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Employee’s Blogging: Protected Activity?
Think Twice Before Doocing an Employee!
By Carrie Hoffman
Doocing: is the term used to fire someone based upon information in their "blog.” Blogger Heather B. Armstrong coined the phrase in 2002, after she was fired from her Web design job for writing about work and colleagues on her blog, Dooce.com.
Several other high profile bloggers have been terminated for reasons associated with their personal blogs, thrusting the issue into the media and exemplifying the need for employers to be cognizant of blogging and when doocing is and is not protected activity. Delta Airlines has a lawsuit pending against it brought by a flight attendant who was ‘dooced’ for risqué photos taken of her while wearing her uniform that she posted on her personal blog . She brought a claim for disparate treatment, alleging male employees where not treated similarly.
While there is little case law to date regarding this issue, blogging is become more and more popular as a sort of “public” journal for individuals to discuss their daily lives, including issues at work, about work, about co-workers, etc. Often times these posts are negative, and utilized by the employee as an outlet to vent frustrations.
Unfortunately, this outlet is not discrete, but rather is a public forum. So what can an employer do when an employee is posting disparaging remarks about work, co-workers, supervisors, etc?
Blogs are not generally protected under First Amendment free speech rights, which don’t apply to private companies. However, there may be some instances where employee blogging might be protected activity.
A common misunderstanding about the National Labor Relations Act (“NLRA”) is that it protects only unionized employees and employees who are in the process of organizing a union. This is not the case: the NLRA also protects non-union employees who engage in "concerted activity" for "mutual aid or protection." Meaning that it might protect certain employees’ blogging activities.
When an individual employee’s blog reflects, or is intended to inspire, group activity, it might be protected. The NLRA does not protect mere talk or mere griping about personal issues, but it does protect employees who complain jointly, or one employee who complains on behalf of other employees about issues affecting them all.
The substance of the complaints also matters. If it relates to the terms and conditions of employment -- wages, hours, working conditions, benefits, etc., it might be protected under the NLRA.
However, there is a defense under the NRLA, if the speech or activity rises to the level of abusive or maliciously false.
Employers should consider adding a handbook policy against employee blogging. Such a policy will be dependant upon the particular needs of the employer, but should consider prohibiting the publication of either employer or client proprietary information, banning negative remarks about the company, management, and co-workers, and prohibiting employee’s use of company time or equipment to post personal blogs.
Carrie Hoffman is a partner at Gardere and a member of the Retail Industry Team where her practice focuses on complex commercial litigation, principally in the areas of intellectual property, computer technology, antitrust and class actions.
Please email Carrie if you have questions or would like more information about this article.
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