Juan P. Sanchez

Blogs, Social Networking Sites and their Potential Effect on Employment

Which is more important when looking for a job: a resume with a list of achievements including a degree from a prestigious Ivy League University or the contents of a MySpace page?

About 10 million Americans now write Web log or "blogs," and there is an ever-increasing number of users of social networking sites such as MySpace, Facebook, and Friendster. Blogs address almost every conceivable topic, and are often used as personal diaries. Social networking sites are used for keeping in touch with friends, networking, alumni relations and dating.

The combination of these social and technological developments has introduced employers to the "blog-o-sphere." Internet searches on prospective and current employees are now becoming commonplace and frequently are standard practice. It is estimated that a fifth of all employers already do Internet searches on job candidates. While extensive research into prospective employees may be considered due diligence, investigation into current employee blog or social networking site activity may have detrimental legal effects and is an issue to discuss with an attorney.

The Employer Perspective
As blogs begin to replace traditional "water cooler" talk, employers wonder what their rights are with respect to these new cyber conversations, and may be surprised to find out the answer. More and more bloggers are being fired because of what they write in their blogs online. These firings are largely due to the power of the employment-at-will doctrine, which allows employers to discharge their employees without legal backlash.

Since employment relationships are generally contractual and have no express agreement as to the term of employment, the employment-at-will doctrine was developed to permit an employer to terminate an employee at any time, with or without cause, as long as the termination does not violate a contract or employment-related statute. However, the employment-at-will doctrine is not an absolute shield from liability for employers.

For example, an employer can be civilly liable for wrongful discharge if an employee is dismissed in violation of Title VII prohibitions on race, sex and age discrimination. Applied to the current blog discussion, if a blogger is fired because of an online discussion of upcoming plans to have a baby, the employer may be violating federal law and be held civilly liable. Another exception to the at-will doctrine is that employees are generally protected if their actions are a part of a concerted effort with other employees to improve work conditions, unless the statements are defamatory or insubordination. So an employer would have to determine whether the employee is airing his or her own personal grievances or whether the blog is part of a concerted effort to improve the workplace.

The Employee Perspective
Many people think that the first amendment right to free speech protects them from what they write on blogs and social networking sites. However, the first amendment was designed to protect from government restrictions of speech, not private employers. Employees seeking a wrongful discharge claim will have to prove that there is no "just cause" for termination. This is a difficult task considering that many of the work-place related blog comments violate an implied duty of loyalty to employers, thus the comments may be just cause for employee termination.

Additionally, many individuals think what they say on their own private time is their own private business. While there is a constitutional right to privacy, posting your own private thoughts on a public blog or a private blog that another person uses changes the situation. Courts have recognized that employees may have a limited expectation of privacy in the workplace. Applied to blogs and websites, an employer could be liable for how they search for or receive the information from an employee's private blog, especially when the employer does not have clear policies regarding blogs or websites. Employees, however, need to remember that just because you are blogging from your own personal home computer does not mean that the information you blog about is private and confidential. That expectation of privacy is no more protective of a blog conversation than a loud conversation at the water cooler overheard by your boss in the workplace or during happy hour at the local bar.

Conclusion
Employers have the right to act upon information learned from an employee's blog or website. In order to do so without fear of legal backlash, one recommendation for employers is to develop a blog policy that will outline the expectations of the employer for employee conduct outside of the workplace regarding blogs or social networking sites. Such expectations and employer interests may include: protecting company secrets, avoiding embarrassment to the employer, and controlling market perceptions of the employer. The employer should balance those interests against creating too restrictive of a policy and the potential of driving away talent.

Potential employees should expect employers to do an internet search on them. To protect themselves, potential and current employees should write their blogs or interact on their social networking sites as if their bosses, future bosses and grandmothers were reading everything that they write. Most importantly to current employees, if you do feel compelled to write about your employer in your blog you must be willing to accept the consequences. As a protection, you may want to include as little identifying information as possible and avoid divulging company secrets or anything that can hurt your company's reputation.

If you have any questions, concerns or want to develop a policy regarding blogs or social networking sites as they relate to employment, please contact the attorneys at MacElree Harvey.

MacElree Harvey
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