Responding to Criticism on the Web
Employers seeking to respond to workers' negative comments posted on the Internet should be careful not to violate the bloggers' rights under state and federal laws. And with the number of bloggers increasing daily, employers should consider adopting the sample social-networking policy in this month's Legal Clinic.
By Keisha-Ann G. Gray
In today's society, Internet communication is essential for running a successful business. However, when used by employees as a means to comment on their workplaces and colleagues, Internet communication can cause employers serious harm.
Unfortunately, the law has been slow to evolve in addressing the many workplace challenges associated with social networking -- thereby leaving HR professionals unclear about how best to address issues related to employees who blog. Hopefully, this month's column will provide some guidance.
Question: What options does an employer have if an employee makes negative comments about the company or criticizes the company via a blog, Web page, etc.?
Answer: Employers have long dealt with problems associated with employees voicing criticism to others. Clearly an employee's criticisms can damage a company's competitive advantage, reputation, recruitment and retention efforts.
What some of us may not so quickly appreciate, however, is the potential for employees who are critical of their employers to cause additional harm by either intentionally or unintentionally disclosing confidential employer information or trade secrets through their negative comments.
Add to this, the fact that, when disseminated over the Internet via a blog or chat room, negative employee comments can be exponentially damaging because they can be viewed by millions of people the instant they are posted, and are difficult, if not impossible, to retract.
Given this reality, it is unfortunate that the law in this area is not yet well-developed. Nevertheless, it is critical that employers refrain from rushing to action when faced with negative comments posted by employees on blogs.
This is because, depending on the issues addressed in the blogs, and where, how and when the comments were uploaded, certain state and federal laws may protect employees from adverse employment action in response to the blogs.
Taking action without properly evaluating important practical and legal issues will leave employers vulnerable to claims of discrimination, wrongful discharge and retaliation brought by affected employees under state statutes, labor relations laws and whistleblower protection laws.
Protections under State Statutes
Statutes in states such as New York, Colorado and North Dakota prohibit employers from taking adverse employment actions against employees for engaging in lawful off-duty activities such as blogging.
New York - N.Y. Lab. Law § 201-d(2)(c): Employers in New York cannot take any adverse action against an employee on account of that employee's engagement in legal recreational activities if the employee engages in the activities outside of working hours, off of the employer's premises, without using the employer's property. N.Y. Lab. Law § 201-d(2)(c).
Recreational activities are defined under New York law as "any lawful - leisure time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, included but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies, and similar material." § 201-d(1)(2).
The law, however, does not protect "activity which ... creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest" and New York courts do not recognize employee dating as a recreational activity. N.Y. Lab. Law § 201-d(3)(a); State v. Wal-Mart Stores, Inc., 207 A.D. 2d 150, 621 N.Y.S. 2d 158 (1995). Therefore, enacting a well-phrased anti-fraternization workplace policy will not violate this statute.
Colorado - Colo. Rev. Stat. § 24-34-402.5: In Colorado, it is an unfair employment practice to fire employees for engaging in lawful activities that take place off the employer's premises during nonworking hours unless (a) the activities engaged in relate to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or (b) the activities engaged in create a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest. Colo. Rev. Stat. § 24-34-402.5(1)(a)-(b).
At least one Colorado court has found that one of the bona fide occupational requirements encompassed within the scope of the Colorado statute is an implied duty of loyalty, with regard to public communications, that employees owe to their employers. See Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458 (1997) (upholding an employer's termination of a baggage handler who was fired after writing a strongly worded letter to the Denver Post criticizing his employer for replacing laid-off full-time employees with hourly contract workers).
In finding for the employer, the court opined that the legislature did not intend to permit employees to use the statute as a sword to "strike indiscriminate public blows against the business reputation of their employer[s]." Id. at 1463. Therefore, in Colorado, blogging activity that criticizes the employer or otherwise portrays the employer in a negative light could violate the employee's duty of loyalty inherent in the statute.
North Dakota - N.D. Cent. Code § 14-02.4-03: North Dakota extends the broadest protection to employees by protecting, without exception, all lawful off-duty activity. In North Dakota, employers may not take adverse action against an employee or applicant on account of the employee's or applicant's "participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer." N.D. Cent. Code § 14-02.4-03.
Protection under Federal Law
The National Labor Relations Act -- 29 U.S.C. § 157: Many nonunion employers are under the mistaken impression that if their employees are not represented by a labor organization, they need not be concerned with the NLRA.
Virtually all of the rights afforded to union members by the NLRA also extend to nonunion workers, including, for example, the rights to strike and picket.
While employers are permitted to lay out policies as to what employees may blog about in relation to work, employers cannot fashion policies that have the effect of chilling an employee's exercise of his or her Section 7 rights, nor can employers discipline employees for blogging about "wages, hours, or terms or conditions of employment," such as the company's pay scale or vacation policy. See Timekeeping Sys., Inc., 323 N.L.R.B. 244 (1997).
Additionally, outright bans on blogging about the employer will likely be viewed as an unreasonable impediment to self-organization in violation of the NLRA. See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), cert. denied, 537 U.S. 1193 (2003) (finding that blogging that involved an employee attacking his company's management and president online may trigger "concerted activity" provisions under federal labor laws.).
Possible Protection under Whistleblower Laws
If the employee's negative comments concern the employee's reasonably held belief that the company is engaging in illegal activity, the employee may also be protected under whistleblower protection laws.
Federal law protects employees of publicly traded companies from employer reprisal for reporting what the employee reasonably believes to be corporate fraud to federal regulatory and law enforcement agencies, Congress, supervisors, and internal corporate investigators. SeeSarbanes Oxley Act, 18 U.S.C. § 1514A(a)(1).
It is unclear, however, whether this protection extends to include employees who make such reports indirectly via Internet chat rooms or blogs instead of directly to law enforcement, supervisors, investigators, etc. It is likely, however, that a savvy plaintiff's lawyer may be able to craft a viable argument for this expansive interpretation.
Nonetheless, some states have enacted private sector whistleblower protection acts prohibiting employers from taking adverse employment actions against employees for publicizing what the employee believes to be the company's illegal activities. See, e.g., New Jersey Conscientious Employee Protection Act, N.J. Stat. Ann. § 34:19-1 et seq.; Delaware Whistleblowers Protection Act, 19 Del. Code Ann. § 1701 et seq.
Take-away for Employers
Because many factors must be considered when faced with employees who post negative comments about their employers on the Internet, choosing the right course of action is quite difficult.
Before taking any adverse action, however, employers should carefully consider whether the blogger's actions may be legally protected. Rash employer responses can result in claims of unjust termination, discrimination, retaliation, and/or violations of state or federal laws, thereby compounding the damage caused by the blogger's posting and, in many cases, causing more damage to the employer than caused by the original posting in the first place.
That said, this does not mean that employers must sit idly by while employees launch cyber-attacks against their companies. Employers should take preventative steps by devising comprehensive, legally compliant policies (see below) that place employees on notice of what work-related matters are inappropriate to blog about (no trade secrets, defamatory/harassing comments regarding co-workers, etc.), and that blogging should not be done through company property or on company time.
For those employers that have already been hit with damaging statements posted on the Internet by employees, partnering with a reputable public relations expert and legal counsel to craft and disseminate an appropriate response is an option.
The response should be professional, squarely address the issues raised, and provide contact information for a knowledgeable company spokesperson well equipped to address questions related to the issues raised by the blogger's statements.
Often, damage can be reduced significantly or even avoided altogether by simply disseminating accurate information on the issue that is the subject of the negative comments, and by providing an avenue within the company for the public and employees to ask questions and voice concerns.
Question: I need a social-networking policy. Can you offer some advice on what such a policy should include and provide a sample policy?
Answer: Guidelines for the appropriate use of social-networking tools should be an integral part of every employer's electronic communications policy. We already know from the discussion above that employee blogging can result in the dissemination of proprietary information and result in negative press.
However, if left unchecked, blogging and other forms of social networking can result in the following additional problems:
* Reduced employee productivity;
* Damage to company property (i.e., exposure to computer viruses);
* U.S. Securities and Exchange Commission violations (an employee may violate the "quiet period" before an initial public offering by blogging about it);
* Loss of potential patents (if an employee blogger describes a product in development over a year before a patent application is made, the employer may lose patent rights);
* Legal liability for both the employer and the employee for harassment, defamation and hostile work environment claims.
With these considerations in mind, enacting and enforcing a comprehensive policy that provides guidelines for the appropriate usage of social media in the workplace is a requirement for all conscientious employers. Once enacted, such a policy gives employers the best opportunity to prevent problems and, if and when problems occur, defend themselves against wrongful discharge claims from employees who violate the policy.
A well crafted and effective social-networking policy should do the following:
* Tell employees to exercise good judgment and common sense in all electronic communications;
* Stress the potential reach and impact of information sent over the Internet;
* Ensure that employees understand that they have no reasonable expectation of privacy regarding electronic communications in the workplace or when using workplace equipment such as cell phones, computers and wireless hand-held devices;
* Notify employees that they must not use electronic communications in any manner that is unlawful or contrary to the company's interest;
* Inform employees that they cannot use electronic communications to violate the company's anti-discrimination policy;
* Advise employees that all electronic communications are covered under applicable confidentiality or nondisclosure agreements;
* Require employees to sign consent forms regarding workplace and work equipment monitoring;
* Specify the consequences that will follow if someone violates the company's policy; and
* Apply the policy equally to all employees within the company.
Here is a sample, comprehensive social-networking/blogging policy.
XYZ acknowledges the growing popularity of Weblogs or "blogs," personal Web sites, and other public Internet communications as a means for sharing experiences, ideas, and opinions with the public. However, because of the legal and other ramifications that may stem from publicly posting material, we have adopted the following policy regarding public Internet communications both during working and non-working time.
Public Internet communications. This policy applies to all Internet communications that may be accessed by the public, including but not limited to blogs, personal Web sites, and discussion forums.
Blogging not permitted on company time. All blogging and other Internet activity during work hours and/or using company equipment or connections is subject to the company Internet and computer use policies. Unless specifically authorized by a company official, blogging and other public Internet communications are not permitted during an employee's working time. During non-working time, the following requirements must be met:
Disclaimer required. Any reference to XYZ, XYZ employees or customers publicly posted on the Internet must contain a disclaimer indicating that the thoughts and opinions expressed belong to the author and do not necessarily reflect those of the company.
Posting of certain protected information prohibited. Employees may not disclose trade secrets, confidential business information (e.g., business plans, strategies, customer information, etc.) or other proprietary information belonging to XYZ or its customers to individuals outside the company, including through blogs and other Internet postings. In addition, employees must not disclose certain company financial information in violation of securities laws or regulations.
Employees wishing to post blogs or other public Internet communications should be aware that copyright and trademark law may restrict the use and copying of material belonging to XYZ and others. Employees may not violate the intellectual property or privacy rights of others.
Other prohibited activities. XYZ's equal employment opportunity policy and its policies against sexual or other harassment apply fully to the use of the Internet, including blogging. If conduct is in violation of our policies and/or is seen as compromising the interest of the company, the company may request that you cease the violative commentary or remove the offensive posting, and may take appropriate disciplinary action.
Other guidelines. Employees are reminded that they are personally responsible for material they post on a blog or Web site. In addition, employees wishing to maintain blogs or Web sites should be aware that they could be held responsible for content posted by third parties, such as comments. Employees are encouraged to monitor and/or restrict such third-party content on any Web sites or blogs they maintain.
Violations of policy. Failure to follow this policy may result in disciplinary action, including possible termination. All blogs and other public Internet communications are subject to the other policies contained in this handbook, including but not limited to the Internet and Computer use policies, equal employment opportunity policy and the policies against sexual or other harassment.
Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer Rose in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.
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November 2, 2009 Copyright 2009© LRP Publications
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