Still Don’t Get IT?

A Primer on Employer Liability, Prevention, and Policies Regarding E-Mail, Blogs, and other Sensitive Electronic Communications


Todd J. Shill, Esquire
Phone:      (717) 231-6665
Fax:          (717) 231-6637
 tshill@rhoads-sinon.com
Kevin M. Gold, Esquire
Phone:      (717) 237-6702
Fax:          (717) 231-6637
kgold@rhoads-sinon.com
John R. Martin, Esquire
Phone:      (717) 237-6734
Fax:          (717) 231-6698
jmartin@rhoads-sinon.com

Rhoads & Sinon LLP
One S. Market Square
12th Floor
Harrisburg, PA 17101


I. INTRODUCTION

Advancements in technology have given employers the opportunity to improve efficiency in the workplace. The Internet and e-mail, unheard of just one generation ago, are now workplace mainstays providing fast and effective means of communication and access to vital information. These advantages do, however, come at a price. In addition to concerns over the decrease in worker productivity (irony be thy name), employers are now facing potential liability for their employees’ improper use of company-provided e-mail and Internet access. And, if that weren’t enough, employers are now waging a war with the so-called “blogoshpere.” The most effective response to these threats (and other threats that will surely develop as technology continues to evolve) is to adopt and consistently enforce a formal policy that outlines the employer’s expectations with respect to the use of the Internet, e-mail, and similar electronic media.

What follows is an excerpt of an interview between Nancy Flynn, founder and Executive Director of the ePolicy Institute, and Robert Siegel, host of All Things Considered, a radio show on National Public Radio. The interview took place on August 23, 2006, and aptly summarizes some of the issues that will be discussed more fully throughout this article:

We wondered, what's typical in workplaces across the country? What's the work place policy for monitoring, filtering, blocking, or just banning Internet use? So we asked Nancy Flynn of the ePolicy Institute who surveys workplaces every year and asks precisely those questions.

A: Seventy-six percent of employers do have an e-mail policy in place, but where employers really drop the ball is when it comes to emerging technologies. For example, only 34 percent of organizations have an instant messaging policy in place. And then when you look at blogging, only 7 percent of companies have a policy in place that governs an employee's blog use.

Q: Now I assume that when we speak of a policy, one question is: can you do that at all while you're at work? Can you work on your blog from your workspace on the company's computer?

A: Well, it really depends on your organization. Seven percent have a policy that governs what employees may and may not post on their own home-based personal blogs. And by the way, Robert, just to kind of expand your vocabulary here, the official blogosphere term for being fired is “dooced” [pronounced like “juiced”]. So if you're dooced, you have been fired for blogging.

Q: Does the typical American worker who sits in front of a computer screen and I assume that's an awful lot of us, generally have the right to go surfing the Web and look at whatever site one chooses to at work?

A: What employers have, under the Federal Electronic Communications Privacy Act, is the right to monitor all employee computer activity. So employers have the legal right to monitor the websites employees are visiting, to read their e-mail messages, to read their IM chat and blog posts.

…

Employers simply don't want their employees wiling the day away online. Our 2005 survey revealed that 86 percent of employees engage at personal e-mail at work, so a lot of time could be wasted. And then any time employees are communicating with outside parties, whether they're friends of family or whomever, there is a likelihood that confidential company information that could slip out either intentionally or accidentally. And that's another big cause for concern among employers.


II. E-MAIL/INTERNET

A. Overview

1. During the past ten years, e-mail and the Internet have become integral and indispensable aspects of the typical employee’s daily routine.

a. Thanks in large part to its speed and convenience, e-mail has replaced the inter-office memorandum as the preferred method of communication in the workplace. Although some employees understand the importance of maintaining a certain level of professionalism when communicating via e-mail, the vast majority do not view e-mail in the same manner as a traditional paper memorandum. As a result, these employees are more informal when drafting their e-mails.

b. The Internet, by the same token, has revolutionized business operations to the point where it is difficult to remember how things were even accomplished before the introduction of the “Information Superhighway.”

2. Due to their ever-increasing importance in the business world, e-mail and the Internet have become an unavoidable way of life for all employers. While convenient, these tools have also given rise to a host of new employment-related problems and potential liability.

B. What are the potential threats/issues that employers face?

1. Exposure to legal liability:

a. As one might expect, an employer can be held accountable for the information transmitted by one of its employees over an employer-provided computer network. Offensive, harassing, and/or defamatory e-mails can, as a consequence, subject an employer to liability for an employee’s inappropriate communications.

b. Chevron learned this lesson the hard way. In 1995, the company settled a lawsuit filed by four female employees for $2.2 million. In their suit, the employees alleged that sexually harassing e-mails, sent through Chevron’s e-mail system, created a hostile work environment. The offending e-mail in question? “25 Reasons Why Beer is Better than Women.” Vandell v. Chevron Corp., Cal. Sup. Ct., Civ. Case No. 945302 (San Francisco 1995).

2. Confidentiality breaches:

a. Confidentiality breaches, e.g., disclosure of an employer’s trade secrets, can occur accidentally (for example, where an employee selects the wrong contact in the “To:” field when sending an e-mail). Confidentiality breaches can, unfortunately, also be the result of an employee’s intentional and premeditated actions.

b. For example, an employee of Borland International, Inc. used his employer’s e-mail system to send confidential information, including design specifications and customer sales data, to Symantec, one of Borland’s competitors in the software industry. As is typical in these situations, the employee’s disclosure of Borland’s confidential information preceded his new job offer with Symantec. Borland Int’l, Inc. v. Eubanks, Cal. Sup. Ct., Civ. Case No. 123059 (Santa Cruz 1992).

3. Lost productivity:

a. While studies vary on just how much e-mail and Internet access affect workplace productivity, the result remains the same: a marked decrease in productivity is becoming a growing cause for concern among employers.

b. One study estimates that 86% of employees use their company e-mail systems to send and receive personal, non-work related communications. Other research has indicated that nearly 40% of all employees spend up to one hour per day using their work-based e-mail to send and receive personal e-mails during work hours. Alarmingly, one survey also reveals that approximately 70% of the visits to all pornographic websites occur during regular business hours.

4. E-mail retention/retrieval:

a. E-mail has become the de facto standard for workplace communication. Conversations/transactions that had traditionally been handled over the phone are now being conducted via email. It should come as little surprise, then, that e-mail has quickly become a critical aspect of the discovery process in many different types of litigation. In fact, one study has found that 24% of all business organizations have been served with subpoenas to produce employee-generated e-mails.

b. Employers must also be mindful of the newly adopted electronic-data discovery amendments to the Federal Rules of Civil Procedure that took effect December 1, 2006.

i. The amendments recognize that electronically stored information can be difficult to retrieve and, in fact, may have been discarded as part of the routine operation of a computer system. Thus, amended Rule 26(b) makes clear that a party need not produce electronically stored information “from sources that the party identifies as not reasonably accessible because of undue burden or cost.” However, the producing party bears the burden of showing such undue burden or cost when confronted with the requesting party’s motion to compel.

ii. Amended Rule 37(f) similarly provides that a court may not impose sanctions on a party “for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” Comments to this rule explain that data may be considered not to have been lost in “good faith” if that loss follows an event triggering the duty to preserve data.

iii. Thus, prudence would dictate that, upon the receipt of a “preservation letter,” an employer should halt any routine or automatic data loss and/or removal because, after receiving a preservation letter, any such loss may not be considered to have occurred in “good faith.”

iv. Employers should also develop, audit, and monitor their record retention policies to make sure employment records, including electronically stored materials, are properly preserved.

C. Monitoring an employee’s e-mail and Internet access

1. In light of the foregoing issues, it has become essential for employers to monitor their employees’ e-mail and Internet activity. Despite arguments that such “Big Brother” oversight should be prohibited, courts have declared that private employers are entitled to monitor their employee’s e-mails and Internet activity.

2. In Smyth v. Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996), the U.S. District Court for the Eastern District of Pennsylvania, in a landmark decision, declared that, notwithstanding an employer’s repeated assurances that it would not monitor and/or intercept employee e-mails, an employee does not have a reasonable expectation of privacy in e-mails that are sent, stored, or received at work.

a. The Smyth court noted that the computer hardware and software belongs to the employer, and, consequently, so does all the information stored thereon. Moreover, the e-mails at issue in Smyth were sent voluntarily by the employee; that is, unlike a urinalysis or similar invasive procedure, the employer was not requiring nor compelling the employee to disclose any personal information.

b. Notably, the Smyth court held that an employer’s interest in preventing inappropriate and unprofessional comments (or even illegal activity) over its e-mail system far outweighed any privacy interest that an employee may have in his or her e-mail. See also United States v. Ziegler, 474 F.3d 1184 (9th Cir. 2007) (holding that an employer has a right to access an employee’s workplace data and voluntarily turn such data over to the FBI).

3. Regardless of the Smyth court’s decision, however, employers should be mindful of the statutory provisions that prohibit the interception of electronic communications:

a. The Electronic Communications Privacy Act of 1986, as amended, 18 U.S.C. § 2510, et seq., and 18 U.S.C § 2701 et seq. (“ECPA”), is an extension of the Federal Wiretapping Act and prohibits the intentional and nonconsensual interception of any electronic communication, the unauthorized access of stored communications, or the disclosure or use of any information from an illegally intercepted communication. Fortunately, the ECPA provides three exceptions that, under certain situations, permit employers to monitor their employees’ e-mails:

i. Consent exception: A violation of the ECPA (and, likewise, the Wiretapping Act) does not occur where one of the parties to the communication has given prior consent to the interception. Thus, prudence dictates that an employer should obtain written consent from employees regarding its e-mail monitoring policy. Id. § 2511(2)(d).

ii. Business extension exception: The Wiretapping Act exempts from its coverage certain types of equipment furnished and used in the ordinary course of business. For example, an employer is permitted to monitor business-related phone calls (because telephones are used in the ordinary course of business). However, once an employer understands that a call is personal, the monitoring must cease. Id. § 2510(5).

iii. Service provider exception: Although not entirely clear, this exception may apply to an employer-provided e-mail system, which in turn, would allow the employer to intercept electronic communications on that system so long as doing so is necessary to ensure the protection of the employer’s rights and/or property. Id. § 2511(2)(a)(i).

b. The Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. § 5701, et seq., contains many of the same prohibitions as its federal counterpart. Notably, the state statute contains a stricter “consent exception,” which requires all parties to a communication to consent to monitoring to avoid liability. Id. § 5704(4).

c. Due to the underdeveloped legal precedent on this issue, it is important for employers to make sure that its employees understand that they have no reasonable expectation of privacy concerning their use of the employer’s e-mail and Internet systems. This can be accomplished through the adoption and distribution of a well-defined electronic communications policy (discussed below) before the employer begins monitoring its employees’ online activities.

D. Noteworthy examples/cases

1. Doe v. XYC Corp., 887 A.2d 1156 (N.J. Super. App. Div. 2005):

a. The court held that an employer who is put on notice that an employee is using a workplace computer to access pornography (including child pornography) has a duty to investigate the employee’s activities and to take prompt action to stop any unauthorized (or unlawful) conduct, lest it result in harm to innocent third-parties.

b. The employee used his employer’s computer network to share nude and semi-nude pictures of his 10 year-old stepdaughter over the Internet. The employer was aware that this employee had, in the past, viewed pornographic websites on company time. The employer had reprimanded the employee on two occasions, but failed to take any further disciplinary action. The mother of the 10 year-old (and wife of the employee) brought a civil action against the employer. The mother claimed that the employer should be held accountable for the harm caused to her daughter and based her cause of action on § 317 of the Restatement (Second) of Torts, which concerns the duty of a master to control the conduct of its servant.

c. Because the employer was aware that the employee may have visited child pornography websites in the past, the court declared that the employer had a duty: (1) to investigate further; (2) to report the employee’s activities to the appropriate law enforcement authorities; and (3) to take effective internal action to stop those activities. Moreover, the employer had, in fact, promulgated an electronic resources policy which provided that all e-mails were subject to inspection and that an employee’s Internet access was restricted to business-related purposes only.

d. The implication of this decision is clear: once implemented, an employer must take an active role in enforcing its e-mail and Internet policies.

2. Pancenza v. IBM Corp., U.S. District Court, No. 7:04-cv-05831 (S.D.N.Y. 2004):

a. The employee was terminated for visiting an adult chat room on company time. The employee sued his employer, inter alia, on the novel theory of “Internet addiction.”

b. The employee claimed protection under the Americans with Disabilities Act. In his complaint, the employee claimed that he visited adult chat rooms in order to treat traumatic stress incurred during the Vietnam War. Specifically, he claimed that the stress caused him to become “a sex addict, and with the development of the Internet, an Internet addict.”

c. The employer moved for summary judgment, and this motion has yet to be decided. If summary judgment is denied, and the case proceeds to trial, it could have a profound effect on the extent to which employers are permitted to regulate their employees’ non-work-related Internet activity.

3. Blakey v. Continental Airlines, Inc., 751 A.2d 538 (N.J. 2000):

a. A female employee sued her employer for sexual harassment in federal court. While the federal suit was pending, however, her co-workers continued to post derogatory and insulting remarks about her on the company “Forum,” i.e. an Internet-based, electronic message board provided by the employer. After an unsuccessful attempt at amending her federal complaint to include allegations concerning these postings, the employee brought suit in state court.

b. The employer argued that it should not be held liable for these postings, as they were not made within the workplace. The New Jersey Supreme Court disagreed. According to the court: “Although the electronic bulletin board does not have a physical location within a terminal, hangar or aircraft, it may nonetheless have been so closely related to the workplace environment and beneficial to Continental that a continuation of harassment on the forum should be regarded as part of the workplace.” Blakey, 751 A.2d at 543.

E. Adopting an e-mail/Internet use policy

1. An effective e-mail/Internet policy should address the following areas:

a. Expectation of Privacy: The policy should include a clear and concise statement informing employees that: (1) they shall have no expectation of privacy with regard to anything that is placed on the employer’s computer network; (2) the computer network is owned by the employer; and (3) a password is no indication of personal privacy. Moreover, it should be expressly stated in the policy that access to private web-based e-mail accounts (e.g., Hotmail or GMail) from workplace computers is similarly considered to be non-private activity.

b. Code of Conduct: The policy should make clear what type of conduct is expressly prohibited on the employer’s computer systems (via e-mail or otherwise). Such prohibited conduct would necessarily include, among other things: (1) threatening and/or harassing comments; (2) using obscene or vulgar language; (3) displaying (e.g., on a computer’s desktop wallpaper and/or screensaver) or sending offensive or derogatory images or comments that would violate the employer’s discrimination and/or harassment policies; (4) creating or transmitting “junk” e-mail; and (5) transmitting confidential information to anyone outside the company or in an unauthorized manner.

c. E-mail Retention: The policy should clearly indicate that when an e-mail is “deleted,” it is not actually removed from the system, but rather resides in the computer’s unallocated memory. Moreover, the policy should include a retention policy so as to comply with the electronic-data discovery amendments to the Federal Rules of Civil Procedure (e.g., halting all automatic data loss upon receipt of a preservation letter).

d. Monitoring: Employers must be open with employees regarding the monitoring/oversight of e-mail activity and Internet access. Obtaining an employee’s consent (e.g., written acknowledgment) is a vital first step in this process. Moreover, employers should send out periodic reminders to their employees that anything created, sent, received, or stored on their computer systems is subject to review at any time without prior notice.

e. Training, Awareness, and Enforcement: Employers should ensure that any e-mail/Internet policy is effectively disseminated and enforced.

2. Indeed, the effective dissemination and enforcement of an e-mail/Internet use policy will go a long way in protecting employers from potential liability:

a. Schwenn v. Anheuser-Busch, Inc., 1998 U.S. Dist. LEXIS 5027 (N.D.N.Y. April 7, 1998) (sexual harassment claim was dismissed where the employer responded to the employee’s complaint by issuing a warning to all employees about e-mail abuse).

b. Mieritz v. Hartford Fire Ins. Co., 2000 U.S. Dist. LEXIS 4965 (N.D. Tex. April 15, 2000) (religious discrimination claim was dismissed where the employer had a computer policy prohibiting “solicitation and proselytizing”).

c. Sherrod v. AIG Healthcare Mgmt. Servs., 2000 U.S. Dist. LEXIS 1626 (N.D. Tex. Feb. 4, 2000) (wrongful termination claim was dismissed where the employer had a policy prohibiting the downloading and storing of pornographic images on company computers).


III. BLOGGING

A. Overview

Blog • noun [short for Weblog] (1999): a website that contains an online personal journal with reflections, comments, and often hyperlinks provided by the writer. (Merriam-Webster’s 2004 word of the year)

1. By now, it is safe to assume that most (if not all) people are aware of the blogging phenomenon (indeed, the vast majority of those lawyers reading this outline probably have a blog of their own, or are at least aware of colleagues that do). Currently, over 41 million blogs exist on the Internet, and the “blogosphere” has been doubling in size approximately every six months since 2003. On average, about 50,000 blogs are created every hour.

2. Blogs are available on almost any topic and can range from discrediting a high-profile news story on 60 Minutes (remember Dan Rather?) to simply discussing what someone had for lunch. Even the legal profession is getting in on the action; two humorous law-related blogs are worth mentioning:

a. The Anonymous Lawyer: http://anonymouslawyer.blogspot.com/. “Stories from the trenches, by a fictional hiring partner at a large law firm in a major city.”
(warning: may hit too close to home for some)

b. That’s What She Said: http://www.hrheroblogs.com/. “A blog by Julie Elgar about the popular television series ‘the office.’” (evaluates and assesses the legal claims present in each episode)

3. Nothing is off-limits in a blog, including malicious and/or damaging statements made by an employee about his or her employer. As a result, employers should understandably be concerned due to the potential for a blog to reach a global audience at virtually no cost to the blogger. As one state supreme court remarked, anyone with a telephone line can “become a town crier with a voice that resonates farther than it could from any soapbox … speakers can bypass mainstream media to speak directly to an audience larger and more diverse than any the Framers could have imagined.” Doe v. Cahill, 884 A.2d 451, 455 (Del. 2005).

B. What are the potential threats/issues that employers face?

1. Many of the potential threats/issues discussed in the previous section are equally applicable to the issue of employee blogging.

2. The most obvious problem is, of course, reduced worker productivity if these blogs are being created on company time (and with company resources). Other problems, similar to those previously discussed, include:

a. Leaking confidential information and/or trade secrets (either intentionally or inadvertently);

b. Posting defamatory, offensive, or inappropriate comments that may subject an employer to liability; and

c. Postings that tend to have a disparaging effect on a company’s products, services, goodwill, or overall image (referred to as “cyber-smearing”).

C. Tracking down the anonymous blogger

1. The first hurdle many employers face when trying to stop or shut down a damaging blog is identifying the person responsible for its creation. As one might expect, anti-employer bloggers, more often than not, choose to blog anonymously.

2. The most commonly used mechanism for uncovering the identity of an anonymous blogger involves filing a “John Doe” lawsuit and then serving a subpoena on the Internet Service Provider that hosts the blog in order to obtain documents needed to ascertain the blogger’s true identity.

3. Lately, however, courts are beginning to struggle with this issue and have demonstrated an increasing unwillingness to enforce subpoenas designed to uncover the identity of an anonymous blogger:

a. In California, an appellate court reversed the lower court’s denial of a protective order and stated that that bloggers, acting as “confidential informants” for particular websites, enjoy the same level of constitutional protection as that afforded to the confidential informants of traditional journalists. Specifically, the court declared that operators of public websites “are reporters, editors, or publishers entitled to the protections of the conditional privilege arising from the state and federal guarantees of a free press. If their activities and social function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial.” O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1468 (2006) (footnote omitted).

b. On the other side of the country, the Delaware Supreme Court recently delineated the exacting standards under which an Internet Service Provider would be required to reveal the identity of an anonymous blogger. The court decided that before a defamation plaintiff may compel the revelation of an anonymous blogger’s identity, the defamation claim must first survive a summary judgment analysis. Doe v. Cahill, 884 A.2d 451, 460 (Del. 2005).

D. Discipline

Dooced • adj. (2002): getting fired for blog-related activity; usually by making disparaging comments about one’s employer. Coined by the website www.dooce.com. Ex: I was dooced when someone sent my boss a link to my blog.

1. Upon discovering inappropriate blogging activity, an employer should first determine whether the blog was created and/or maintained during company time with the use of company resources. If an employee posts a blog when he or she should be working, the employer will most likely be entitled to discipline that employee. Posting a blog that could subject an employer to liability (e.g., via defamatory or harassing comments) will also provide ample grounds for employee discipline.

2. Many employees feel that their blogs are protected by the seemingly ubiquitous “freedom of speech.” However, the First Amendment only limits the government’s restriction of free speech; it generally does not restrict a private employer’s ability to discipline or terminate an employee. However, while discipline may be a lawful response to inappropriate employee blogging (even if done on personal time) due to the “at-will” nature of most employment relationships, employers should be mindful that there are other laws protecting employee speech in certain circumstances:

a. The National Labor Relations Act, 29 U.S.C. § 151 et seq. (“NLRA”), provides that an employee may not be disciplined for discussing wages, hours, or other terms and conditions of employment. Id. §§ 157, 158. As a result, a blog that encourages other employees to lodge complaints or that discusses certain employment policies, such as compensation, may be protected under the NLRA. Notably, these provisions of the NLRA protect both unionized and non-unionized employees.

b. An employee’s blogging activity may also be protected under the various “whistleblower” statutes, i.e. Section 806 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. 1514A, and Pennsylvania’s Whistleblower Law, 43 P.S. § 1421, et seq. It should be noted that Pennsylvania’s Whistleblower Law only applies to “public bodies.” See 43 P.S. § 1422. However, private entities will also be subject to its provisions by accepting any amount of public funding. See Riggio v. Burns, 711 A.2d 497, 500 (Pa. Super. 1998) (stating that “it is not unreasonable for the legislature to condition the receipt of state funds on the acceptance of the responsibilities embodied in the Whistleblower Law”).

c. Employers should also be mindful of any state law which prohibits discrimination against employees for the “lawful use of lawful products.” See, e.g., N.C. Gen. Stat. § 95-28(2)(b). While these laws are primarily targeted at preventing discrimination against smokers, a creative employee may contend that blogging is akin to the use of a “lawful product,” and thus, he or she may not be unjustly terminated for his or her lawful use of the blog. (In any event, employers must carefully weigh the need to discipline a blogger against the negative public perception that may be created by taking adverse employment action against an employee for otherwise law-abiding conduct occurring outside of the work environment.)

d. An employee can also argue that his or her termination violates public policy, and thus, constitutes an exception to the traditional standard of at-will employment. To establish that the termination violates public policy, an employee may allege, for example, that the blog (for which he or she was “dooced”) discusses the employer’s violation of certain statutory safety codes. Public policy can also be violated if an employee is terminated for political reasons. See e.g., Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3d Cir. 1983) (applying Pennsylvania law) (holding that “an important public policy is in fact implicated wherever the power to hire and fire is utilized to dictate the terms of employee political activities”).

E. Noteworthy examples/cases

1. Simonetti v. Delta Airlines, Inc., U.S. District Court, No. 1:05-cv-2321 (N.D. Ga. 2005):

a. A former Delta Airlines flight attendant filed a lawsuit alleging discrimination on the basis of sex after the airline fired her for posting provocative pictures of herself in a Delta Airlines uniform on her blog, “Diary of a Flight Attendant” (upon her termination, the blog was aptly renamed “Diary of a Fired Flight Attendant”).

b. The flight attendant alleged that similarly situated male flight attendants had posted comparable pictures of themselves wearing Delta Airlines uniforms without any adverse consequences. The case is still pending, but has been stayed in light of Delta Airlines’ Chapter 11 bankruptcy filing.

c. Even though no resolution has yet to be reached, the “Diary of a Fired Flight Attendant” blog, located at http://www.queenofsky. net, is one of the most well known examples of an employee being fired for blog-related activity. Since her termination, the flight attendant’s blog has been visited by nearly three million people. She also has a book for sale: “Diary of a Dysfunctional Flight Attendant: The Queen of Sky Blog.”

2. Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), cert. denied, 537 U.S. 1193 (2003):

a. An airline pilot sued his employer under the Railway Labor Act, 45 U.S.C. 151, et seq. (“RLA”) (containing provisions similar to the NLRA), alleging that his employer unlawfully retaliated against him upon discovering his blog posts, which were critical of the employer’s management.

b. The court denied the employer’s motion for summary judgment because there were triable issues of fact as to whether the airline pilot’s actions, i.e. criticizing the management personnel, were protected under the RLA.

F. Adopting a blogging policy

1. Employers should adopt a policy that prohibits employees from blogging during work hours. Moreover, employers should specifically addresses private blogging.

2. An effective blogging policy will include the following instructions to employees (sample policy obtained from http://forrester. typepad.com/):

a. Explain that the views expressed in the blog are yours alone and do not necessarily represent the views of your employer.

b. Respect the company’s confidential and proprietary information.

c. Be sure to ask your manager or supervisor if you have questions about what is and is not an appropriate topic for your blog.

d. Be respectful to the company, other employees, customers, and competitors.

e. Understand when the company requests that certain topics not be discussed on your blog for confidentiality or legal compliance reasons.

f. Ensure that your blogging activities do not interfere with your work commitments.

3. Of course, much like the e-mail/Internet policy discussed in the previous section, employers should ensure that its blogging policy is effectively disseminated and consistently enforced, and that all employees undergo some form of training on the topic.