Suggested Employee Blogging (Personal Weblog) and Personal Website Policy for Employers    (Archive, from late 2003)

 

The following sample policy would be reasonable for most employers in mainstream American businesses, such as software development, financial services, securities, insurance, health care, retail, manufacturing, and media. It would tend to be applicable mainly to publicly traded companies. But many of the points shown here could also be adopted in the non-profit world, by NGO’s, school systems, local governments, and the like.

 

Background: Why does (the Employer) need a blogging policy?

 

Most rules of conduct for the workplace contemplate behavior that would take place within the physical boundaries of the workplace or within sight of the customer or client. Generally, these rules depend largely upon common sense but are particularly concerned with two big areas. The first area is the possibility of conduct that would create a hostile workplace (including sexual harassment or inappropriate remarks about race, religion, sexuality, and the like). The second area is the possibility of compromise of business secrets or confidential information, especially what are legally known as trade secrets. This possibility is particularly troublesome when there are negotiations regarding the sale of a company’s securities.

 

Since the middle 1990s, technology has allowed individuals of average means to set up web domains which can be accessed almost anywhere in the world from a public space. Previously, individuals could be “published” in most cases only with the supervision of a third party (or with considerable financial resources, which have also become less with regard to the self-publishing of books).  Comments made by an individual about his or her workplace on his or her own domain, since they normally can be accessed by other stakeholders of a company at any time, are, in some sense, “omnipresent” in the workplace. The same would hold for comments made on message boards, news groups or “trash boards” regarding a company’s stock, as run by various web companies. The possibility of unexpected publicity can come from sites on the World Wide Web, self-published books or newsletters, and even from peer-to-peer file sharing.

 

Sometimes, persons in the general public will be able to identify the employer even when the blogger is anonymous and the company is not named. In actual practice, sometimes circumstances in an organization are unique enough that others can identify them. This problem is well known in intellectual property law, as sometimes lawsuits have occurred after the publication of novels based on real events with only the “names changed.”

 

There is also a danger that, when there is a large amount of material in one blogging site, the public may believe, from the general tone or slant of the material, that the circumstances in the workplace can be deduced. There is a small but occasional possibility that the comments made by an associate on his or her own weblog could, even unintentionally, affect the company’s relationships with customers, shareholders, employees, or other important stakeholders. 

 

On the other hand, an employer will not want to compromise an employee’s off-job activities more than necessary, and will not want to get into the business of censorship of employee intellectual property. Furthermore, whatever the legal technicalities of “employment at will,” an employer should not dismiss associates summarily for off-duty behavior that employees may not always understand as having the potential to be harmful. Therefore a general blogging policy is appropriate.

 

(1/2006). Generally, a blogging policy would apply to any personally owned website with potentially provocative content. It would not matter of the site used blogging software or was formally organized like a blog (such as reverse chronological order). It is true, however, that many formal blogs are limited in the scope of their content, where as other website formats are often more expansive. But a “blogging policy” could well be called a “personal website policy.”

 

(3/2006).  In early 2006 there have been extensive media reports that employers are starting to check job applicants and possibly current associates for profiles and personal logs on social networking sites or personally owned sites, often with search engines.  Some employers will be concerned about the impression that personal content entered onto a public space with a “free entry” mechanism will make on stakeholders about the speakers. Members of the general public are likely to react in an unpredictable and sometimes “irrational” manner to such material, depending on widely varying cultural and social backgrounds. Employers should conduct these searches in an ethical manner, should base the searches on the job duties performed, and should announce their policies to job applicants and associates in advance in a conspicuous manner.

 

The public benefits from honest debate about issues in public spaces by individuals. It is not appropriate that employers censor this debate and stilt the content for “appearances.” Instead, personnel policies ought to reflect the view that some persons should not use “free entry” mechanisms to promote themselves as individuals in public when their specific job duties have major public visibility or consequences.

 

Policy for Individual Contributors

 

Generally, individual contributors (who are usually salaried or hourly associates or are contractors or freelancers) may self-publish in print and on the World Wide Web and similar vehicles, without prior censorship by the company. (An individual contributor is an associate who does not fall into one of the categories given below, in the next section; that is, the associate is not a key contributor.) Individual contributors, whether or not they identify themselves by name in public, however, should follow these rules when doing so:

 

· As with other forms of communication, do not engage in personal or sexual harassment, unfounded accusations, or remarks that would contribute to a hostile workplace (racial, sexual, religious, etc.)

· As with other forms of communication, protect company confidential information and especially trade secrets

· Do not mention the associate’s connection with the company. (12/2005). Be careful with personal narratives, especially “Socratic self-incrimination” (below) as these can be misconstrued out of context by others.

· Avoid discussing the associate’s employer (whether or not the employer is named) or other specific stakeholders, or incidents that have occurred in the workplace and that are not generally known outside the workplace. Do not show images of company premises or property.

· When addressing controversial issues, emphasize the issue and underlying principles of debate rather than specific parties involved.

· It is acceptable to mention an incident that has occurred within the company if the incident has first been reported through the established media or press, and that first report is identified in a normal bibliographic manner.

· Do not appear in pornography

· Do not engage in other activities that are illegal (such as spam, piracy).

· Include a conspicuous disclaimer that any opinions are strictly the associate’s own.

∙ (9/5/2006) “Bragging” or “self-libel” provision. Do not post in a public space any material which could cause a reasonable person (especially a client or customer) to question your fitness for the job that you have, or your belief in your own fitness. This provision will be interpreted with normal common law concepts of defamation. The artistic value or “objective legality” of a passage, or its claimed literary use of irony or hyperbole, will not defend your posting or online conduct with such content.

. Other possible measures include:

.. do not mention that you blog in front of employees or clients

.. demonstrate that you can qualify for outside third party media perils insurance or qualification under an umbrella policy

.. blog only in limited areas disconnected from the area of work

.. accept third party supervision before posting

..  use privacy settings for all posts and remove from search engine purview.

 

Policy for Key Contributors

 

A key contributor is an associate (salaried or hourly, or a contractor, who could be paid partially through commissions) who makes decisions about other stakeholders or who speaks in public for the organization. The general policy for key contributors is simple. Key contributors should not blog or self-publish with respect to any subject without supervision. Instead of content censorship, supervision could include mechanisms to restrict access to a known list of users. (5/3/2005), or could allow anonymous self-publication (6/17/2005). Supervision may also consist of the associate-author’s agreement to freeze published content (hardcopy, Internet, or both) as of a particular date before beginning remunerated work. (1/16/2006)  Supervision could consist of agreeing to keep blog or personal website content confined to an work-unrelated topic, but this might be perceived as unwelcome censorship by the writer.(12/2006) Someone who becomes a key-contributor and who had acted as a key-contributor previously could be required to remove Internet content (including references through major search engines) or turn it over to a third-party for supervision; however such a person could not be required to remove (or attempt to have removed)  references (such as bibliographic references or hyperlinks) lawfully made to him or her (including third-party-reference search engine results and caches) in the past by others.

 

Here are some examples of jobs that would require an associate to make discretionary decisions about other stakeholders:

 

· A (normally salaried) manager (or executive) with direct reports and “hiring and firing” authority

· An underwriter who makes decisions about which customers may receive insurance

· Below the college level, a teacher who assigns grades to students and who has ample discretion in assigning grades (12/2005: (permanent) public school teacher off-duty speech follows the  Pickering-Connick, as to whether the speech would disrupt the school system, its curricula, or disturb students. Other relevant litigation with similar principals is Tinker, Ubriaco, Emmet v. Kent, Beussink v. Woodland, Bethlehem, Porter v. Ascension, Ginsberg v. New York.) (4/26/2005: only a teacher who both instructs students and participates in evaluating students would fit this criterion.)

· Any executive making a decision about a public offering of a security

(9/24/2006) An important factor in finding that an associate is a “key person” will be whether that person’s identity is known to clients and external customers outside of the physical workspace.

 

Here are some examples of jobs that would require an associate to represent the organization (or a labor union) publicly.

 

· A formal public spokesperson

· A political lobbyist

· A sales person whose job requires him or her to leave company premises without supervision on sales calls, or to entertain clients

 

Special Circumstances

 

Some jobs may create unusual circumstance that would require the employer to become involved in monitoring employee public expressions, on a case-by-case basis. These jobs could include

 

· Jobs in law enforcement, intelligence, or collections that require a public “low profile.” as well as most military servicemembers

· Jobs in “fraternal companies” (companies or divisions that serve a specific and limited class of customer that may be perceived as a special interest)

· Jobs that may require unavoidable or unpredictable intimate contact with customers or clients, especially if circumstances occur where clients cannot give informed consent to such contact

· Journalists (reporters who are expected to maintain public objectivity) and media editors

· (10/17/2006) Employment recruiters, if their duties have advanced beyond initial telephone or email fact finding (from clients and applicants) and clerical processing, into contributing to actual decision making about applicants. A similar rule could apply to literary agents, scriptreaders, and the like.

· (10/19/2006) Contractors who are sent to client locations to work, whose employers use contractor resumes to get business, and who are paid full salaries and benefits even when “on the bench.”

· Insurance agents or financial planners (5/13/2005)

. see”involuntary manager” below

 

(5/13/2005) The guidelines given on this page would refer to self-publishing activities on the Internet regardless of whether they are compensated by a third party or by advertisers. Some employers may, for various special conflict-of-interest reasons, have “no moonlighting” policies that prohibit outside employment or even income from deployment of intellectual or real property. This is a financial conflict of interest issue and is somewhat distinct from the “right of publicity” issues explored on this page. (12/2006) Some employers may choose to encourage limited-topic blogging, which they would want to supervise. But this falls under corporate blogging, not personal blogging. 

 

(10/9/2006) Short term jobs (less than thirty days) with “direct reports” or partisan public advocacy would not be considered in the “key contributor” category. For example, in a trivial sense, election judges are often identified in a partisan manner, but their participation is short term and the partisanship is inconsequential. These guidelines would probably not apply to religious employers (who are exempt from most common fair employment legislation – as noted in a thorough series in The New York Times on Oct. 2006 – and partisan political appointments, which obviously demand partisan public loyalty).

 

(1/2007) Cooperative publishing (or “networked journalism”) through another company would not violate this policy if the other company provides monitoring, oversight, and content limitation. Instead, the publishing would be viewed as a more “conflict of interest” business decision.

 

. (11/8/2006) A major factor in a "key contributor" finding is that an associate’s name or identity would be known to clients or external customers or external stakeholders outside of the immediate internal work environment and outside of a staffing company.  For example, telephone representatives in customer service in most organizations use only their first names in order to hide their identities, which fortifies the idea that the job is an individual contributor position. On the other hand, most teachers are known to parents so they are key contributors. Again, this concept related to the notion of "right of publicity" in intellectual property law. A W-2 temporary contractor(without temployee  benefits)  is not viewed as “publicly known” under this clause, but a CTC (corp-to-corp) contractor is if paid a salary  while “on the bench”. 

 

Anonymity and Search Engines (10/2005)

 

Many civil libertarians speak strongly in favor of protecting anonymous speech. Presumably, an anonymous or pseudonymous blog or domain would not raise the risks discussed in this article because it could not be picked up by search engines (in connection with the name of the speaker). A related concern would be that some personal names are much more common than others.  A site can have tags that exclude search engines and robots, so that they do not normally get found outside a known audience. Alternatively, a site could be made available only to a known subscription list or through a “virtual office” site that requires a known private membership. Of course, these sites would be less effective in many cases in promoting various political or social causes or ideas. In some cases, employers have discharged persons even for anonymous Internet activity that embarrasses the employer or discloses confidential information. Employers certainly can consider recommending various techniques to provide anonymity for key person employees who wish to speak off the job.

 

An employer may want to explicitly prohibit employee statements of self-incrimination in an unrestricted open forum (that is, a blog or other similar website accessible to the public through search engines, (05/2006) and particularly with fictitious settings, which are often more vulnerable to reader prejudice), even if the statement is made for hyperbolic effect in a political argument, if the employee (even an individual contributor) has duties that make his or her job unusually sensitive for clients. (See 9/05/2006 provision added above.)  (1/1/2007: None of this would apply to blogs or sites viewable only from whitelists, which are effectively more like restricted intranet sties anyway.)

 

Matrix managers; involuntary managers (11/2009)

 

People who manage contractors informally but who have no h.r. responsibilities presumably have less effect on the livelihood of the contractors than they would have for direct reports.  Employers could consider whether they need to enforce rules like these, or could allow much more time to comply.

 

Persons promoted “involuntarily” would not be subject to the same rules, or could be given much more time to comply.

 

Persons supervising others (such as caregivers) “involuntarily” because of family situations beyond their control would also not have to follow the same rules, or could take much more time to comply.

 

 

Self-promotion and perceived workplace disturbance (11/2005; 3/2006; 11/2006)

 

Some organizations may want to regulate employee off-duty blogging or self-publication not based on content per se (which courts might not allow in some cases) or even activity, but on notions of the likelihood of workplace disruption (especially a problem perceived by schools), or that self-promotion in a public space (in conjunction with unusual controversy or “self-incrimination”) represents bad faith or a break in public trust. Organizations may be included to write policies that prohibit attempting to draw public attention or celebritize oneself without supervision outside of the workplace, and they might feel inclined to apply those policies to all associates; I would fear that this concept (which would be vague and hard to define) could lead to censorship content related to social conformity. Organizations may fear in some cases that employees could inadvertently compromise their ability to defend themselves against adverse actions by others and may compromise security or reputation of others inadvertently or indirectly.  Some organizations may try to regulate the ability of employees to earn any income outside of the job (to avoid perceived legal conflicts, as in financial services, or because of a training subsidy). Again, I believe that regulation of employee off-duty speech in a public space (the Internet) ought to be tied closely to the duties of the job, and that positions involving making decisions about others or involving publicly visible activity create many more ethical and legal questions than those of individual contributors. The focus of such a policy should be on the position in relation to the associate (having a publicly sensitive position) using free entry into a public space on his own in conflict with his duties.

 

(05/2006) Organizations may be inclined to view public-space speech as “workplace conversation” and may feel entitled to use it as an acceptable barometer for the associate’s continued employment. However, a well-articulated blogging policy would reduce the need to perceive personal blogs, weblogs and social networking site profiles this way.

 

This link on blogging incident examples provides more details about the blogging issue, including links to other sites that describe specific incidents that have occurred in numerous organizations.

Here is a related link about zoning issues, and another related link about insurance issues.

 

Visit my blogspot entry on these issues: http://billboushka.blogspot.com/2006/01/student-profiles-teacher-blogs-and.html; http://billboushka.blogspot.com/2006/09/when-it-rains-it-pours-more-on-social.html   or http://billboushka.blogspot.com

 

Book review of AMA’s “Blog Rules” by Nancy Flynn

 

©Copyright 2005 by Bill Boushka. All rights reserved, subject to normal fair use (please cite in a normal way in any bibliographic reference or link). Composed 2/22/2005 (slight changes – “public space” wording added 4/14/2005. Supervision provision added 5/3/2005; financial provisions added 5/13/2005.)  

 

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