D.C. BAR 2020 CONFERENCE – DISCOVER MORE AT https://www.dcbarconference.org
 

Washington Lawyer

Social Blunders

From Washington Lawyer, December 2008

By Lily M. Garcia

maskIf you are planning to publish blogs, post outrageous photographs, or rant about how much you hate your job, these sensible rules may just save you from yourself.

Perhaps you are among the few people whose personal and professional lives have not been influenced in some way by blogs or social networking sites. You get your news from official sources, thank you very much, and you have not received a solitary invitation from a friend or business associate seeking to “connect” through a networking service such as MySpace or Facebook. If you find yourself challenged to think of a single person who can make this claim, you are not alone.

A review of available data supports an intuitive sense of participation in blogs and social networking sites. In 2006, for instance, the Pew Internet & American Life Project estimated that 8 percent of adult Internet users in the United States maintain blogs. And, according to Technorati.com, a Web site that tracks blogs and related statistics, there are more than 63 million blogs, with 175,000-plus added each day. Technorati.com also reports that bloggers “update their blogs regularly to the tune of over 1.6 million posts per day.”

As far as social networking sites go, the two biggest are MySpace, which boasts 73 million users in the United States alone, and Facebook, with 36 million U.S. users. According to statistics posted by Facebook, it is the fourth-most trafficked site in the world and the most trafficked social media site in the world. Facebook was launched in February 2004; MySpace in November 2003. So all of this growth has occurred in the space of fewer than five years.

Not surprisingly, people are not confining their blogging and social networking activities strictly to their home computers. Nor are users keeping quiet about what vexes them most at work. A 2006 survey of the Employment Law Alliance (ELA), a global network of lawyers who assist employers involved in disputes, reported that 16 percent of the employees who maintain blogs have posted information that could be considered critical of their clients, coworkers, customers, employers, or supervisors. In fact, in a 2006 article titled “Bloggers in the Workplace: An Employer’s Rights, Risks and Responsibilities,” published by the WorldatWork Journal, attorneys Arlene Brens and Troy Prince reported that a search on Technorati.com for blogs using the phrase “work sucks” returned 48,500 separate entries. Despite these findings, only about 15 percent of employers have policies on work-related blogging, according to the ELA.

People are blogging and using social networking sites in record numbers, and it is clear that they are using these vehicles not only to find jobs and exchange baby photographs, but also to rant about politics, reminisce about drunken escapades, dish about coworkers, and trash bad bosses. Online communities can and do serve a useful purpose. But the problem is that so many people fail to appreciate how little, if any, privacy these postings enjoy, and how directly they can impact an existing or potential employment relationship.

Emotionally, blogging and using social networking sites feel similar to having an intimate conversation with close friends. But nothing could be farther from the truth, which some find out the hard way.

Employers seeking guidance on the legal issues presented by employee and applicant blogging and social networking will find a small, but helpful, body of research. Employers are told to maintain and consistently enforce clear policies that eliminate misplaced employee expectations of privacy and protect the organization against legal liability. Keeping in mind the protections of state laws regarding legal off-duty conduct, employers are told to act swiftly to correct employee misconduct related to blogging and social networking just as they would employee conduct arising in other venues. As in so many aspects of employment law, the key employer directives are diligence and prudence.

But what does this all mean, in practical terms, for an employee or applicant of otherwise unimpeachable performance who seeks only to connect with friends online? What harm could there possibly be in posting messages, photographs, and other personal information to blogs and social networking sites either during work hours or after hours? As it turns out, quite a bit.

Through the presentation of statistics, anecdotes, and the professional experience of an employment lawyer and human resource professional, we will outline a set of guiding principles for employees and job seekers who blog or use social networking activities. If you follow these rules as faithfully as you can, the chances are good that your MySpace profile will not cost you your job.

While some of these rules might strike the reader as common sense or elementary, you might be surprised to learn just how many people regularly violate them and suffer as a consequence.

Rule 1: Play It Safe
Avoid visiting social networking sites at work unless you have a good reason. If you frequently use your employer’s computer to chat with friends on MySpace, you run the risk of your behavior landing you in hot water.

Even if you are blogging after hours on your personal computer at home, there are a myriad of considerations that you should keep in mind. Chief among them is an admonition to use common sense. Refrain at all times from posting photographs and text on the Internet that you would not want your grandmother to see. This would include comments about drinking or illegal activities; off-color humor; profanity; sexual innuendo; and photographs depicting binge drinking, nudity, or other inappropriate conduct. Beware of relying upon the privacy settings of your social networking site to protect your postings from public distribution. Once uploaded, you never know where your comments and photographs might end up.

This rule could not be more clearly illustrated than by the story of former Sheriff’s deputy Brian Quinn, who was fired in June 2006 from the Marion County Police Department in Florida for “conduct unbecoming an officer.” The concern was information Quinn had posted on his MySpace profile, including a photograph of himself in uniform along with comments about swimming in the nude, binge drinking, and women’s breasts. Because MySpace is a popular destination for child predators, Quinn’s MySpace profile originally was brought to the attention of detectives in the Marion Youth Internet Crimes Unit. Ed Dean, the Marion County Sheriff, reportedly commented, “Even if [the postings] were in jest, even if he didn’t even mean it, it still is not representative of the sheriff’s office.”

Another example involving law enforcement centers on Jacob Hansen, who was charged with vehicular homicide in 2007. A relative of the victim, who was browsing Hansen’s Facebook profile for signs of remorse, tipped off the Omaha City, Nebraska, police to an unrelated crime. Photographs posted by Hansen on his profile depicted multiple stolen street signs captioned, “I steal signs when I’m drunk.” As a result, Hansen also was charged with misdemeanor possession of stolen property. Marty Conboy, the Omaha City prosecutor, reportedly quipped, “It certainly makes police work a lot easier when you can find evidence posted by the suspect.” Hansen eventually was sentenced to three-to-five years in prison.

If you must engage in questionable conduct, why boast about it online? Assuming he had not been found out by the Omaha City police, one is left to wonder how many employers might have passed on Hansen’s application based on his self-professed weakness for drunken street sign theft.

Rule 2: Become Familiar With Your Employer’s Policies
There is a very good chance your employer has implemented an extensive list of policies that relate to your use of workplace technology and networks. Your employer might even be among those who have developed policies specifically concerning blogging and the use of social networking sites, on or off the job. Among the policies that you should be aware of and consult are: n Policies defining what is and is not appropriate for employees to post online if they do not remain anonymous, including required disclaimers

  • Policies prohibiting the use of your office computer for personal business
  • Policies allowing for limited personal use of your office computer, but admonishing that excessive personal use can lead to discipline
  • Policies prohibiting the use of your employer’s technology for an inappropriate purpose, such as defamation, extortion, or harassment
  • Policies concerning harassment and discrimination
  • Policies relating to the code of business conduct as well as employee loyalty, conflicts of interest, and the safeguarding of confidential employer information
  • Policies, including the code of business conduct, that define certain off-duty conduct for which the employer reserves the right to discipline. (Yes, there are limits to the legal off-duty conduct for which you can be disciplined.)

Keep in mind also that there are terms and conditions of use associated with third-party providers of networking services. If your employer has outsourced the administration of its network, you should make sure you are familiar with that vendor’s policies as well.

Rule 3: Do Not Post Anything That Could Be a Violation of Employer Policies
Before you post anything on your blog or social networking page, take a moment to ask yourself whether what you are about to say or display could constitute a violation of employer policies. The major concerns, which are discussed along with Rule 2, include the code of business conduct, nondisclosure policy, technology or network access policy, and harassment and discrimination policies.

If you are on the market for a job, beware that a prospective employer is going to think twice about hiring you if your online postings demonstrate you have little respect for employer policies. Compliance with employer policies includes communicating about and with other employees in a manner that is dignified and respectful. As you communicate with coworkers through blogs and social networking sites, remember that those interactions are not divorced from your “live” office relationships. What’s more, conduct that occurs in an off-site, virtual forum can, and often does, become evidence that is considered in an employer’s internal investigation of discrimination, sexual harassment, and other inappropriate conduct. Denise Kay, president of the human resource consulting firm Employment Practices Solutions, Inc., recalls a sexual harassment investigation in which the MySpace correspondence between a supervisor and his subordinate was considered in determining whether harassment had occurred. The two had added each other as friends in their MySpace accounts and exchanged messages substantiating after-hours social activity and sexual advances.

In other cases, Rule 3 compliance can raise a moral dilemma. Jeff Crouse, a teacher at Bishop Gorman High School, a Catholic school in Las Vegas, was fired in May 2006 after announcing that he is gay on his MySpace page, writing that he was looking for “straight-acting single men.” Since the Catholic Church teaches that “homosexual behavior” is a sin, the Las Vegas Diocese fired Crouse for “maintaining, by word or action, a position contrary to the ordinary teaching of the Catholic Church,” which is grounds for termination under the Bishop Gorman teacher contract.

Rule 4: Do Not Disclose Confidential Information or Trade Secrets, or Use Company Logos on Your Social Networking Page or Blog
This is an important corollary to Rules 2 and 6. Unless it is very new or small, your employer likely has policies in place requiring that employees maintain the confidentiality of sensitive business information, such as trade secrets, and warning against the misuse of the employer’s logo or brand. You probably agreed to these policies when you were hired, and you might have renewed your acknowledgement every year since. So it would be difficult for you to claim, for example, that you were not aware you could be disciplined for posting a Facebook entry informing your friends about a new product the public relations team has yet to announce. When in doubt, check with your manager first and obtain written confirmation (e-mail will do) that the subject you would like to discuss is not off-limits.

Aside from being a violation of your company’s policies, using your employer’s logo or brand on your blog or social networking site is a surefire way of identifying the place where you work. And that is not always the greatest idea, as discussed later.

Jeremy Wright lost his job at Manitoba Health Services for revealing confidential information about the integrity of his employer’s computer network. While his employer’s server was down for three hours due to a virus on May 11, 2004, Wright wrote the following entry on his blog, www.ensight.org:

Getting to surf the web for 3 hours while being paid: Priceless. Getting to blog for 3 hours while being paid: Priceless. Sitting around doing nothing for 3 hours while being paid: Priceless. Installing Windows 2000 Server on a P2 300: Bloody Freaking Priceless.

The company fired Wright almost a year later and one week after he had submitted his resignation on the basis that blogging about vulnerabilities within the company’s system was an ethical violation.

Similarly, Michael Hanscom was shown the door at Microsoft when he snidely suggested in a blog posting on Michaelhanscom.com that the company wanted Apple computers. In October 2003 Hanscom was a temporary worker in the Microsoft copy shop when he snapped a photo of Apple Macintosh G5 computers arriving at a Microsoft loading dock. He posted the photo on his blog, titling the entry “Even Microsoft wants G5s” and commenting, “It looks like somebody over in Microsoft land is getting some new toys…” Microsoft spokesperson Stacy Drake McCredy told the media that, “We do recognize that Web blogging is a legitimate form of communication. A number of Microsoft employees have Web logs and we respect and support their decision to do so, as long as they abide by our confidentiality agreements.”[1] Hanscom later expressed on his blog, “Basically, it all boils down to making sure that you know just what your employer would or would not be comfortable with you mentioning on your weblog—and if there’s any doubt, don’t mention it. I didn’t, and it got me canned. You shouldn’t let the same thing happen to you.”

Rule 5: Know Your Legal Rights
Employers generally enjoy a wide berth when it comes to hiring decisions and disciplinary determinations. But that does not mean you are without legal rights if your blog or social networking site cost you your job. The laws under which you could seek protection and redress include state and federal equal employment opportunity laws, the National Labor Relations Act (NLRA), whistleblower statutes, and the Electronic Communications Privacy Act (ECPA).[2] This is illustrated by the following widely reported example of an employee whose blog led to her termination.

In January 2004 Ellen Simonetti, a flight attendant for Delta Air Lines, started a blog titled “Diary of a Flight Attendant” (Queenofsky.net). Together with mostly personal commentary, Simonetti posted photographs of herself posing on an airplane in her Delta Air Lines uniform. She did not identify herself as a Delta Air Lines employee, but she did state her support for an Association of Flight Attendants’ union organizing campaign for which she previously had advocated. When Delta learned of the Web site, it first suspended and then fired Simonetti, purportedly for inappropriate photos in a Delta uniform. “I was outspoken about the rights of certain employee groups, and I am theorizing that is part of the reason that they fired me,” Simonetti has said of the issue. “After I was fired, I found all of these male employees online in their uniforms. We printed those out and sent them to Delta. … It just really struck me as a double standard, and I got really mad.”

Simonetti says Delta did not respond to her request to see the policy she had violated, that they did not have a policy on blogging in place at the time of her termination and, as far as she knows, they still do not. Simonetti’s advice for employees who blog is, “Just that they should find out whether their employer has a blogging policy, and if they do, abide by it. If they don’t [have a policy], you might even bring it up to your employer before you start a blog and find out what their policy is on it. And if not, just be anonymous and limit your blog to your friends.”

On September 7, 2005, Simonetti filed a complaint in the United States District Court for the Northern District of Georgia under Title VII of the Civil Rights Act (which prohibits discrimination) and the Railway Labor Act, claiming sex discrimination and illegal interference with her rights to organize and bargain collectively. Specifically, she alleged that male employees who also posted pictures of themselves wearing Delta uniforms on the Internet and, in fact, identifying themselves as Delta employees, were not similarly disciplined when Delta learned of their postings. Simonetti further alleged that Delta’s decision to terminate her employment was a deliberate attempt to interfere with her right to organize and bargain collectively under the Railway Labor Act.

Due to the Delta Air Lines’ bankruptcy, Simonetti’s case has been stayed and her claims will be heard by a bankruptcy judge in New York. Her experience provides a helpful window on the types of claims that might be asserted by an employee who is disciplined because of blog or social networking site content. Even if you post material to social networking sites and blogs while on duty, there are legal limitations on the enforcement of employer disciplinary provisions.

‘Just Cause’
If the terms of your employment are covered by a collective-bargaining agreement, then you cannot be legally fired except for “just cause” as defined by the agreement, and you can only be subject to other types of discipline under the circumstances described in the agreement.

Whistleblowing
If the conduct that you engage in on your blog or social networking site concerns unethical or illegal corporate conduct, you might enjoy some protection from discipline under the retaliation provisions of many employment laws and federal and state whistleblower protection statutes.

Let’s suppose you use your MySpace account to send a message to your regional manager regarding working conditions at your facility. The message is a meandering rant that includes irrelevant information about the social lives of your teammates, unsubstantiated rumors about romantic relationships, personal opinions about the competency of your supervisor to do her job, speculation that your supervisor is embezzling money, confidential information regarding salaries in your department, and gripes regarding the types of jokes that coworkers are making about you. You accessed MySpace to send the message during work hours, which is a direct violation of your workplace technology policy, and your disclosure of confidential salary information might implicate the code of business conduct. Additionally, much of the content of you message appears to be a malicious attempt to defame and discredit your coworkers and supervisor. Nevertheless, to the extent that your message contains what could be characterized as legitimate complaints under workplace harassment or discrimination policies, you would enjoy relative immunity from discipline. If you were subjected to discipline, you might be able to make a retaliation claim under Title VII. To the extent that you were reporting corporate wrongdoing to a supervisor as defined under the Sarbanes-Oxley Act, you would also be protected from retaliation for your actions.

Concerted Activity
Under Section 7 of the NLRA, employees, whether or not they work in a union environment, have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” It is considered an unfair labor practice for an employer to discipline an employee who exercises these rights or to otherwise interfere with the employee’s exercise of these rights. These protections extend to subjects that have a “direct nexus” to “a specifically identified employment concern of the participating employees.”

The Supreme Court and the National Labor Relations Board (NLRB) have clarified that protected concerted activity includes an employee’s advocacy regarding the conditions of his or her employment (disciplinary practices, safety, wages, and the like), as well as political activity “in support of employees of employers other than their own.” To enjoy these protections, employees cannot engage in concerted activities during work hours or in work areas. And employees may nevertheless be legally disciplined if their activities are found to be overly disruptive and the employer is applying its policies in a nondiscriminatory manner.

The NLRB has found that employees do not have a statutory right to use employer equipment and e-mail systems for concerted activity. However, employers may not discriminatorily restrict employees from using their technology for these activities if they are allowing other analogous types of use. For example, an employer with a strict nonsolicitation policy may not discipline an employee who uses its e-mail system for concerted activity, while at the same time allowing another employee to solicit clients for her husband’s financial planning business.

So, arguably, the NLRA would protect your blog entries regarding how much “work sucks” if what you say could reasonably be characterized as advocacy regarding your working conditions or those of other employees. Nevertheless, beware of using your blog or social networking site to transmit messages that merely are intended to disparage your employer and are not in the nature of constructive calls for change.

For example, in Endicott Interconnect Technologies, Inc. v. NLRB[3], the United States Court of Appeals for the District of Columbia Circuit overruled an NLRB decision and held that a technology company employee’s public comments regarding the technical capacity of the company following a wave of layoffs were “unquestionably detrimentally disloyal” and, therefore, lost the protection of Section 7 of the NLRA. The employee in the Endicott case had, among other things, told a reporter the company’s layoff decisions “left a void in the critical knowledge base” of the business.

Free Speech
If you are a public sector employee, things you say on your blog or social networking site might be protected as free speech. The key question is whether your comments are made within the course of your official duties as a public servant or “as a citizen upon matters of public concern.”[4] If the comments are made within your official duties, they do not enjoy First Amendment protection and you can be disciplined. If, however, your comments are made “as a citizen upon matters of public concern,” then a court will balance your interest in making the comments against the public employer’s interest in efficient operation.

Legal Off-Duty Conduct
The photographs and commentary on your blog or social networking site might not always depict you in the most flattering light, or they might reveal information about your personal habits and activities that some employers would find objectionable. Employers can and do make personnel decisions based upon what they learn online. When an applicant’s MySpace page reveals his or her proclivity for public drunkenness and lewd behavior, an employer might legitimately question that person’s judgment. Individual rights advocates, however, raised equally legitimate concerns about the use of off-duty conduct unrelated to the job in deciding the lot of an employee or applicant.

This is why a number of states have passed antidiscrimination laws restricting the use of legal off-duty conduct in employment decisions. Yet, the exceptions to these laws often eviscerate the protections. Common exceptions include conduct that interferes with job performance, conduct that creates a conflict of interest, when refraining from the conduct is a bona fide occupational qualification, or when the employer is a nonprofit whose mission it is to discourage particular conduct. Within the range of dangerous, disruptive, lewd, or moronic off-duty behaviors that would give reasonable employers pause, it usually is easy to find an exception to the protections for off-duty conduct. When it comes to conduct that contravenes the mission of your organization, the analysis is even simpler. For example, the American Cancer Society prohibits smoking on or off premises because such would be contrary to the mission of the organization. So if you post photographs on Facebook depicting you smoking, and the American Cancer Society finds out, it probably could legally refuse to hire you, even in a state with off-duty conduct protections.

Meanwhile, in states without legal off-duty conduct protections, an employer might legally fire or refuse to hire you if your social networking page includes photographs or other information depicting inappropriate behavior, as long as such are a violation of the organization’s policies and those policies have been fairly and consistently enforced.

Consider the story of Kevin Colvin who was an intern at Boston’s Anglo Irish Bank when on October 31, 2007, he was forced to miss a day of work because, “Something came up at home and [he] had to go to New York [that] morning for the next couple of days.” Except that everything was fine back home, as Colvin’s manager discovered the next day when he checked the employee’s Facebook profile. There was Colvin in a photograph he had posted from the previous night’s Halloween party, complete with sparkly green fairy costume, wand, and a can of beer. Colvin’s manager replied to the e-mail dated October 31, attaching the photo of Colvin in drag, and blind copying the entire office, as follows: “Thanks for letting us know—hope everything is ok in New York. (cool wand).” Needless to say, Colvin was fired for lying.

The Problem of Pretext
Had Colvin been fired, say, based on a presumption about his sexual orientation, he could have challenged the decision under Massachusetts’ fair employment practices laws. Put plainly, if your employer or potential employer exhibits illegal bias based upon something you have posted on your blog or social networking site, you would have grounds to complain. If your MySpace page or your blog identifies you as being in a protected class (e.g., age, ethnicity, race, gender, or sexual orientation), and your employer or potential employer views your postings prior to making an employment decision adverse to you, then, theoretically, you could argue that the employer had broken the law.

For example, you are an employee who blogs about the challenges of living with bipolar disorder, or an applicant who posts photographs in which you can be identified as an ethnic minority. However, as is often the case with pretext, such bias would be difficult to prove.

Unauthorized Access
All of this is not to suggest you are entirely without protection against an employer who would seek to plunder your password-protected treasure trove of private musings. Under the Electronic Communications Privacy Act, an employer may not intentionally intercept your electronic, oral, or wire communications, or disclose such information to others. Employers also may not access stored electronic communications without your permission. The key terms are “interception” and “unauthorized access.” For example, the Ninth Circuit has held that it is illegal under the Stored Communications Act (Title II of the ECPA) for an employer to access an employee’s password- protected Web site to read discussions about the employer and its union policies.[5] Even if you access your password-protected Internet accounts from your employer’s computer, that does not mean you have thereby given your employer access rights. In fact, the Western District of Wisconsin has gone so far as to hold that an employer’s gaining access to an employee’s password-protected personal accounts could constitute actionable invasion of privacy.[6]

Remember, however, that the key terms are “interception” and “unauthorized access.” The chances are good that your employer has an electronic communications or a technology policy in place, which you may have signed every year, and to which you agree every time you log on to the network, that destroys any expectation that your communications will be private. Your employer probably has reserved the right, for example, to read anything you display on your computer screen. And many employers also keep track of employee communications through keystroke monitoring software and other technology.

Public Policy
Finally, under the laws of many states, an employee who has lost his or her job because of the content of a blog or social networking site might be able to state a claim for wrongful termination in violation of public policy, even when other legal options are foreclosed.

Rule 6: Do Not Defame Your Employer
While you may enjoy the protections of the NLRA for concerted activity you engage in through your blog or social networking site, you will lose that protection and be subject to discipline if you are raising workplace issues in a way that is disloyal and defamatory rather than as a sincere effort to effect change. If you honestly are posting entries to your blog or social networking site with the goal of positive workplace change, it is wisest to maintain a dignified and constructive tone and refrain from revealing information that could implicate your duty of loyalty.

It is difficult to anticipate the economic impact you could cause on your employer’s business if the public becomes aware of your negative comments. And, if these comments are untrue, you could become the target of a defamation lawsuit. Although there are some variations among jurisdictions, the basic elements of a defamation claim are: (1) a written or spoken defamatory statement, (2) published to third parties, (3) which the person making the statement knew or should have known was false.

Understandably, many employees discussing workplace issues online are not trying to start a union organizing campaign; they merely are seeking a forum in which to vent their frustrations. If you fall within the latter category, it is best not to post, or allow friends to post, any information that could identify your workplace. Even if you keep your employer’s identity anonymous, you should refrain from making statements that could conceivably be untrue.

In September 2004 Joyce Park learned this lesson the hard way. Park, who also was known by the screen name “Troutgirl,” was fired from her Web developer job with the social networking site Friendster. As part of her duties, Park had helped upgrade Friendster’s programming language. The offense that got her fired was a blog entry in which she discussed the technical efforts to relieve congestion and improve the performance of the site, referring to Friendster’s earlier site performance as “pokey.” The popular technology discussion board Slashdot (Slashdot.org) picked up on the comment, prompting a follow-up story in the online technology magazine InfoWorld. In turn, Friendster fired Park for disparaging its business.

Rule 7: Do Not Defame Your Coworkers
It is common courtesy not to speak ill of your coworkers, including managers, in a public forum such as the Internet, let alone to do so in a manner that would allow a reader to identify who these people are. Before you write anything about your coworkers on your blog or social networking site, ask yourself first whether you would be angered, embarrassed, or irritated if someone were to make similar public statements about you.

If you are legitimately engaged in concerted activity under Section 7 of the NLRA, it might be reasonable and appropriate to discuss your grievances regarding management practices. Even then, be certain your criticism pertains to the practice and does not devolve into an ad hominem attack.

Beware of collateral damage to workplace relationships. As these anecdotes have demonstrated, the things you say online do not always remain within your circle of friends or your intended audience. If you say something that piques the curiosity of other bloggers and journalists, the information can spread quickly, ruining reputations and costing jobs. Unlike a business, an individual might not have adequate means to sue you for the damage you cause. Regardless, do you really want to risk becoming responsible for derailing someone’s career?

This principle is perhaps best articulated in the Yahoo! blogging policy, which was one of the very first. Among the “Best Practice Guidelines” espoused in “Yahoo! Personal Blog Guidelines: 1.0,” employees who blog are encouraged to:

Be thoughtful and accurate in [their] posts, and be respectful of how other Yahoos may be affected. All Yahoo! employees can be viewed (correctly or incorrectly) as representative of the company, which can add significance to [their] public reflections on the organization (whether [they] intend to or not).

Web designer Heather Armstrong learned this lesson too late. She kept a blog at www.Dooce.com on which she blogged negatively about her employer. Armstrong did not identify her employer or coworkers by name. However, the information Armstrong provided apparently was enough to prompt a coworker to send an anonymous e-mail to her employer, which fired her based upon its zero-tolerance policy for “negativity.” Thus was coined the term dooced to refer to blog-related firings. Armstrong never challenged her termination, and she has continued to blog, claiming she is able to support her family solely with advertisement revenue from her site. On her blog, Armstrong has written:

I started this website in February 2001. A year later I was fired from my job for this website because I had written stories that included people in my workplace. My advice to you is BE YE NOT SO STUPID. Never write about work on the internet [sic] unless your boss knows and sanctions the fact that YOU ARE WRITING ABOUT WORK ON THE INTERNET. If you are the boss, however, you should be aware that when you order Prada online and then talk about it out loud that you are making it very hard for those around you to take you seriously.

Touché. And managers could be fired for misusing their employer’s technology resources as well.

Most would readily agree that using a public forum such as the Internet to poke fun at the performance of your company, disparage coworkers, or brag about how little work you have to keep you busy is in poor taste and displays questionable judgment. Some might make assumptions about the work ethic of such employees and find it hard to sympathize when they get fired. It would be an oversimplification, however, to say that the types of cases discussed here involve cheerfully underperforming workers finally getting what they deserve. Anecdotally, most of the people whose stories were featured were not on probation or otherwise at risk of being terminated; they expressed remorse about their lapse in judgment and regret that their employer was not willing to give them a second chance.

It would appear that these cases are the product of the rapid proliferation of blogging and social networking, combined with cognitive dissonance about the visibility of information online and slowness on the part of employers to develop and implement relevant policies. Until there is more widespread understanding about the implications of sharing information online, and until employers take a more active role in defining what is permissible, people will continue to lose their jobs over the content of blogs and social networking sites. It would be best for everyone if employers make their policies clearer, and if employees and applicants become better educated about the significance of their online behavior.

Until then, follow these sensible rules of social networking and blogging. You might find yourself making the decision to take your comments “off-line” more often, but you also will avoid alienating your coworkers, bringing liability and ridicule upon yourself, and, perhaps most importantly, ending up unemployed.

Lily M. Garcia is director of training for Employment Practices Solutions, Inc., and she writes on workplace issues for washingtonpost.com and The Washington Post.

Notes
[1] http://www.msnbc.msn.com/id/3341689
[2] See Electronic Communications Privacy Act, 18 U.S.C. § 2510, et seq. (2005).
[3] See Endicott Interconnect Technologies, Inc. v. NLRB, 453 F.3d 532 (D.C. Cir. 2006).
[4] See Garcetti v. Ceballos, 547 U.S. 410 (2006).
[5] See Konop v. Hawaiian Airlines, Inc. 302 F.3d 868 (9th Cir. 2002), cert. denied, 2003 U.S. LEXIS 1186.
[6] See Fischer v. Mt. Olive Lutheran Church, 207 F.Supp.2d 914 (W.D. Wis. 2002) (e-mails stored in personal “hotmail” account protected by SCA even though account was accessed through employer’s computer).