Getting Dooced: Employee Blogs and Employer Blogging Policies under the National Labor Relations Act
Cote, Marc, Washington Law Review
Abstract: Statistics show that a growing percentage of American workers maintain personal blogs. The fact that employees use personal blogs to discuss their experiences at work creates concerns for employers and the employees themselves. Employers worry that employee bloggers will make disparaging remarks about their companies, divulge trade secrets, or simply embarrass their companies. Employees worry about job security and their ability to communicate with fellow employees about job-related concerns. Analysis of the legal rights possessed by employee bloggers reveals that the National Labor Relations Act (NLRA) provides employees with protection from adverse employment actions in certain circumstances. The NLRA protects employee "concerted activity" for "mutual aid or protection." Based on the text and purpose of the NLRA, as well as case law interpreting this statute, courts should adopt a two-part test to determine whether an employee blogger receives legal protection. First, courts should require that the blog constitute a "collective" blog or "spokesperson" blog to be protected. Second, courts should also require that the blog discussion reveal an intent to spur protected group activity. In addition to this two-part test, courts should hold that under the NLRA, employers may not create policies with overbroad restrictions concerning the material on the personal blogs of employees because such restrictions infringe on employee rights to engage in "concerted activity" for their "mutual aid or protection."
An office employee works alone in a cubicle five days a week, rarely communicating with co-workers.1 She has not received a pay raise in two years and after talking with friends outside of work, she realizes that her earnings are far below the market rate. She is curious about the wages of co-workers, but never has the opportunity to discuss her concerns with them-her lunch break is only a half-hour long, and the breakroom lacks privacy due to the assistant manager's frequent eavesdropping on employee conversations. In addition to her low wages, she just learned that fringe benefits are being cut because of a downturn in business, and she will now be required to work weekend overtime. Frustrated by this apparent lack of control over her work life, she begins expressing her thoughts on a personal internet website, also known as a "weblog" or "blog."2 She emails co-workers and friends to invite them to read the blog. After the assistant manager hears two co-workers discussing the blog, he reports it to the manager. The manager then fires the employee blogger. The reason for the firing: Company policy prohibits employees from discussing employment-related issues in internet chat rooms or on any publicly available websites.
As an increasing number of employees find themselves in front of computers throughout the workday, many have begun discussing working conditions on personal blogs.3 Recent studies reveal both the pervasiveness of employee blogging and a lack of employer policies specifically addressing blogging. In a telephone survey of 1000 adults, 5% of American workers reported that they maintained personal blogs, but only 15% of the respondents' employers had specific policies concerning work-related blogging.4 Of employees who work for companies with blogging policies, 62% say the policies prohibit posting any employer-related information on personal blogs.5 Sixty percent say the policy discourages employees from criticizing or making negative comments about the employer.6 Another study found that 85% of employers do not have a written policy outlining appropriate employee blogging material, while 8% of employers do have such policies in place.7
The issue of employee blogging has become popular in the media.8 The increased attention to employee blogging is largely attributable to a few popular blogs.9 Blogger Heather Armstrong was fired from her web-design job in 2002 for writing about work colleagues on her blog. …