It’s 2008, do you know where your employees blog? Employers who fail to stay current with the popularity of blogging or who do not have a solid blogging policy in their Employee Handbook put themselves at a great disadvantage. Read on for some key points on the “whys” and the “hows” of a valid and comprehensive blogging policy.

Today’s Wall Street Journal features an article on blogger Heather Armstrong. Heather is most famous for being fired for writing about her co-workers on her blog, www.dooce.com. In fact, a blogger is “dooced” when he or she is terminated for blog comments.

Today, Heather is a full-time blogger writing mostly about her family life. Her blog is incredibly popular, receiving over four million hits each month. Her husband even quit his job to work on selling advertising for the blog.

The article causes one to think about just what risks employee run blogs pose for the workplace and how problems can be avoided.

Breach of confidentiality. A blogger may reveal confidential information about your company, including trade secrets. For example, a blogger complaining about a project assignment may, without thinking about the implications, reveal details of a new product that’s under development. Or an accounting department blogger complaining about having to work an all-nighter on a big stock deal may inadvertently be revealing insider information.

Defamation. The freewheeling culture of blogging may encourage people to say things online that could defame their employer, management, co-workers, customers, or competitors.

Harassing or otherwise offensive content. Imagine, for example, a situation in which an employee with a disability is being accommodated with a modified work schedule in compliance with the Americans with Disabilities Act. The employer has properly responded to inquiries about the arrangement by saying only that the company is handling the individual’s situation in accordance with federal law. A blogger complains that that “slacker” is being allowed to come and go as he pleases while the rest of the department suffers for it and speculates about the person’s possible medical condition.

Or imagine a blogger spreading completely speculative rumors that a recently promoted colleague got the job by performing sexual favors for the boss. Conversation that shouldn’t go unaddressed in the workplace can be extremely difficult to curb when it occurs anonymously in cyberspace.

Inappropriate content. Such content can range from postings that are disrespectful to your company to those that are completely unrelated to employment but may still reflect on you.

It’s important that you cover blogging in your Internet or electronic communications policy. The policy should prohibit disparaging the company or its employees, customers, or competitors either by name or implication. As with your other policies, it should be communicated to employees when they’re hired and periodically thereafter. It also should caution them that they must avoid creating the impression that the views expressed on a blog are anything more than personal opinions.

Following are some points you may want to cover in your blogging policy:
1. Persons who broadcast information regarding the company or its employees, customers, or competitors must make clear that views expressed in the blog are theirs alone and don’t represent the views of their employer.

2. In blogging, as in any other communication, employees must respect the company’s confidentiality and proprietary information. Employees should be reminded of the confidentiality provision in the employee handbook and, if they’re required to sign confidentiality agreements, of their commitments under those agreements.

3. Employees who have questions about the blogging guidelines should direct their questions to a designated company official who will serve as the authority on the policy and on helping them understand how it applies to their situations.

4. As with all communications, persons communicating through blogs are expected to treat the company and it employees, customers, and competitors with respect.

5. The company may ask that certain topics not be disclosed for confidentiality or legal compliance reasons, and employees are expected to honor those requests.

6. Employees are responsible for ensuring that their blogging activity doesn’t interfere with their work commitments, and they should be familiar with the company’s other policies regarding Internet use, which also apply to blogs.
The benefit of a blogging policy is that it puts your employees on notice of the standards of conduct that apply to blog postings. If you then learn that an employee has violated the policy, you can address the situation through the normal disciplinary process. Before imposing discipline, however, remember that state laws differ and certain types of communications may be protected under state and federal law. You might consider consulting counsel before taking any disciplinary action.

The topic of off-duty conduct has been unavoidable recently.

First there was the wave of large companies who stopped hiring smokers or charged higher health care premiums to employees. Sure enough, this trend resulted in a lawsuit challenging the legality of making employment decisions based on what candidates and employees do outside of work. The conditional-employee sued Scotts when his conditional job offer was revoked when he tested positive for nicotine. (Scotts doesn’t hire smokers).

Next came a wave of talk about GINA, the Genetic Information Nondiscrimination Act, proposed to prohibit employers from basing employment decisions based on genetic information. It would also put limits on the amount of detail employer about an employee’s family medical history and other private data.

And don’t forget the internet! Employees who post on blogs, in chat rooms, or on social network sites like MySpace and FaceBook have a lot to stay. What are employers to do when their employees (current or former) are giving away trade secrets or other confidential information? And what about the bitter employee with lots of complaining to do and an unlimited audience ready to listen.

What’s next? Well, if you ask Governor Spitzer, he might have his own opinionson this topic. His “off-duty conduct” has resulted in his resignation and a great deal of commentary for morning news shows and late night comics alike. Some may argue that the difference between smoking and engaging prostitutes is legality. Smoking, at least for now, is a legal activity. You can pick up a pack of cigarettes at any corner convenience store. Not so with prostitutes. They can be picked up, true, but it is unlawful to do so. Yet, both activities will land you in a similar position–unemployed.

So where should employers draw the line? That’s a question for another day. Some critics claim that weight will be the “new tobacco.” Will employers, who face rapidly increasing health care costs, next turn to overweight employees and make them an offer they cannot refuse–lose weight or lose your job. Or will the same objective be attempted through higher health care premiums?

And will they charge by the pound?

Barry M. Willoughby, our Section Chair, commented on this issue last week in the Wilmington News Journal.

The American Management Association (AMA) and The ePolicy Institute have recently released the results of their survey on Electronic Monitoring & Surveillance. The survey is of great interest to employers, who face more and more issues in this area.

Some highlights from the survey:

E-Mail and Internet-Related Terminations:

The 28% of employers who have terminated employees for e-mail misuse did so for the following reasons: violation of any company policy (64%); inappropriate or offensive language (62%); excessive personal use (26%); breach of confidentiality rules (22%); other (12%).

The 30% of bosses who have fired workers for Internet misuse cite the following reasons: viewing, downloading, or uploading inappropriate/offensive content (84%); violation of any company policy (48%); excessive personal use (34%); other (9%).

Internet, E-Mail, Blogs and Social Networking:

Employers are primarily concerned about inappropriate Web surfing, with 66% monitoring Internet connections. Fully
65% of companies use software to block connections to inappropriate websites—a 27% increase since 2001 when AMA/ePolicy Institute first surveyed electronic monitoring and surveillance policies and procedures. Employers who block access to the Web are concerned about employees visiting adult sites with sexual, romantic, or pornographic content (96%); game sites (61%); social networking sites (50%); entertainment sites (40%); shopping/auction sites (27%); and sports sites (21%). In addition, companies use URL blocks to stop employees from visiting external blogs (18%).

Computer monitoring takes many forms, with 45% of employers tracking content, keystrokes, and time spent at the keyboard. Another 43% store and review computer files. In addition, 12% monitor the blogosphere to see what is being written about the company, and another 10% monitor social networking sites.

Of the 43% of companies that monitor e-mail, 73% use technology tools to automatically monitor e-mail and 40% assign an individual to manually read and review e-mail.

Telephone and Voice Mail:

Six percent of employers have fired employees for misuse or private use of office phones. Fully 45% monitor time spent and numbers called, and another 16% record phone conversations. An additional 9% monitor employees’ voicemail messages. Most employers notify employees of phone (84%) and voicemail (73%) monitoring.

Video Surveillance:

Almost half (48%) of the companies surveyed use video monitoring to counter theft, violence and sabotage. Only 7% use video surveillance to track employees’ on-the-job performance. Most employers notify employees of anti-theft video surveillance (78%) and performance-related video monitoring (89%).

Global Satellite Positioning and Emerging Surveillance Technology:

Employers who use Assisted Global Positioning or Global Positioning Systems satellite technology are in the minority, with only 8% using GPS to track company vehicles; 3% using GPS to monitor cell phones; and fewer than 1% using GPS to monitor employee ID/Smartcards. The majority (52%) of companies employ Smartcard technology to control physical security and access to buildings and data centers. Trailing far behind is the use of technology that enables fingerprint scans (2%), facial recognition (0.4%) and iris scans (0.4%).