it in court?
One gutsy whistleblower, Michael De Kort, blew the whistle on Lockheed Martin in a YouTube video. De Kort's video exposed possible design flaws in work the company was doing to refurbish patrol boats for the Coast Guard. That De Kort's complaints were later confirmed in a government report and he won an award for his ethics in trying to protect the public didn't save him from getting fired.
Blog anonymously or restrict viewers to your blog. The Electronic Freedom Foundation, which supports the rights of bloggers, among other things, has a number of suggestions for making sure your employer doesn't identify you as the author of your blog, including:
- blogging anonymously (you'll have to be careful not to reveal any identifying details about yourself or your job)
- restricting who can view your blog, and
- excluding your blog from major search engines.
Learn more at the Foundation's website, www.eff.org (select "Bloggers' Rights" from the homepage).
To learn more about your right to privacy on the job, including free speech rights, get Your Rights in the Workplace, by Barbara Kate Repa (Nolo).