Work Blogs and Free Speech

2005-04-14
 
Weblogs, or “Blogs”are beginning to change the landscape of journalism, politics and corporate communities. Each and every person with access to the Internet can now instantly publish information on the Web. Increas-ingly, people are using Blogs to discuss matters of their job, whether it is to vent from daily work stress as a form of therapy, or to discuss the latest project they are working on. But this form of communication about daily life at the workplace has created significant impacts, both positive and negative, for employees and employers.

This newly found trend in digital media and instantaneous global publishing has already sparked many questions and conflicts and raises a critical issue: Does an employee have the right to express opinions about his or her employment (whether it is about employer, work projects or colleagues) on the Internet without the risk of being fired?


The Rise of Blogging About Jobs

Blogs originated as a sort of online diary for Internet users who wanted a way to publish their opinions and daily reflections on all topics personal and public. It was also used as a way to establish communities and connect people to issues they otherwise would not have had the opportunity to become involved with. It was a way for people to become instantly published, to have their voice heard above the din. And thanks to Matt Drudge and the Lewinsky-Clinton affair, Blogs have made their way into mainstream media, showing its power as a harbinger for change in social and political realms.

But as could have been anticipated, free speech and private employment has reached a conflict.

According to The Bloggers' Rights Blog (http://rights.journalspace.com/), companies that are purported to have fired, threatened, disciplined, fined or not hired people because of their Blog include such powerhouse companies as Starbucks, Microsoft, ESPN, Apple, and even Google.

Only a few of these incidents received attention. A sample of these include:

‧Microsoft: In October of 2003, a Microsoft employee but avid Mac user, Michael Hanscom, posted a photo on his personal Blog of Apple computers being offloaded at a Microsoft loading dock. The action cost him his job and garnered national attention.

‧Starbucks: In late 2004, Matthew Brown, a Starbucks supervisor in Toronto, sounded off about his boss on his personal Blog, from his personal computer, when a manager refused to let him go home sick and was terminated shortly thereafter.

‧Friendster.com: Friendster, the website known for breaking new ground in social networking, fired one of its employees over the content of a personal Weblog. Joyce Park, a developer for Friendster, was hired to enhance their systems and had described their old system as “pokey”. She was terminated shortly thereafter.


Turning Point Cases

Perhaps the two cases bringing this issue to the forefront are those of an American airline stewardess and a Scottish bookseller.

On November 1st, 2004, Ellen Simonetti, a stewardess for Delta Airlines, was indefinitely suspended, without pay. Simonetti, otherwise known as the “Queen of the Sky”on her personal Blog, was told her suspension was a result of "inappropriate" images posted to her personal Blog.

Ms. Simonetti claimed wrongful termination, and has since moved forward with a discrimination complaint with the US Federal Government Equal Employment Opportunity Commission (EEOC) against Delta Airlines.

Not long after, in January of 2005, Joe Gordon, a bookseller in Edinburgh, Scotland, was fired from his job for “gross misconduct” after the company determined that his personal Blog entries had brought disrepute to the bookstore chain, Waterston's. Mr. Gordon has claimed that his dismissal breached his right to free speech.

In both cases, the employees claimed that in no way were they intentionally trying to disparage their employers. Joe Gordon argued that most of the Blog's entries were merely comical, not to be taken seriously, and not enough to be fired from a job he had held for 11 years. Gordon even stated that he offered signing a contract with the company to ensure that he would never again make comments about his job on his personal Blog. But Waterston's dismissed the idea, and Gordon as well.

These cases highlight a growing concern about conflicts of interest, employment law, and free speech on personal websites. Should companies be allowed to terminate its employees for making disparaging comments about their supervisors or company? Even considering it is done on personal time, on a personal computer, and - as with both of the above cases - considered semi-fictional? These are the questions being posed in what could become yet another issue arising from the expansion of digital media and the governance-free entity that is the World Wide Web.

Lawyers weighing in on the growing issue put pressure on companies to take responsibility for their actions, if they indeed find it necessary to terminate employees based on personal Blogs. Robyn McIlroy, an employment law specialist, stated in a November 2003 issue of Workplace Law that “In a worse case scenario employers might find themselves liable for the comments made by their staff, and Blogging could also open the door to problems of defamation and harassment. This may be a good time to check employment policies to see what they say about confidentiality and the extent of allowed personal use of the Internet.”(McIlroy 2003).


Responsible Parties

Reaching a solution to this issue will require the involvement of a number of responsible parties, including the direct players-employers, employees and the country's judicial system - and indirect players - The Committee to Protect Bloggers, the Electronic Frontier Foundation, Employment Tribunals, various union entities, and the media.

Employers must clearly define their communication policies and employees will have to consider how much privacy they surrender when accepting a position. In fairness, these policies and regulations will need to be understood by both parties.

State and federal jurisdictions, along with employment tribunals and the judicial entities, involved need to set parameters for determining when and how it is acceptable for an organization to terminate based on personal Blog and Website content.

The media, as an outside influencer, will need to take responsibility for communicating the issue. Many major newspapers have recently included Blog journals in their print versions, and have embraced the Blog as an up-and-coming force that will rival mainstream media. They need to understand the importance of this issue, and report without bias.


Possible Solutions

In order to provide solutions to this potentially growing issue, all parties must consent to the adoption of policies, guidelines, and a clear understanding of what is deemed free speech and what can be considered a violation of employment policy, resulting in termination.

By creating a clear policy, similar to that of an email policy, companies can avoid costly and potentially embarrassing termination proceedings, and employees will understand exactly what is considered acceptable to publish on the Internet.

Current company employee codes of conduct are not particularly clear about Blogs or activity outside of the workplace. Companies need to accept that technology is continuing to evolve and they must adopt this new technology, embrace it, and make clear guidelines for which the technology can benefit everyone involved.

Simple policy additions can make clear what is acceptable and what is not in an employee/employer relationship, and lay the groundwork for further adaptation of Blogs as a tool to advance corporate communication.


Summary

There are more than five million Blogs in cyberspace, and the number continually grows. As the term has now reached the lexicon of many developed nations, it is time to set a clear understanding between Bloggers and their employers about what is protected under each country's human rights acts and what is protected by the company.

Organizations must be fair and judicious when determining a punishment as severe as termination over personal comments posted in an online journal. Free governments must protect free speech in order to maintain democracy, but companies must also be able to protect their brand. Both employees and employers are entitled to protection. And in order to provide this protection, it is up to the organization to clearly define its policy.

Companies have every right to read and monitor a public posting of an employee, but they should not base terminations upon it unless it clearly violates a defined rule, agreed upon by the employee and employer. The employer is allowed to regulate what a person does on company time, but what that same person does on their own time is of their own volition. If an employer has difficulty with subject matter posted on a personal site, then it is up to them to confront the employee and take steps to reach an agreement. An unanticipated termination violates the employee's rights and is therefore arguable under local laws and employee protection rights.

Companies should embrace this medium's movement and create the necessary framework to use it to their advantage. Failure to do so will leave them vulnerable to attack on personal sites, as well as susceptibility to being challenged in a court of law for actions taken without sufficient defense.
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