tweet tweet youre fired

Summer 2009 Employment & Labor Relations Law

“Comments Heard In, Around, and Consequent to the Company Christmas Party Last Evening”

“The Proper Way to Hate a Job”“Reasons the Asian Database Adminis- trator is so F#&*ing Annoying”

These blog entries and others led to the termination of graphic designer Heather Armstrong, for violating her company’s zero-tolerance policy for “negativity” in her anonymous blogging on dooce.com. Her discharge was the genesis of the term “dooced,” referring to termination for inappropriate online communications related to employment.

“Save us White Boy!”“What I wouldn’t give to draw a little Hitler mustache on the chief negotiator.”

These blog entries caused another employee’s reassignment and a subse-quent lawsuit. The employee claimed that the employer’s reassigning of her was retaliation for protected First Amendment activity. And “gripe sites,” such as the former f---edcompany.com even encourage employees to complain about workplaces.

Employers are increasingly using blogs and other online social networking tools to further public relations, marketing, and recruitment of employees. Although blogging may have benefits for employers, these stories show why more employers are beginning to take note of the legal risks of employee blogging.

Emerging Web 2.0 facilities are user-created, interactive, and user-generated. The very name reflects the more interac-tive and collaborative aspects of this new generation of technological advances that are vastly different from the more static Web 1.0 technology. These interactive

and collaborative advances, however, may lead to increased potential liability for employers. Legal risks include pos-sible claims of libel and defamation, trade disparagement, copyright infringement, harassment, discrimination, retaliation, disclosure of proprietary information, and damage to an employer’s goodwill. The number of lawsuits filed against bloggers has increased exponentially in recent years. Bloggers may even take out an insurance policy—called BlogInsure— to guard against potential liability.1

Employers must balance the risk of liability for an employee’s online conduct with the employee’s privacy. Lawyers should advise employers to draft policies that address the online conduct of em-ployees. Such precautions are even more important if the employer maintains its own blog or Internet forum, or encourages its employees to engage in online social networking. And as with all policies, uni-form enforcement is critical. This article outlines some of the legal issues presented by blogging and online social networking activities, and suggests policies to mini-mize the risk of liability.

The Current Landscape of Blogs and Online Social NetworksAn online social network is an Internet community of people who construct bio-graphical profiles and create lists of other people in the community with whom they share a connection.2 Other people may then view the profile and connections. Besides MySpace and Facebook, other networking sites such as LinkedIn, Plaxo, and Flickr are quickly gaining popular-ity. Social networks can even be used in virtual communities such as Second Life.

The term “blog” has earned a place in Merriam Webster’s Online Diction-ary, which defines it as “a Web site that contains an online personal journal with reflections, comments, and often hy-perlinks provided by the writer.”3 More advanced technology includes “micro-blogging.” Twitter is the best example of

this platform.4 Twitter utilizes peer-to-peer rather than broadcast communication. By using simple message service (SMS) protocol, a user can send updates of up to 140 characters to members of peer groups.5 Arguably, the peer-to-peer method would make these messages (known as “tweets” on the Twitter service) more similar to private email and voicemail messages; if such messages are not transmitted on an employer’s system, they are not generally thought to be of concern to employers.

However, the micro-blog platform, which facilitates rapid texting via cell phones, results in near-instant public dissemina-tion. The news of the Hudson River plane landing and the recent earthquake in China were publicly known before reported by the media because of initial Twitter messages.

Large organizations use Twitter to educate the public about their products and services. Examples are Cisco Systems, Jet Blue, H&R Block, Sun Microsystems, and Whole Foods Market.6 Over 3,000 people subscribe to Whole Foods’ tweets about promotions, new items, and product recalls. Whole Foods uses Twitter for pro-motional activities. For example, in the “Tweet of the Day” program, the chosen tweet may be awarded a $25 Whole Foods gift card.7 Scottsdale, Arizona’s police de-partment uses Twitter to inform the public of crime, road closures, and other safety

Tweet, Tweet, You’re FiredBy Patty A. Wise

The number of lawsuits filed against bloggers has increased exponentially in recent years.

Patty A. Wise is a partner with Cooper and Walinski in Toledo, Ohio, as well as a visiting professor of employment law at the University of Toledo College of Law.

7 Published in Employment & Labor Relations Law, Volume 7, Number 4, Summer 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Employment & Labor Relations Law Summer 2009

issues.8 Also, the Los Angeles Fire Depart-ment uses Twitter to send out wildfire updates.9 This second-by-second broad-casting, to exponentially increasing groups of receivers, can result in exactly the kind of public dissemination that would cause an employer legitimate concern.

Issues may arise even if employees do not belong to an online social network or use Twitter. Internet users often leave comments on message boards. Many sites, such as cars.com, allow consumers to post reviews.10 Such dissemination of opinions also occurs on sites concerning hotels and many other products and services. Wikis—the first cousin of the blog—pose

additional problems. The most well-known wiki is the online encyclopedia Wikipedia, which allows Internet users to edit an entry’s information. Although these sites may benefit consumers, they can pose the same problems for employers as online social networks and blogs.

Defamation, Harassment, and Threats“Cybersmearing”—libel and defamation that occurs online—is a key concern for employers. An employer could find itself defending its employee’s unauthorized postings against claims of defamation, harassment, or trade disparagement.

Of course, employers must prohibit harassment in the workplace. Employers may also be liable for off-duty conduct, and so must ensure that employees are prohibited from harassing other employ-ees in any work-related environment. In Blakely v. Continental Airlines, Inc.,11

the New Jersey Supreme Court held that Continental Airlines had a duty to pre-vent defamatory and harassing statements made by its pilots in an online forum if the company benefited from its employ-ees’ use of the forum.

The court held that employers have a duty to stop co-employee harassment “in settings that are related to the workplace” if the employers know or have reason to know that harassment is taking place. The court reasoned that

severe or pervasive harassment in a work-related setting that continues a pattern of harassment on the job is sufficiently related to the work-place that an informed employer who takes no effective measures to stop it, sends the harassed employee the message that the harassment is acceptable and that the manage-ment supports the harasser. The Blakely court noted that the

employer benefited from activity that occurred online because it gave employees access to information on certain benefits and increased operational efficiency. The court analogized Continental’s online forum to a company bulletin board and concluded that it had “little doubt” that if the messages were posted on a com-pany bulletin board, such messages would be considered part of the workplace set-ting. The court did not require employers to monitor employees’ private email; it required only monitoring of a work-related setting.12

The decision in Blakely underscores that if an employer maintains a blog or other online forum, the employer must monitor its usage and prohibit harass-ment. If the employer does not maintain its own blog or online forum, it should still clearly prohibit online harassment. Most employers already have an anti- harassment policy and a policy prohibit-ing threats of violence; both should reference online conduct.

Conversely, employers may find them-selves in a position where they must prosecute a defamation suit. A company might seek to prevent a competitor from posting false information about the quality

of its products or services. Online postings could also harm a company’s goodwill.

In Varian Medical Systems, Inc. v. Delfino,13 two former employees posted derogatory messages about their former employer and its executive employees on Internet bulletin boards. The employees accused the employer of lies, hallucina-tions, mental illness, incompetence, harassment, discrimination, and stalking. The employees also implied that another employee had sex with her supervisor to obtain her job. In their defense, the for-mer employees argued that no one would take an outrageous anonymous post-ing on the Internet seriously. The court disagreed, holding that the employees’ accusations were libelous.

The Communications Decency ActOften, the writer of a potentially libelous statement may be anonymous or judg-ment-proof. In those cases, some plain-tiffs have attempted to hold the facilita-tor of the communication liable. The server or a blog owner may be alleged to be the facilitator.

Courts, however, have roundly defeated these attempts based on the Communications Decency Act.14 This act immunizes providers or users of interac-tive computer services from any cause of action that would make them liable for publishing information provided by a third-party user of the service. Blog owners are not liable for defamation on the basis of comments made by others. This is known as the Zeran rule.15 The act does not, however, apply to intellectual property infringement.16

The consequences mandated by this act are unsatisfactory to some courts. For example, the California Supreme Court noted in Barrett v. Rosenthal17 that it could not sanction the blog facilitator. “[R] ec-ognizing broad immunity for defamatory republications on the Internet has some troubling consequences. Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.”18 Even if the facilitator knows that the information or speech is unlawful, such knowledge is “not

Discipline of an employee could

be interpreted as retaliation for engaging in protected

speech.


Summer 2009 Employment & Labor Relations Law

enough to make it the service provider’s own speech.”19

Employers that maintain blogs or online forums should guard against copy-right and trademark infringement. The Communications Decency Act will not insulate them from liability for copyright and trademark infringement that occurs on company-maintained blogs.

Online Social Networking and Discrimination ClaimsIf an employer discovers that an employee has engaged in objectionable communica-tions online, then discipline is appropriate. As always, employers should exercise cau-tion and do so uniformly. The discipline could serve as the basis of a discrimination claim if the employer treats similarly situ-ated employees differently.

One prominent case involved a Delta Airlines flight attendant who maintained a blog that included pictures of herself in the Delta uniform.20 Delta fired her be-cause the pictures were too revealing. The employee sued Delta for gender discrimi-nation and alleged that male employees posted online pictures of themselves in the uniform while engaging in more ob-jectionable conduct. Before taking adverse action against an employee based on online conduct, an employer must ensure that other employees are not engaging in similar online conduct, and strive to treat all similarly situated employees uniformly.

Online Social Networking and Retaliation ClaimsPublic employers must also be aware that an employee’s online communications—no matter how objectionable—may involve protected speech. An employer’s discipline of an employee could be inter-preted as retaliation against the employee for engaging in protected speech.

In Richerson v. Beckon,21 a teacher sued her school district alleging retaliation for engaging in protected First Amendment speech. Richerson had been assigned a position that required her to spend half of her time as a teacher and half of her time in a coaching and mentoring role, where she was to maintain a peer relationship with other teachers and give non-evalu-ative and confidential advice. Richerson

also served on an interview committee to select a replacement for her prior position.

Richerson openly blogged about the replacement that the school district hired, describing him as a “smug know-it-all creep” and calling him “mighty white boy.” One entry was titled “Save us White Boy!” She discussed the interview com-mittee proceedings and noted that she disagreed with “Boss Lady 2.0’s” decision to hire the new employee. She also criti-cized the teachers’ union, stating “What I wouldn’t give to draw a little Hitler mustache on the chief negotiator.”

After the school district became aware of the blogs, it reassigned Richerson to full-time teaching duties. The district reasoned that her blog compromised her ability to perform duties as a confidential and non-evaluative mentor. Richerson filed suit alleging retaliation for engaging in protected speech.

The court analyzed the blog under the public concern test.22 Public employees may engage in protected speech de-pending on whether the speech impairs discipline or control by superiors; disrupts coworker relations; erodes close working relationships premised on personal loyalty and confidentiality; interferes with the speaker’s performance of his or her duties; or obstructs routine office operations.23

The court held that the online conduct would present “severe difficulties” in the proposed mentoring relationship. The court seemed surprised at the school board’s failure to impose punishment, calling the employee’s behavior salacious, mean-spirited, racist, and sexist. The comments “far exceeded normal standards of decency,” and had no relevance to matters of public concern. As a result, the court granted summary judgment to the school district. Although the employer was ultimately successful in this litigation, the case suggests that an employer should carefully evaluate online communication to ensure that it does not include pro-tected speech.

Employees may also seek protection for “concerted activity” for “mutual aid or protection” in communications regarding wages, hours, and working conditions. It is not yet clear how much protection the National Labor Relations Act (NLRA)

would provide in this regard. In the Register Guard case, the National Labor Relations Board favored management and found that the NLRA does not mandate access to employers’ email systems for union-organizing communications.24 An Italian labor union recently organized the first ever virtual protest in Second Life. The virtual protest included picket lines and protest kits for all interested avatars.25 Employees disciplined for such activities may contend that they were engaging in protected conduct.

Title VII also prohibits employers from retaliating against an employee because he or she opposed any discriminatory practice or because the employee was involved in investigations or proceedings under Title VII. Other claims of retaliation could arise if an employee engages in protected speech under the Americans with Dis-abilities Act, the Age Discrimination in Employment Act, the Earned Retirement Income Security Act, the Fair Labor Stan-dards Act, or Family Medical Leave Act (FMLA).26 For example, an employee’s complaint on a blog that the employer is not properly allowing sick leave could implicate the FMLA. An employer that disciplines this employee may be accused of retaliation. Lawyers should advise their clients to closely analyze whether the online communication contains any protected speech.

Access to Protected InformationAnother potential advantage of Inter-net and online social networks is that employers may use them to analyze job applicants. However, employers may not access or consider information that the law prohibits in making employment deci-sions. The employee’s online profile may contain protected information about age, marital status, familial status, or religious affiliation. The employer’s knowledge of this information could give ammunition to a discrimination claim by a denied ap-plicant. One possible solution is to have a non-decision-maker perform the search and report only the non-protected infor-mation to the decision maker. Employers should also consider discussing any infor-mation that would preclude employment with an applicant, to verify authenticity.



Disclosure of Proprietary InformationEmployees should never divulge trade secrets or other proprietary or confidential information in online communications. Misuse of company logos and trademarks is also of concern to employers. Employ-ers should update their confidentiality policies, employment agreements, and noncompetition agreements to address online social networks and peer-to-peer broadcasting technology such as Twitter.

Two risks arise in this area. First, there is the possibility that trade secret, propri-etary, or confidential information will be disseminated. Second, an unauthorized disclosure that becomes widely dissemi-nated may result in the loss of trade secret status. Prohibition of such communica-tions and prompt, effective action to address any unauthorized disclosures are necessary responses by employers in these situations.27

Monitoring Employees’ CommunicationsTo reduce these legal risks, some em-ployers may wish to monitor employees’ electronic communications. This is advis-able in many situations, but monitoring poses its own set of legal issues. Monitor-ing can implicate privacy issues and the Electronic Communications Privacy Act of 1986,28 which prohibits the intercep-tion of transmissions of electronic data by computer. The act, which applies to pri-vate entities as well as the government,29 expressly allows for the recovery of civil damages.30 Monitoring of electronic

communications is permissible after the communications are sent.31 Also, an employer may monitor communications if there is a legitimate business purpose or if the employee consents.32

Drafting Policies to Prevent ProblemsLawyers should assist employer clients in drafting clear policies that address blog-ging, micro-blogging, and other online conduct. Such policies should address all technology, including instant messag-ing and social network sites. Employers should assess the unique characteristics of their workforce, environment, industry, competitors, and markets.

An employer’s policy should advise that any online communication could quickly be broadcast to millions of read-ers. The content may also continue to circulate for years, even after revisions by the original author. Defamation, harass-ment, and other negative conduct must be prohibited. The policy should state clearly that users of employer-owned resources (including computers, laptops, cell phones, and PDAs) should have no expectation of privacy, nor an expecta-tion of privacy in stored or deleted files. Employees should be advised that email and Internet use on the company’s systems will be monitored. The policy should also advise all employees that all communica-tion systems, employer-owned or -issued equipment, or data, in whatever form, belong exclusively to the employer and may be used only for legitimate business purposes of the employer. The employee should sign an acknowledgment of receipt of the policy. Employers must also enforce the policy uniformly to prevent accusa-tions of discrimination. Lawyers should also monitor state law in this rapidly changing area. State laws differ widely on the extent to which an employer may regulate an employee’s off-duty conduct.

All policies regarding online com-munications should clearly prohibit offensive or harassing communications or threats related to employment in any way. These prohibitions should also be part of an employer’s policies prohibiting discrimination, harassment, retaliation, and threats of violence. Further policy considerations include:

• whether the policy should address “anonymous” communications

• whether the policy should include both broadcast and peer-to-peer formats

• whether prohibiting instant messaging or texting is necessary or desirable

• whether permission or pre-approval for Intranet postings is required

• whether permission or pre-approval for the use of quotations, tag lines, icons, logos, etc., is required for email messages, either internal or outbound

• whether limitations on the use of electronic devices or ear buds is advisable; for example, during meetings or while driving

• whether the issue of blogs and other Internet postings should be addressed in settlement and severance agreements with former employees

For blogging in particular, employers should consider the following:

• whether to prohibit non-work related blogging while at work or on work time

• whether to address blogging outside of work, being cautions not to overreach, and being mindful of applicable state laws

• what other applicable policies, such as confidentiality, should be included in materials about blogging

• whether or when to limit use of the employer’s name or logo, and a prohibition of online conduct that could damage the employer’s busi-ness or reputation

An employer should consider all of these issues when developing and enforcing policies, to reduce the risk of liability.

Endnotes1. Jill Schachner Chanen, Risky Blogness,

ABA Journal, November 2008, at 25.2. Danah M. Boyd & Nicole B. Ellison,

Social Network Sites: Definition, History, and Scholarship, Journal of Computer-Mediated

The policy should advise

that any online communication

could quickly be broadcast to millions of

readers.

Continued on page 12



Communication, 13(1), 2007, available at http://jcmc.indiana .edu/vol13/issue1/boyd.ellison.html.

3. Merriam-Webster Online Dictionary, www.merriam-webster.com/dictionary/blog, last visited Mar. 12 2009.

4. Other micro-blogging tools are Jaiku and Plurk.

5. Jodi Mardesich, Business Uses for Twitter, Inc., Jan. 17, 2009, http://technology.inc.com/networking/articles/200809/twitter.html.

6. Id.; Heidi Homa, Police a-Twitter over news alerts, Ariz. Republic, (Aug. 27, 2008), available at www.azcentral.com/community/chandler/articles/2008/08/27/20080827abrk-twitter0828 .html (last visited Jan. 17, 2009).

7. Jodi Mardesich, Business Uses for Twitter, Inc., Jan. 17, 2009, http://technology.inc.com/networking/articles/200809/twitter.html.

8. Heidi Homa, Police a-Twitter over news alerts, Ariz. Republic, (Aug. 27, 2008), available at www.azcentral.com/community/chandler/articles/2008/08/27/20080827abrk-twitter0828 .html (last visited Jan. 17, 2009).

9. Id.10. See www.cars.com.11. 751 A.2d 538 (N.J. 2000).12. Blakely, 751 A.2d at 552 (“To repeat,

employers do not have a duty to monitor private communications of their employees; employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace.”).

13. 113 Cal. App. 4th 273 (Cal. App. 2003), rev’d on other grounds, 106 P.3d 958 (Cal. 2005).

14. 47 U.S.C. § 230.15. Zeran v. Am. Online, Inc., 129 F.3d 327

(4th Cir. 1997).16. Parker v. Google, Inc., 422 F.Supp.2d 492

(E.D. Pa. 2006).17. 40 Cal. 4th 33 (2006).18. Id. at 40.19. Universal Commun. Sys. v. Lycos, Inc.,

478 F.3d 413, 420 (1st Cir. 2007) (also stating that “Section 230 immunity applies even after notice of the potentially unlawful nature of the third-party content”).

Cherie Silberman in an article en-titled “Employment Investigations: Selecting an In-House or Outside Investigator.” This thoughtful article reviews a number of key aspects of an investigation, including the selection of an experienced investi-gator, the importance of objectivity, the implications of the Fair Credit Reporting Act in this context, pres-ervation of attorney-client privilege, and the essential need for conduct-ing a prompt investigation.

The ever-emerging new techno-logy that continues to change the global communication network and the American workplace is addressed by Patty Wise in “Tweet, Tweet, You’re Fired.” Ms. Wise covers a number of key points in connection with this growing area, including the current legal landscape of blogs and social networks; concerns with respect to “cybersmearing” and the implications for defamation, harass-ment, and threats; the Communica-tions Decency Act; online social networking and discrimination claims; and a host of other issues. In addition, the author provides

concrete suggestions for the develop-ment of an effective policy.

In the complicated area of elec-tronic discovery, Michael Swarz, in the article “Don’t Get Left Behind: Why Leveraging Electronic Discovery in Employment Proceedings Matters,” provides a number of practical insights in dealing with electronic discovery matters in the employment context.

Finally, the question of punitive damages and their application in the employment context is addressed by Melissa Yoon in “Navigating Puni-tive Damages in the Wake of Exxon Shipping Co. v. Baker.” Ms. Yoon highlights the recent recognition of due process limitations in the punitive damage award context and provides an analytical framework in evaluating punitive damage awards. In this regard, the applicability of the recent Exxon case by the Supreme Court is analyzed and discussed with respect to its potential applicability to the employment arena.

As always, your comments and articles are welcome. This newsletter is sent with the hope that you are in good health and spirits during this summer time.

Bill MartucciBrian Koji

From the Editors continued from page 2

20. Simonetti v. Delta Airlines Inc., No. 5-cv-2321 (N.D. Ga. 2005).

21. 2008 WL 833076 (W.D. Wash. Mar. 27, 2008).

22. Pickering v. Bd. of Educ., 391 U.S. 563 (1968).

23. Richerson v. Beckon, 2008 WL 833076. 24. The Guard Publishing Company, dba The

Register Guard, 351 NLRB No. 70 (2007).25. Rick Smith, Virtual Solidarity: IBM Work-

ers to Launch Strike in Second Life, Local Tech Wire, Sept. 22, 2007, http://localtechwire.com/business/local_tech_wire/news/story/1849345/.

26. Patricia A. Wise, Understanding and Preventing Workplace Retaliation,

4–6,(Thompson Publishing Group 2007) (2000).27. See DVD Copy Control Assoc. v. Bunner,

116 Cal. App. 4th 241 (2004).28. 18 U.S.C. § 2511.29. Kratz v. Kratz, 477 F Supp 463 (E.D.

Pa 1979); United States v. Burroughs, 564 F.2d 1111 (4th Cir. 1977), overruled on other grounds by United States v. Steed, 674 F2d 284 (4th Cir. 1982).

30. 18 U.S.C. § 2520.31. Eagle Inv. Sys. Corp. v. Tamm, 146

F.Supp.2d 105 (D. Mass. 2001).32. Simmons v. Sw. Bell Tel. Co., 452 F Supp

392 (W.D. Ok. 1978), affd, 611 F.2d 342 (10th Cir. 1979).

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