July 09-2005:
Bloggers Legal Rights & The National Labor Act:
Bloggers' FAQ: Labor LawThe Bloggers' FAQ on Labor Law addresses legal issues arising from workplace blogging, including union organizing, protections for political blogging away from the workplace, and whistle-blogging.
If I am fired for blogging while at work, do I have any legal recourse? Maybe.
That depends on a number of factors, including whether you work for a private
or government employer, whether your job is covered by a union contract or any other employment agreement, and what you were blogging about. In general, in California and most of the other states, if you work for a private employer and you have no union contract or other agreement that provides you with additional protections, you are considered an "at will" employee and the employer may fire you for any reason that is not specifically prohibited by law. (For discussions of some reasons that are specifically prohibited by law, see below. A union contract or another employment agreement may protect you by requiring "just cause" for termination and/or by addressing electronic privacy and/or computer use issues. In some very limited circumstances, even if you don't have a written employment agreement, personnel policies or promises made to you over the course of your time on the job may establish some additional protections.
Do I have more protection if I work for the government?
Yes. If you work for any level of government (also called a "public employer"), your employer's right to fire you is also limited by the First Amendment's protection of your right to free speech. However, your free speech rights as an employee are more limited than they are as a member of the general public. If you were to challenge your termination on First Amendment grounds, courts would balance your employer's legitimate interest in delivering efficient government services against your interest as a citizen in commenting on a matter of public concern. So if you blog about something important to the public, you have greater protection. But if your blog's content could disrupt the workplace, your protection diminishes. Government employees also enjoy some legal protections against being disciplined, which vary based on the level of government you work for. In California, for example, a public employee is entitled to notice and a hearing prior to termination. See Skelly v. State Personnel Board, 15 Cal.3d 194 (1975). You may also find the Federal Employees Legal Survival Guide helpful.
What if I am fired for something I wrote in my blog when I wasn't at work?
Some states provide legal protection for activity outside the work place. For example, California Labor Code Sections 1101 and 1102 prohibit employers from interfering with their employees' political activities. If you blog about something political in California, these laws may protect you.
In addition, we believe that two relatively new provisions of the California Labor Code that address "lawful conduct during nonworking hours away from the employer's premises" could be used to protect employee bloggers. On their face, the provisions prohibit employers from disciplining employees for anything that goes on outside of work so long as it's legal (including, presumably, blogging). See Cal. Labor Code §§ 96(k); 98.6. So far, however, courts have not construed the law so broadly. Some courts and the Attorney General have ruled that these provisions merely help enforce existing rights -- such as the right to privacy -- rather than give employees any additional rights. See Grinzi v. San Diego Hospice Corp., 120 Cal.App.4th 72, 86-88 (2004); Barbee v. Household Automotive Finance Corp., 113 Cal.App.4th 525, 534-36 (2003). While the issue is not settled, these rulings suggest that Section 96(k) and 98.6 apply only if, in the course of terminating you, the employer violated some right that you have under other laws (for example, by interfering with your political activities, or libeling you).
Some states other than California (Colorado, New York, and North Dakota) have also enacted statutes that prohibit employers from terminating employees for engaging in lawful activities outside of work, including political activities. But these laws also have broader exceptions than California's and some do not apply to disciplinary actions other than firing. The District of Columbia, Connecticut, and some cities (for example, Seattle, Lansing, and Madison) also prohibit discrimination on the basis of political or expressive activity. For links to these laws and a discussion of the protections they provide, see the Workplace Fairness FAQ on Retaliation for Political Activity.
Can my employer read my blog?
If you don't restrict access to your blog with a password or other scheme, your employer probably does not violate the law by reading it. But if you restrict access and your employer reads it anyway, this may violate provisions of federal and state laws that prohibit the unauthorized interception of communications. See 18 U.S.C. §§ 2510 et seq. (Wiretap Act), 2701 et seq. (Stored Communications Act) ; Cal. Penal Code §§ 631-32. However, many of these laws exempt some employer monitoring. And some laws have been interpreted to ban only the interception of communications during transmission – not interception of any stored communications (your posts are "stored" on a server). See, e.g., Konop v. Hawaiian Airlines, Inc., 302 F.2d 868 (9th Cir. 2002).
If, however, you use work computers to blog, your employer has a much stronger claim to being able to legally read it even if you restrict access. See below.
On the other hand, if you're blogging about something deeply personal on your restricted-access blog, you may be able to claim that your employer has violated your right to privacy by unreasonably "intruding upon your seclusion." I have a personal blog, but I don't tell my work colleagues about it.
Should I expect my employer to find it?
Yes. Search tools are becoming more and more powerful and effective. If you open your blog to the public, you should expect that anyone and everyone could find and read it. Not just your employer, but also your mother, that guy in middle school who used to steal your lunch money, potential future colleagues and employers - anyone. So if you wish to blog about controversial topics, consider blogging anonymously or restricting access to your blog.
Can my employer monitor my blog if I use work computers or the company network?
Some courts have ruled that if you are using your employer's equipment (even at home, after work hours) or computer network (even on your own personal computer), your employer's freedom to monitor your electronic communications is not limited by any reasonable expectation of privacy. See Smyth v. The Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996); TBG Ins. Services Corp. v. Superior Ct., 96 Cal.App.4th 443 (Cal. Ct. App. 2002). If your employer told you (perhaps in fine print when you were hired) that you could potentially be monitored, your privacy claim is even weaker. So make sure that you are not using your employer's computer or network when you engage in blogging activities that you would prefer to keep private.
Is it legal for my boss to monitor my blogging at work if I'm on a break?
The privacy protections that an employee enjoys at work are limited, especially in public areas of the workplace and while using employer equipment. (See the American Management Association (AMA) and the ePolicy Institute, 2005 Electronic Monitoring & Surveillance Survey ).
However, if you are communicating with fellow employees about unionizing or another issue related to your employment, employer surveillance may violate federal labor law by having a "chilling effect" on your right to engage in protected, concerted activities. (See, e.g., NLRB v. Unbelievable, Inc., 71 F.3d 1434 (9th Cir. 1995). In NLRB v. Unbelievable, an employer who eavesdropped on employee conversations in the break room was found to have committed an unfair labor practice. So if you're blogging about unionizing during your break and your boss listens in, you could file an unfair labor practice charge with the National Labor Relations Board.
Public employees are also protected by the Fourth Amendment of the US Constitution, although whether or not your employer is permitted to monitor your communications still depends on whether a court determines that you had a "reasonable expectation of privacy."
If my co-workers and I start a blog about our workplace, are there any laws that protect us from being fired for what we say on it?
Yes. The National Labor Relations Act not only protects employees who are trying to unionize, it also any employee who "engage[s] in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157. Activities are "concerted" if multiple employees are acting together, or if the activity is part of one employee's effort to instigate collective action. Activities are "for the purpose of . . . mutual aid or protection" if they relate to employees' interests as employees (in other words, wages, hours, or other terms and conditions of employment). Efforts to change your employer's corporate disclosure policies or shareholder meeting practices, for example, would not qualify as protected under this provision.
What safeguards do I have for blogging with co-workers for mutual aid or protection?
An employer is not allowed to retaliate against employees (for example, by demoting or firing them) for engaging in concerted activities for mutual aid or protection. Thus, for example, an employer probably cannot discipline an employee for blogging about the company's inadequate pay scale with other employees, or for using a blog to urge other employees to challenge the company's vacation policy. See Timekeeping Sys., Inc., 323 NLRB 244, 247-49 (1997).
Can I be fired for using my work computer to blog about working conditions?
Not if that's the reason for terminating you. You can be fired based on a generally applicable policy, such as a rule prohibiting personal use of the employer's computer equipment. But the termination may be unlawful if the policy is being administered in a way that discriminates against protected, concerted activities (for example, if the employer has tolerated blogging about other subjects during work time, but takes action against an employee who blogs about low wages). In addition, while the issue is unsettled, a "no personal use" email policy may violate federal labor law even if applied in an even-handed manner, if it serves to restrict speech about protected, concerted activities. An employee fired for such activities can file an unfair labor practice charge with the National Labor Relations Board.
State laws provide some additional protections. For example, California law prevents employers from maintaining or enforcing rules prohibiting employees from disclosing their wages. Cal. Labor Code §232.
Are there limits to these protections for work blogging for mutual aid or protection?
Yes. For example, false or defamatory statements, statements that disclose an employer's trade secrets, and similarly unlawful statements will generally not qualify for protection. Also, independent contractors, supervisors, and other categories of employees are exempted from the National Labor Relations Act's protections. Public employees are also excluded, but many states have laws that are modeled after federal labor law and protect government employees against retaliation for protected, concerted activities.
Are there certain topics I can blog about that are protected by law, so that no employer can fire me for saying them?
Certain speech about unionization or terms and conditions of employment is protected.
In some circumstances it might also violate the law for an employer to fire or discipline you for blogging about matters that are protected by statute. For example, if you were blogging about your experience with sex discrimination at work, it may violate the law for the employer to take action against you. State and federal laws prohibit discrimination based on race, national origin, sex, pregnancy, religion, disability, age, serious health condition, and, in some states, sexual orientation or family/marital status. These laws also prohibit retaliation for complaining about discrimination or harassment based on these characteristics. It also may violate the law for an employer to retaliate against you for complaining about workplace safety issues.
If you are fired for blogging about issues that relate to your membership in these protected groups, you may have a legal basis to challenge your termination. Keep in mind, however, that it may be difficult to prove that your employer fired you for these reasons. You are much more likely to be protected if you formally complained about the matter at issue before your employer took action against you, either to your employer or to the appropriate state or federal agency. The complaint should be in written form, to make it easier to prove later that you actually did complain.
What should I do if I was terminated in retaliation for protected activity?
If you believe that your termination was discriminatory or retaliatory, you will need to file a complaint with the appropriate federal and/or state agency before filing a lawsuit. These laws often have strict time limits, so you may need to act quickly. Also keep in mind that these laws apply only to employers of a certain size (based on the number of employees) and do not protect independent contractors. For more details, refer to these fact sheets by the Legal Aid Society-Employment
Law Center: Employment Discrimination Wrongful Termination Health and Safety Protections in the Workplace
How can a union protect my right to blog at work?
Union contracts, reached in bargaining sessions with the employer, typically contain a provision prohibiting discipline or termination of employees except for "good cause." Whether your blogging activities constitute such "good cause" would depend upon whether they violate the employer's work rules, whether the union contract places limitations on those work rules, the specific conduct involved, and your employment record. If you are disciplined or terminated without good cause, the union can file a grievance on your behalf. Typically the grievance process has a final step of arbitration, where an independent arbitrator decides whether the employer violated the union contract and, if so, may order the employer to reverse the disciplinary action and compensate you for your harm.
In addition, more and more unions are negotiating specific protections for workers' use of electronic means of communications. For example, some union contracts contain provisions that allow reasonable personal use of an employer's computer equipment, or that prohibit terminating an employee for off-duty conduct. And even if the union contract doesn't contain anything specific, an employer will be required to bargain with the union before making a unilateral change in a workplace computer or email policy.
Can I be fired if I create a blog about unionizing my workplace?
No. Employees' right to self-organization, including by forming or joining labor unions, is protected by federal law. See 29 U.S.C. §157. An employer may not fire you for blogging about unionization and, if you are fired for such activity, you can file an unfair labor practice charge with the National Labor Relations Board. If you are working with an already established union, that union may be willing to help you file and prosecute the charge. See above (link to "certain topics") for more details about whether an employer who claims to be applying a generally applicable workplace policy can take action against you for union-related speech.
Can I be fired for whistle-blogging about my company's violation of the law?
No, if you report the violation before whistle-blogging about it. Many federal and state laws protect "whistleblowers" – employees who reveal their employers' unlawful activities. Typically these laws protect employees against retaliation even if the employer was not actually doing something unlawful, so long as the employee reasonably believed that it was. Some of these laws protect blowing the whistle about specific matters, like reporting violations of the Securities and Exchange Commission rules or other fraud against shareholders. Others confer more general protections. But whistle-blogging about unlawful activity without reporting it to a government agency may not be protected. See below [link to next question].
Should I report the violation before whistle-blogging about it?
Yes. Whistle-blowing laws will typically protect you only after you have actually blown the whistle, by reporting the unlawful activity to a government agency. Some laws also protect employees who report illegal activity to their supervisor or employer, but you are better protected if you also make a complaint to a government entity. If you are a public employee, reporting the unlawful activity to your employer may suffice to give you whistleblower protection. Public employees may also report to the Office of Special Counsel's Disclosure Unit.
Whistleblower protection laws often have strict time limits for complaining that you were retaliated against for whistle-blowing activities. See e.g. Occupational Safety & Health Administration's whistleblower program , or, for more detail, see the Workplace Fairness FAQ on Whistleblowing and Retaliation . What can I do to protect myself from employer retaliation? Blog anonymously. EFF's How to Blog Safely (About Work or Anything Else) offers a few simple precautions to help you maintain control of your personal privacy so that you can express yourself without facing unjust retaliation. If followed correctly, these protections can save you from embarrassment or just plain weirdness in front of your friends and coworkers.
Do some companies permit employee blogging?
Yes. A number of companies permit or even encourage workplace blogging. For example, Sun has 1,300 employee blogs -- including company President Jonathan Schwartz. Many companies that permit blogging have guidelines for their employees. Toby Bloomberg of Diva Marketing Blog, has compiled a list of company blogging guidelines, and Fredrik Wackå's CorporateBlogging site provides a guide to corporate blogging.
Where can I get more information on workplace blogging?
CNet has published an FAQ about blogging on the job. Workplace Fairness provides a detailed overview of your rights under labor law, as does the Legal Aid Society-Employment Law Center. For the corporate audience, the law firm Howard Rice published a newsletter article, Corporate Blogging - Seize the Opportunity, But Control the Risks.
Thanks to Stacey M. Leyton, an attorney with Altshuler, Berzon, Nussbaum, Rubin & Demain, for her work on this FAQ.
