Off-Duty Blogging

More adults are blogging and using social networking sites than ever before. If employees use company computers to blog, update their Facebook status or to “tweet,” employers generally have a right to monitor and limit those activities. Likewise, employers can properly prohibit personal use of the Internet during working hours. But what, if anything, can employers do about what employees put on the Internet during off hours from their personal computers?
It depends.

In New York, employers are statutorily prohibited from discriminating against employees because of their lawful off-duty recreational conduct. And federal law forbids employers from interfering with an employee’s right to engage in concerted activities for the purpose of collective bargaining. Blogging may be considered such concerted activity.

More adults are blogging and using social networking sites than ever before.

However, if an employee publicly disparages their employer on the web, they may be breaching their duty of loyalty to their employer and/or engaging in defamatory speech. The employer may be able to require the employee to remove the offensive comment or at least eliminate any overt or implicit references to the employer. If the employee refuses to do so, he or she may be disciplined and assuming the employee is at-will, termination may be appropriate.

In order to reduce the possibility of such conflicts, employers should ensure that their electronic communications policy advises employees what the rules are regarding the Internet, including what is prohibited during off-duty hours. For example, the policy should prohibit the disclosure of financial information, trade secrets and any confidential information of the employer. The policy should also instruct employees not to disparage the employer, its products or its customers, and should forbid the use of the company logo. Likewise, the policy may properly instruct employees to post a disclaimer stating that they are not blogging on the company’s behalf. Employers should have counsel review the policy before distributing it to ensure that it does not inadvertently prohibit blogging that may arguably be legally protected.

ellen r. storch, esq.

Ellemn R. Storch is an employment attorney with the firm Kaufman Dolowich Voluck & Gonzo LLP. Contact her at