Blogs: Inappropriate at work, a protected right for employees

Employers in most states are allowed to discharge an employee for a good reason, bad reason or no reason at all, as long as it is not an illegal reason. One of the prohibited reasons for firing an employee is for engaging in some activity protected by law.

A "blog," short for "Web log," is an online personal journal kept by a writer. According to a November 2005 poll by the Dallas chapter of the International Association of Business Communicators, which conducts a monthly online Quick Poll on its Web site, 34% of respondents admitted to blogging at work or on a topic related to their workplace. As a new platform for communicating, it is also becoming more controversial, since anyone can create a blog for public viewing.

Risks employers face from employee blogging include: 1) possible disclosure of confidential information; 2) potential securities laws violations for disclosure of non-public information; 3) possible liability for torts committed by employees while blogging, including defamation of customers or competitors, invasion of privacy, etc.; 4) possible liability for harassment or discrimination claims; and/or 5) possible intellectual property infringement.

To protect against these risks, employers should tell employees several things.

If an employee/blogger is not using his or her real name, obtaining a court subpoena to learn the identity of an anonymous user has First Amendment implications. Courts recognize a right to speak anonymously on the Internet and have applied various balancing tests in determining whether the First Amendment prevents discovery of an anonymous user's identity.

Some of the more interesting cases involving bloggers have emanated from the healthcare arena. It is possible that the employee is engaging in protected activity in blogging under the NLRA, Title VII, whistleblower statutes, etc.

This column is written for informational purposes only and should not be construed as legal advice.

Barry Senterfitt is a partner in the insurance industry practice of Akin Gump Strauss Hauer & Feld LLP in the firm's Austin, Texas, office.