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Problem: Weblogs, or 鈥渂logs,鈥� have become very popular in recent years. More than 15 million blogs presently exist, and it is estimated that some 900,000 new blog postings are added every day. Most of these have nothing to do with the workplace, although in an increasing number of cases disgruntled employees or ex-employees use blog postings to lash out at employers, supervisors or coworkers. How should employers deal with this new employment issue?

Solution: You might be thinking that the best way to deal with blogs is to prohibit all employees from blogging about their workplace.

Although this solution may be appealing, it raises issues under the National Labor Relations Act (NLRA), which entitles private-sector employees (whether or not they belong to unions) to engage in 鈥渃oncerted activity鈥� relating to their wages, hours and working conditions. For example, an employer may not simply ban all negative conversations about supervisors. In addition, the NLRA prohibits retaliation against employees for exercising their NLRA rights.

Where employees use a blog or chatroom to discuss 鈥渃oncerted activity,鈥� an employer that monitors and comments on such communications may be engaging in unlawful surveillance.

And discharging an employee for blog postings that can be deemed 鈥渃oncerted activity鈥� would also be a violation of the NLRA.

However, it’s important to remember that not all work-related speech is protected by the NLRA. For example, statements disloyal to the company, reckless or malicious lies, threatening or harassing statements and the disclosure of confidential information would likely be unprotected.

Keeping this limitation in mind, employers do have the right to place limitations on employees’ blogging activity, and many employers are now implementing blogging policies.

Among the provisions that would likely pass legal muster, which a comprehensive blogging policy might include, are the following:

鈥� Prohibit employees from writing blog postings while at work or using company-supplied computers, regardless of subject matter, as it may be viewed as an abuse of company time and/or inappropriate use of company computers.

鈥� Strictly prohibit employees from posting trade secrets or other confidential information about the employer’s business or its customers on blogging sites. Such information would also include upcoming new products or projects that have not been publicly announced, information about discounts offered to certain customers, or employee salary or pay information.

Note that because of employees’ rights under the NLRA, there should be no prohibition against discussing salary or pay information 鈥� just its public revelation.

鈥� Require employees to identify themselves by name when posting information, but prohibit them from identifying themselves as a company employee or suggesting that they are presenting the views of the company in any blogging activity that is not specifically required of them as part of their jobs.

鈥� Direct employees to use disclaimers when posting, indicating that the posting reflects their own personal views, but remind them this will not immunize them if their postings run afoul of other sections of the policy.

鈥� Require employees to secure advance permission from coworkers, supervisors or third parties who have a relationship with the company, such as vendors or customers, before posting such people’s names or referring to them in ways that might tend to identify them.

鈥� Prohibit employees from using blog postings to harass or attack any employee, contractor, customer or vendor 鈥� on any ground, not just on the basis of such legally protected categories as gender, sexual orientation, race, national origin, religion, age and disability. Remind employees that the company’s code of conduct and regular anti-harassment policies apply to blogging.

鈥� Prohibit employees from posting obscene or offensive material as well as material that might tend to bring disrepute to the company if it became known that the company employed the poster.

鈥� Advise employees that laws against defamation and libel apply to blogging and that they may be subject to legal action for spreading disparaging and untrue information about the company, or for defaming another person. Defamation is generally defined as writing or other communication that 鈥渆xposes any person to hatred, contempt, or ridicule, or which causes him to be shunned or avoided, or which has a tendency to injure him in his profession.鈥� Thus, falsely suggesting in a blog posting that an individual is a thief or a criminal, or is dishonest or sexually promiscuous, can result in legal action for defamation.

鈥� Remind employees that the laws against invasion of privacy also apply to blogging: Posting private information about another person’s medical, financial or sexual affairs may expose them to a lawsuit.

鈥� Remind them that blogging under an alias will not give them protection against legal action, as administrators of blogging Web sites may be forced by court order to reveal the identity of bloggers.

Warn employees that they will be subject to disciplinary action, up to and including termination of employment, for violation of the blogging policy, and that current and former employees may also be sued for damages by the company for misappropriation of trade secrets or tortious interference with business relationships, and they may be sued by individuals for harassment, defamation or invasion of privacy.

Rich Meneghello is a partner at the Portland office of Fisher & Phillips LLP, one of the oldest and largest employment law firms in the country, and is dedicated to representing the interests of management. He can be reached at [email protected] or 503-205-8044.