APPENDIX
Off-Duty Internet Use: Employers’ Perspectives
John Houston Pope
Epstein Becker & Green, P.C.
New York, NY
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Introduction
“The internet is a unique democratizing medium
unlike anything that has come before. The advent
of the internet dramatically changed the nature of
public discourse by allowing more and diverse
people to engage in public debate. Unlike thirty
years ago, when many citizens were barred from
meaningful participation in public discourse by
financial or status inequalities and a relatively small
number of powerful speakers could dominate the
marketplace of ideas the internet now allows
anyone with a phone line to become a town crier
with a voice that resonates farther than it could from
any soapbox. Through the internet, speakers can
bypass the mainstream media to speak directly to an
audience larger and more diverse than any the
Framers could have imagined.”
-- Doe v. Cahill, 884 A.2d 451, 453-54 (Del. 2005)
(internal quotes and alterations omitted)
“[T]he Internet is not something that you just dump
something on. It's not a big truck. It's a series of
tubes.”
-- Senator Ted Stevens (R-Alaska), June 28, 2006
In the modern workplace the line between on duty and off duty frequently blurs.
Many employees show up at a company’s offices or worksite, work an eight hour shift, and head
home. Other employees work long hours – beyond the traditional eight hour work day – and
sometimes switch from performing their employers’ work to performing personal tasks while
still at the office, still using company equipment. Still other groups of employees work from
home offices, or otherwise telecommute, and may be using their own computers, but their work
time and personal time intertwine.
When an employee plainly is working on company time, or is using company
equipment, an employer’s right to control the employee’s conduct generates comparatively little
controversy.1 An employee’s activities off duty – off the clock and away from the employer’s
premises and equipment – evoke a different response. One popular strain of thought views offduty time as sacrosanct and argues that employers should not be permitted to discipline or
terminate employees for what is said or done outside working hours.
In reality, employers have many interests that can be infringed by employee offduty conduct. These include an employer’s confidential information, its reputation, and its need
to maintain morale and discipline in the workplace. Employers, of course, do not need to
institute a totalitarian regime to govern employees outside of the workplace. Much of what
happens outside of work matters not. Indeed, for perhaps as long as people have worked for
other people, employees have talked about, complained about, and bragged about their work, at
home and in every manner of social setting outside of the workplace.
The ephemeral
conversations rarely mattered precisely because they came and went without a trace.
The internet changed things.2 The advent of weblogs, better known as blogs,
created an entirely new form of interpersonal communication. Millions of people record their
thoughts, observations, impressions and opinions on web pages that can be accessed from
virtually anywhere in the world. Others choose to use the internet to relate to other people in
1
See, e.g., Gates v. Caterpillar, Inc., __ F.3d. __, 2008 WL 141814 at *4 (7th Cir. Jan. 16,
2008) (employee’s excessive personal use of telephone and internet on company time constituted
legitimate basis for termination); Twymon v. Wells Fargo & Co., Inc., 462 F.3d 925, 935 (8th Cir. 2006)
(violation of company policies on excessive personal use of the internet and email, and receipt, storage or
dissemination of obscene materials); but see Guard Publishing Co., 351 NLRB No. 70 (Dec. 16, 2007)
(3-2 Board decision in which majority and dissent debate whether union should be given access to
company email system).
See, e.g., O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1445, 44 Cal. Rptr. 3d 72,
88 (2006) (contrasting the availability of a trail tracing the disclosure of trade secrets in a digital age to
the lack of such evidence when conversations left no such trail).
2
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different ways, through social networking sites (e.g., myspace.com), video and podcast postings
(e.g., youtube.com), or virtual worlds where users can assume an identity and engage in a
“second life” that parallels (or improves on) their own, albeit with such tweaks and revisions that
make them feel better about themselves. Employers face the task of thoughtfully and prudently
responding to what their employees elect to do in cyberspace.
Blogging, in particular, is different from the cocktail party patter of an earlier era.
A blogger sits down, composes entries, and posts them to a web page precisely so others – often
strangers – can read them (and perhaps comment on or discuss them further). Those posts
remain in cyberspace, ready to be discovered by wandering eyes that simply may have searched
the internet on a topic that located a blog entry due to the presence of key words. In a flash, the
fleeting complaints of yesteryear transform into a record that may be accessed by a competitor or
government regulator, or read by a co-worker or manager who is the subject of criticism or
ridicule, or considered by a recently interviewed candidate who is deciding whether to accept an
offer of employment. Of course, many bloggers intend that their comments will be found and
read, sometimes in anonymity and sometimes openly, with the purpose of venting their spleen
over what they feel their employer does wrong.
Blogs have grown into a significant medium.
Millions blog,3 and the
demographic of bloggers skews young4; more interaction between blogging and the workforce
3
David Sifry reported in April 2006 that Technorati, an internet search engine for
searching blogs, tracked 35.3 million weblogs – over 60 times the number of only 3 years earlier – with
75,000 new ones created each day. Nearly 20 million bloggers are still posting three months after they
start. See Sifry’s Alerts, “State of the Blogosphere, April 2006 Part 1: On Blogosphere Growth,” Apr. 17,
2006 (http://www.sifry.com/alerts/archives/000432.html). Wired Magazine’s website places the current
number of blogs at over 100 million. Jenna Wortham, “After 10 Years of Blogs, the Future's Brighter
Than Ever,” Wired (http://www.wired.com/entertainment/theweb/news/2007/12/blog_anniversary).
4
See Bruce Barry, SPEECHLESS: THE EROSION OF FREE EXPRESSION IN THE AMERICAN
WORKPLACE, at 176-79 (2007).
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can be expected as time goes by. With the growth of blogging, employers have responded –
sometimes wisely, sometimes not.
“Dooced”
The act of being firing for the contents of one’s blog earned its own name:
“dooced”.
The online Urban Dictionary defines “dooced” as “getting fired because of
something you wrote in your weblog.”5 The term derives from the name of a blog – Dooce –
written by Heather Armstrong.6 She was terminated from her job as a web designer in 2002
when her employer discovered her blog.
The number of employees dooced has grown over time. One website maintains a
list enumerating more than seventy affected employees worldwide.7
Some illustrative
“doocings” in the private sector include:

Michael Hanscom, who blogged on Eclecticism, released from his
position as a contract worker at Microsoft in 2003, after he hoped to
point out what he considered a “gentle irony” with his post of a photo
of the company’s receiving area at the main campus in Redmond,
Washington, which showed Apple computers in use.

Rob Smith, who blogged on Gut Rumbles, forced into early retirement
in 2003 by Kerr-McGee because his blog contained many comments
that the company viewed as inconsistent with his position as a
manager, including rants against his ex-wife (who also worked for
5
http://www.urbandictionary.com/define.php?term=dooced.
6
Amy J. Traub, Dooced, N.Y. EMPL. L. LETTER, vol. 14, no. 1, p. 1 (Jan. 2007).
7
At Morpheme Tales (http://morphemetales.wordpress.com/2006/10/19/statistics-on-firedblogger), blogger/journalist Curt Hopkins compiles an ongoing list of bloggers who have been fired,
disciplined or dropped from consideration for jobs because of their blogs.
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Kerr-McGee at the same facility), a comment that “the n-word was
sometimes deserved,” and the statement that “all [he] needed” to deal
with workplace violence was “a three-foot piece of stainless pipe” that
he kept behind his desk.

Ellen Simonetti, who blogged on Queen of the Sky, lost her job as a
Delta Air Lines flight attendant in 2004 after she posted what Delta
considered overly suggestive photographs of herself in her uniform
aboard one of the company’s planes.

Mark Jen, who blogged on Ninetyninezeros, fired from Google in
2005, eleven days into his employment, after he posted his comments,
based on nonpublic information, on the company’s financial results
and future products.

Jessica Zenner, who blogged on Inexcusable Behavior, fired from her
job as a technical recruiter at Nintendo, after she posted a deeply
personal tirade against one of her bosses.
Few dooced employees in America sue. (Several, however, have landed book
deals.8) Simonetti did, alleging sexual discrimination, but Delta filed for bankruptcy only seven
weeks after she commenced her action, bringing it to a sudden halt.9 At-will employees in this
country have little recourse when an employer takes exception to a blog, a topic discussed further
below. Contrast the remedies potentially available in other countries. Catherine Sanderson, an
English expatriate working in Paris, received €44,000 (roughly $60,000 at the time) in
8
Jeffrey S. Klein & Nicholas S. Pappas, When Private Sector Employer Fires Worker For
Blogging, N.Y. L.J., Feb. 5, 2007.
9
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See Simonetti v. Delta Air Lines, Inc., Case No. 1:05-cv-2321 (N.D. Ga.).
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compensation from her employer after being fired (or, as the Brits would say, “sacked”) from her
secretarial position in 2006 after her employer learned of her blog, Le Petit Anglais.10
Employer Interests & Concerns
Many have the perception that private employer restrictions on blogging raise a
free speech issue.11
The First Amendment, of course, does not apply to private sector
employment decisions.12
Private employers normally are not held to the constitutionally
imposed standards that protect free expression from government interference.
Instead, private employers operate within common law and statutory confines.
Employees either work under contract (including collective bargaining agreements) or at will.
The more common arrangement, at will employment, permits an employer to terminate
employment at any time and for any reason or no reason, with the exception that the reason may
not be an illegal one, such as unlawful discrimination.13 At will employment in New York does
10
English blogger wins wrongful dismissal case, The Telegraph, Mar. 30, 2007; Online
‘Bridget Jones’ diary gets secretary sacked, Daily Mail, July 19, 2006.
11
See, e.g., Bijal J. Patel, Comment, Myspace or Yours: The Abridgment Of The
Blogosphere At The Hands Of At-Will Employment, 44 Hous. L. Rev. 777 (2007) (arguing for use of First
Amendment to create a public policy exception to private sector at-will employment).
12
See, e.g., Myron v. Consolidated Rail Corp., 752 F.2d 50, 54 (2d Cir. 1985); Henderson
v. Center for Community Alternatives, 911 F. Supp. 689, 707 (S.D.N.Y. 1996); Engstrom v. Kinney
System, Inc., 241 A.D.2d 420, 424, 661 N.Y.S.2d 610, 614 (1st Dep’t 1997). The exception, of course, is
when a private employer’s conduct is able to satisfy the test for “state action” and thereby become fairly
attributable to the state. Further discussion of this topic is beyond the scope of this presentation.
See, e.g., State Div. of Hum. Rts. ex rel. Cottongim v. County of Onondaga Sherrif’s
Dep’t, 71 N.Y.2d 623, 630, 528 N.Y.S.2d 802 (1988); O’Connor v. Eastman Kodak Co., 65 N.Y.2d 724,
725, 492 N.Y.S.2d 9 (1985); Murphy v. American Home Products Corp., 58 N.Y.2d 293, 300, 461
N.Y.S.2d 232 (1983).
13
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not recognize any exception for discharges that allegedly violate public policy. 14 Nor does New
York recognize the tort of wrongful discharge.15
Employee bloggers may, wittingly or unwittingly, infringe a range of important
employer interests that should or must prompt a response from their employers.
For
convenience, these interests will be grouped into three broad categories: protecting an
employer’s confidences, protecting an employer’s reputation, and maintaining workplace morale
and discipline.
Protecting Confidences
Employers seek to protect many confidences that they consider vital to their
business operations: business plans, new product proposals, customer information, financial
results, and so on. The list of important confidences often varies among industries and even
among employers within an industry. Common to all employers, however, is the need to trust
their employees with those confidences during their employment. An employee’s common law
duty to loyalty to his or her employer includes the preservation of such confidences.16
Employee-bloggers pose a potential threat to the security of such confidences. An
employee-blogger easily can let a secret slip and thus launch into the blogosphere information
that his or her employer would prefer to keep confidential. An employer certainly can and
should take steps to protect these confidences.
17
In two areas the threat of disclosure poses
particular hazards.
14
See, e.g., Lobosco v. New York Tel. Co./NYNEX, 96 N.Y.2d 312, 316, 727 N.Y.S.2d 383
(2001); Murphy, 58 N.Y.2d at 301.
15
See, e.g., Chimarev v. TD Waterhouse Inv. Servs., Inc., 99 Fed. Appx. 259, 262 (2d Cir.
2004); Lobosco, 96 N.Y.2d at 316.
16
See, e.g., Ivy Mar Co. v. C.R. Seasons, Ltd., 907 F. Supp. 547, 556 (E.D.N.Y. 1995).
Cf. In re Claim of Gilbert, 254 A.D.2d 661, 679 N.Y.S.2d 452 (3d Dep’t 1998)
(upholding disqualification of employee from unemployment benefits because employee’s carelessness in
17
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Information related to financial results, or potentially revealing future changes in
those results (such as the progress of a potential new product), may create concerns under the
regulatory regime for publicly traded companies. The unauthorized release of information may
generate potential liability under the securities laws or force the company to issue an authorized
statement prematurely. The strong reaction of a company such as Google to the blogging of its
employee, Mark Jen, reflects, for example, this employer concern.
Trade secrets also demand employer vigilance. Deciding when an employer
confidence qualifies as a “trade secret” breeds fertile ground for litigation, but one constant in the
controversy lies in the need for an employer to demonstrate that it has taken steps to guard the
secrecy of the information at issue.18
Consistent with this crucial factor in trade secret
protection, several courts have refused to confer protection on information when it has been
released on to the internet.19 As one court observed:
The court is troubled by the notion that any Internet user, . . . can
destroy valuable intellectual property rights by posting them over
the Internet, especially given the fact that there is little opportunity
to screen postings before they are made. Nonetheless, one of the
Internet’s virtues, that it gives even the poorest individuals the
power to publish to millions of readers, can also be a detriment to
the value of intellectual property rights. The anonymous (or
violating employer’s confidentiality policy by divulging information about a prospective client that was
overheard by a third party).
18
See, e.g., Ashland Mgmt. Inc. v. Janien, 82 N.Y.2d 395, 407, 604 N.Y.S.2d 912 (1993)
(looking to Restatement of Torts, §757, cmt. b and its six factor test to measure the protectability of a
putative trade secret, which includes “the extent of measures taken by [the business] to guard the secrecy
of the information”); accord Softel, Inc. v. Dragon Med. Sci. Commc’ns, Inc., 118 F.3d 955, 968 (2d Cir.
1997).
19
See, e.g., Roman Chariot, LLC v. JMRL Sales & Serv., Inc., 2006 WL 4483165, at *6
(D.N.J. July 11, 2006); Hired Connectors, Inc. v. United States, 2006 WL 3618011, at **10-11 (C.D. Cal.
Jan. 25, 2006); DVD Copy Control Ass’n, Inc. v. Brunner, 116 Cal. App. 4th 241, 254-55, 10 Cal. Rptr.
3d 185, 194-96 (2004).
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judgment proof) defendant can permanently destroy valuable trade
secrets, leaving no one to hold liable for the misappropriation.20
Employers thus cannot ignore the risk posed by employee-bloggers, should they knowingly or
accidentally reveal trade secrets in their postings.
Protecting Reputation
An employee-blogger can post material that the employer finds embarrassing or
offensive. Blogger Michael Hanscom attributed his unemployment to this interest; a company
does not have to tolerate an individual who announces an “irony” that the company does not
wish to publicize. Likewise, the firing of Ellen Simonetti might be seen as a corporate decision
to disassociate itself from the manner in which she chose to present herself on-line, particularly
in her employer’s uniform. Could the employers have tolerated the approach these employeebloggers took? Certainly. But they had no obligation to do so.
An employer’s reputational interest extends beyond on-line activity that directly
impugns the employer’s business. It is sufficient that an employee-blogger projects a persona
with which the business does not want to associate.21 A federal court case in New Jersey,
Wiegand v. Motiva Enterprise, LLC,22 illustrates this point vividly. An employee who managed
Religious Tech. Ctr. v. NETCOM On-Line Commc’n Servs., Inc., 923 F. Supp. 1231,
1256 (N.D. Cal. 1995).
20
See, e.g., City of San Diego v. Roe, 543 U.S. 77, 81 (2004) (male police officer’s off-duty
business of selling sexually explicit materials over the internet in which he appeared in his uniform,
“brought the mission of the employer and the professionalism of its officers into disrepute”); St. Croix v.
Univ. of Colo. Health Servs. Ctr., 166 P.3d 230, (Colo. App. 2007) (hospital terminated female medical
resident after discovery on sexually explicit website of pornographic photos for which she posed before
she was hired because of its “concern for its reputation, the risk of losing the confidence of its patients,
and its assessment of the prospects of improving [her] performance as a surgical resident”); City of
Memphis v. Civil Service Comm’n, 216 S.W. 2d 311, 317 (Tenn. 2007) (police officer’s off-duty, sexually
explicit internet relationship with minor “reflect[ed] adversely on the City and its police department”);
Mapp v. Burnham, 23 A.D. 3d 37, 53, 800 N.Y.S. 137, 149 (1st Dep’t 2005) (Friedman, J., dissenting)
(arguing that public agency’s “vital interest in maintaining its reputation for integrity” justified
termination of employees), rev’d, 8 N.Y. 3d 999, 839 N.Y.S. 2d 439 (2007).
21
22
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295 F. Supp. 2d 465 (D.N.J. 2003).
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the convenience store at a gasoline station also operated a website marketing “quality Pro-White
products” and otherwise vigorously advocating a neo-Nazi point of view. When the employer
learned that a newspaper article had been published linking the employee to the website (but not
yet linking the employee to the employer), it fired him, despite his assertion that he did not
himself subscribe to the views set forth on his website. The court observed:
Plaintiff was a supervisor of the convenience store and was in
constant contact with the consuming public. Defendants justifiably
were concerned that if they allowed his employment to continue,
the public would learn of the views expressed on his website and
believe that defendants condoned such ideas. While the hate
materials was not associated with defendants’ brand at the time of
plaintiff’s termination, defendants, as private employers, still had a
very strong interest in regulating the speech of their convenience
store supervisor to ensure that it personified their values of respect
for all.23
As a cautionary tale, it should be noted that, despite this strong pro-employer statement, the
employer did not obtain summary judgment on all claims. The employee successfully argued
that a claim based on promissory estoppel should proceed to trial because, he contended, the
employer initially had “promised” to continue his employment if he took steps to disassociate
himself from the website business and to prevent further publicity. 24 This result underscores the
importance to an employer of focusing on its interests early and hewing to a course that best
advances them.
Employer reputational interests also can be implicated by the use of its
trademarks, or similar other intellectual property, on an employee-blogger’s site.
The
uncontrolled use of trademarks can create issues for future enforcement, including diminishment
of claims for blurring or tarnishment of the mark by others. An employer should actively police
23
Id. at 477.
24
Id. at 479-80.
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the unauthorized use of its marks by bloggers, as it previously would do when others
misappropriate such intellectual property.
Maintaining Morale and Discipline
The first two groups of interests address how the employer deals with the outside
world; morale and discipline, however, must be maintained within an employer’s workplace.
These interests can be threatened by employee-bloggers who use their forum to challenge the
authority, competence or personal qualities of their managers, or who engage in expression that
cannot be reconciled with their responsibilities within the organization.
Jessica Zenner’s
termination for her tirade against her boss fits the first category; the postings by Rob Smith that
were inconsistent with his managerial role fall into the second. Both employee-bloggers ignored
the potential impact of their postings on their future interactions in the workplace.
A recent public employment case, Curran v. Cousins,25 drives home this point.
The plaintiff, a corrections officer, posted extraordinarily inflammatory statements about his boss
– the Sheriff – to a public discussion board website. The court upheld the termination of the
plaintiff’s employment, noting that “[t]he statements here directly went to impairing discipline
by superiors, disrupting harmony and creating friction in working relationships, undermining
confidence in the administration, invoking oppositional personal loyalties, and interfering with
the regular operation of the enterprise.”26 These interests are hardly unique to public employers
or to law enforcement agencies. Every employer can and should concern itself with internet
postings that attack the cohesion of the workplace.27
25
509 F.3d 36 (1st Cir. 2007).
26
Id. at 50.
27
See, e.g., Niscosia v. Township of Belleville, 2005 WL 762161, at *4 (N.J. Adm. Mar. 2,
2005) (municipal employee posted comments on internet forum urging the killing of police officers;
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These interests also coincide with an employer’s interest in maintaining a
workplace free of discriminatory insult or ridicule. An employee-blogger, operating off duty,
could use an internet forum to directly attack or disparage other employees in terms that would
constitute illegal harassment if they occurred in the workplace. 28 While those attacks should be
insufficient by themselves to create employer liability, they certainly help to define a context for
judging workplace behavior and, if called to an employer’s attention, could provide an argument
for the affected co-workers that the employer ignored or condoned allegedly harassing
behavior.29
Additionally, a managerial employee-blogger may reveal aspects of his or her
attitudes or character that later could be used as evidence of illegal animus should that manager
render an employment decision that is challenged as discriminatory or retaliatory. Employers
accordingly should be concerned when employee-bloggers speak directly about their colleagues
and managers or about subjects that may reveal unlawful prejudices or intolerance.
Statutory Limits On Private Employer Options
Neither state nor federal governments have yet passed any law specifically
addressing employee blogging. Several statutes, however, impose indirect limits on employee
options. In New York, statutory protection for certain off-duty conduct might arguably provide
protection to employee-bloggers, but no case has yet held as much and thus far courts have
narrowly interpreted the statute.
although off duty conduct, it had a “tendency to disrupt morale and good working relationships among the
public servants of Belleville”), aff’d, 2007 WL 1437428 (N.J. Super. May 17, 2007).
Cf. Captain v. Mississippi Empl. Sec. Comm’n, 817 So. 2d 634, 636-38 (Miss. App.
2002) (employer concerned that manger’s off-duty emails and phone calls to female employees were
harassment).
28
29
The New Jersey Supreme Court alluded to such a linkage where attacks occurred on the
employer’s electronic bulletin board. See Blakely v. Continental Airlines, Inc., 164 N.J. 38, 751 A.2d 538
(2000).
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At the federal level, the primary statutory constraints lie in the National Labor
Relations Act, if the blogging qualifies as concerted activity, and the anti-discrimination statutes,
if the employer’s response to the blogging involves differential treatment based on a protected
class or can be characterized as retaliatory for the blogger’s opposition to discriminatory
practices or participation in certain proceedings related to a charge of discrimination. At the
state level, the New York Human Rights Law contains comparable anti-discrimination and antiretaliation protections and Labor Law Section 201-d, the off-duty conduct statute, protects
certain legal activities “outside of working hours, off of the employer’s premises, and without the
use of the employer’s equipment or other property.”30 Whistleblower statutes also exist at the
federal and state level, but they generally protect the reports of alleged wrongdoing only if the
reports follow established channels, such as to a supervisor or a public body like a regulatory
agency.31
Section 7 of the NLRA32 protects “concerted activity” by employees related to
union organizing. Use of the internet to facilitate union organizing activities, including criticism
of the employer, may receive protection under Section 7.33 Because internet communications
such as blogs communicate with third parties (potentially, the rest of the wired world), employee
communications will be considered protected if they pass a two-part test: (1) the communications
are related to an ongoing labor dispute; and (2) the communications are not reckless or
30
See N.Y. Lab. Law § 201-d(2)(a), (c).
31
See N.Y. Lab. Law § 740(2); see also Marsh v. Delta Air Lines, Inc.. 952 F. Supp. 1458,
1463 (D. Colo. 1997) (refusing to treat employee’s letter to newspaper as “whistleblowing” because he
did not utilize company’s internal complaint procedure).
32
29 U.S.C. § 157.
33
See, e.g., Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 882 (9th Cir. 2002) (applying
NLRA precedents to Railway Labor Act case to conclude that employee’s website could receive
protection); see also Eastex, Inc. v. NLRB, 437 U.S. 556, 566-67 (1978) (establishing principle that
employees can advance their interests “through channels outside the immediate employee-employer
relationship”).
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maliciously untrue, or are not detrimentally disloyal to the employer. 34 Thus, while an employer
must accord considerable leeway to labor-related blogging, action may be taken if the blog
devolves into disparaging attacks on the quality of an employer’s products or services and its
business policies.35
The anti-discrimination laws do not oppose any unique burdens on employers
with respect to blogging. As with other employment policies and decisions, the employer simply
must refrain from making a decision based on a protected class characteristic, such as sex or
race. Differential treatment may invite a claim of discrimination.36
The anti-retaliation protections likewise do not impose new or unique burdens on
employers with respect to blogging, with one exception. Consider the case of an employee who
has a complaint about discrimination, or files suit against his or her employer, then blogs about
it. Can the employer take action designed to stop the blogging, or is it protected activity that
would support a claim of retaliation? If blogging about the job otherwise is categorically
prohibited, the employee-blogger should not be insulated from discipline simply because an
accusation has been made or a charge is pending. The protection against retaliation does not
enlarge the employee’s rights in the workplace; it merely ensures equality of treatment.37
Another important consideration, if the blogging otherwise is permissible, would be the content
of the posts.38 Inappropriate or unreasonable content, even if part of an employee’s alleged
34
See NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464, 471-72
(1953); Endicott Interconnect Technologies, Inc. v. NLRB, 453 F.3d 532, 537 (D.C. Cir. 2006).
35
See Endicott Interconnect Tech., 453 F.3d at 537-38.
36
Ellen Simonetti, for example, claimed that Delta did not discipline or discharge male
employees who appeared in photographs on the internet dressed in their uniforms.
37
See, e.g., Brown v. Ralston Purina Co., 557 F.2d 570, 572 (6th Cir. 1977).
38
Of course, the opposition to discrimination must involve practices prohibited by Title VII
or other anti-discrimination statutes. See, e.g., EEOC v. Omni Hotels Mgmt. Corp., 516 F. Supp. 2d 678,
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opposition to discrimination, is not protected.39 While these precepts have has yet to be tested in
the courts in this context, it would seem that an employer need not tolerate blogging that includes
scurrilous personal attacks or the revelation of confidential business information.
State law holds the potentially most important limitation on blogging, although no
cases have tested the law in this area. Labor Law Section 201-d bans “[d]iscrimination against
the engagement in certain activities” that occur away from the workplace and outside working
hours. The statute, enacted into law in 1992 after Governor Cuomo vetoed two predecessor bills
in prior years, represents an example of “lifestyle discrimination” legislation that an unusual
coalition of civil libertarians, tobacco companies, and others have advocated in recent years.
New York is one of four states that have comprehensive “lifestyle discrimination” laws.40 The
705 (N.D. Tex. 2007) (Muslim employee expressing generalized concern in local media interviews that
his “faith was under attack” after the 9/11 attack did not engage in protected activity; “[v]ague concerns
and even vague assertions of discrimination are not sufficient to constitute opposition to an unlawful
employment practice”).
39
See, e.g., Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) (slapping a
supervisor in response to alleged sexual harassment is not protected activity); Rollins v. Florida Dep’t of
Law Enforcement, 868 F.2d 397, 401 (11th Cir. 1989) (complaints about discrimination must be
presented in a reasonable manner and by a reasonable method).
40
California, Colorado and North Dakota are the other three. Although some similarities
exist among the statutes, textual differences advise caution when using cases from these jurisdictions to
try to resolve questions in New York’s law. For broader discussions of these laws, including those
implications for blogging, see Rafael Gely & Leonard Bierma, Workplace Blogs And Workers’ Privacy,
66 LA. L. REV. 1079 (2006); Stephen D. Lichtenstein & Jonathan J. Darrow, Employment Termination
For Employee Blogging: Number One Tech Trend For 2005 And Beyond, Or A Recipe For Getting
Dooced?, 2006 UCLA J.L. & TECH. 4; Marisa Anne Pagnattar, What Do You When You Are Not At
Work? Limiting The Use Of Off-Duty Conduct As The Basis For Adverse Employment Actions, 6 U. PA. J.
LAB. & EMP. L. 625 (2004); Stephen D. Sugarman, “Lifestyle” Discrimination In Employment, 24
BERKELEY J. OF EMP. & LAB. L. 101 (2003); Shelbie J. Byers, Note, Untangling The Worldwide Weblog:
A Proposal For Blogging, Employment-At-Will, And Lifestyle Discrimination Statutes, 42 VAL. U. L.
REV. 245 (2007); John S. Hong, Comment, Can Blogging And Employment Co-Exist?, 41 USF L. REV.
445 (2007); Aaron Kirkland, Note, “You Got Fired? On Your Day Off?!”: Challenging Termination For
Personal Blogging Practices, 75 UMKC L. REV. 545 (2006); Tracey Watson & Elisabeth Piro, Note,
Bloggers Beware: A Cautionary Tale Of Blogging And The Doctrine Of At-Will Employment, 24
HOFSTRA LAB. & EMPL. L.J. 333 (2007).
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treatment of bloggers by employers now is an important part of the lobbying effort on behalf of
such legislation.41
New York’s law provides protection to “political activities,” union membership,
legal use of consumable products, and “legal recreational activities” when the employee engages
in the activity “outside of working hours, off of the employer’s premises, and without the use of
the employer’s equipment or other property.”42 These activities are not absolutely protected; an
employer can take action against an employee if the employee’s activities fall within one of the
law’s exemptions.43
Illegal lifestyle discrimination, however, can be the subject of an
enforcement action by the State44 or an action by an aggrieved individual for equitable relief and
damages.45
Defined terms take on great significance in judging the scope of the law.
“Political activities” focuses on support for candidates, with the exception that participation in
fund-raising activities for a political party or a political advocacy group receives protection.46 It
would appear that a blogger who engages in pure issue advocacy, without regard to supporting a
candidate or raising funds for a political party or cause, would not warrant the law’s protections.
“Legal recreational activities” potentially broadens the reach of the law
considerably. The term is defined as “any lawful, leisure-time activity, for which the employee
receives no compensation and which is generally engaged in for recreational purposes”47 – which
41
National Workrights Institute, LIFESTYLE DISCRIMINATION: EMPLOYER CONTROL OF
(undated).
LEGAL OFF DUTY EMPLOYEE ACTIVITIES
42
See N.Y. Lab. Law § 201-d(2).
43
See id., § 201-d(3).
44
See id., § 201-d(6).
45
See id., § 201-d(7).
46
See id., § 201-d(1)(a).
47
See id., § 201-d(1)(b).
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potentially could cover many activities, including blogging, in many cases48 – with the additional
phrase “including but not limited to sports, games, hobbies, exercise, reading and the viewing of
television, movies and similar material.”49
It has been suggested that this list of specific
activities should be viewed as illustrative and not be construed to narrow the scope of the
statutory protection,50 but the currently controlling case law instead applies the doctrine of
noscitur a sociis to use them as limiting the scope of the law to activities that resemble those
listed.51 An argument certainly could be made to group blogging with the enumerated examples;
blogging also can be distinguished from the list inasmuch as reading and watching television or
movies are receipt of information activities, not the dissemination of information, with its
attendant risks, like blogging. The New York Court of Appeals, however, has not weighed in,
and, if presented with the issue, could place a broader interpretation on the term “recreational
activities” than thus far conferred by other courts.52
Were Section 201-d extended to protect blogging, employers certainly would not
be without rights to deal with employee-bloggers. The statute exempts activity that otherwise
fits within the definition of protected conduct but which “creates a material conflict of interest
The “receives no compensation” qualifier would appear to exclude any employee-blogger
who generates revenue through advertising or who markets goods and services – such as the plaintiff in
Wiegand. See, e.g., Cheng v. New York Tel. Co., 64 F. Supp. 2d 280, 285 n.2 (S.D.N.Y. 1999)
(excoriating the plaintiff for offering “the patently frivolous argument” that the statute protected him from
discharge when his off-duty conduct was “installation of telephone equipment for personal profit”).
48
49
See N.Y. Lab. Law § 201-d(1)(b).
50
See, e.g., Pasch v. Katz Media Corp., 10 IER Cas. (BNA) 1574, 1995 WL 469710, at
**2-5 (S.D.N.Y. Aug. 8, 1995).
51
See McCavitt v. Swiss Reins. Am. Corp., 237 F.3d 166, 168 (2d Cir. 2001); State of New
York v. Wal-Mart Stores Inc., 207 A.D.2d 150, 152, 621 N.Y.S.2d 158, 160 (3d Dep’t 1995).
52
See McCavitt, 237 F.3d at 169 (McLaughlin, J., concurring) (urging the New York Court
of Appeals to broaden the statute’s scope to include “dating” as protected activity).
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related to the employer’s trade secrets, proprietary information, or business interest.” 53 This
exemption was among the important changes to previous, vetoed bills that persuaded Governor
Cuomo to approve the current law in 1992.54 The exemption has not been much construed in the
courts and little guidance can be gleaned from the reported cases. 55
The language of the
exemption, however, clearly tracks one category of an employer’s interests in regulating
employee blogging. It should not be difficult for prudent employers to develop a legitimate basis
to fit within this exemption.56
Another exemption refuses to protect activity that “violates a collective
bargaining agreement or a certified or licensed professional’s contractual obligation to devote his
or her entire compensated working hours to a single employer,” provided the professional
receives compensation equivalent to $50,000 per year in 1992, as adjusted by the consumer price
index in subsequent years.57
The statute further authorizes employers to take employment actions based on
their “belief” that “the individual’s actions were deemed by an employer or previous employer to
See N.Y. Lab. Law § 201-d(3)(a). “Conflict of interest” is not further defined. In other
settings, the term usually implies some form of personal gain. See, e.g., Coppola v. Polan, 177 A.D. 2d
398, 399, 576 N.Y.S. 2d 141, 142 (1st Dep’t 1991); see also Reese v. AIDS Inst. NYS Dep’t of Health, 112
F.3d 505, 1996 WL 560750, at *1-2 (2d Cir. 1996) (unpublished opinion); Fatland v. Quaker State Corp.,
62 F.3d 1070, 1073 (8th Cir. 1995); Marsh, 952 F. Supp. At 1464.
53
54
See Pasch, 1995 WL 469710, at **4-5.
See Berg v. German Nat’l Tourist Office, 248 A.D.2d 297, 298, 670 N.Y.S.2d 90 (1st
Dep’t 1998) (stating in conclusory fashion that “it would still be clear, as a matter of law,” that the
exemption applied).
55
56
The statute does not articulate where the burdens of proof lie. Employers should expect
that, as an exemption to statutory protections, the courts may place the burden on them to demonstrate the
materiality of the conflict and the legitimacy of the business interests, trade secrets, or proprietary
information. See Aquilone v. Republic Nat’l Bank of N.Y., 1998 WL 872425, at *6 n.3 (S.D.N.Y. Dec. 15,
1998) (suggesting that defendants would have to prove the existence of material conflict of interest).
57
See N.Y. Lab. Law § 201-d(3)(e). In 2007 dollars, the figure would be approximately
$74,000. See U.S. Dep’t of Labor, Bureau of Labor Statistics, Inflation Calculation (www.bis.gov/cpi).
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be illegal or to constitute habitually poor performance, incompetency or misconduct”58 or that
the employer’s “actions were required by statute, regulation, ordinance or other governmental
mandate.”59 These “belief” immunities would seem to embrace an employer’s need to take
action when an employee-blogger posts entries that might, for example, constitute
insubordination or increase the employer’s exposure under the anti-discrimination statutes.60
In the end, it appears that a prudent and careful employer can protect itself from
liability under Labor Law Section 201-d if it acts against an employee-blogger for one of the
reasons described as an employer interest in regulating blogging. The statute may have some
impact in deterring more arbitrary reasons to employee blogging or internet use, but it does not
erect a substantial barrier in the main.
Means & Strategies To Address Off-Duty Conduct
Employers face different challenges depending upon whether an employee blogs
openly, providing an easy means to identify someone who has overstepped his or her bounds, or
an employee acts anonymously or pseudonymously, concealing his or her real identity. Open
blogging should be addressed with a clear policy and active enforcement. Anonymous blogging
imposes additional burdens and, in some cases, may escape an employer’s pursuit.
Employers should set forth their expectation and regulations regarding employee
off-duty internet use through an appropriate policy. Such a policy may be part of a broader
technology-use policy that addresses all media (email, instant messaging, internet browsing, etc.)
58
See id. § 201-d(4)(iii).
59
See id., § 201-d(4)(i).
In a case under Colorado’s law, a federal district court concluded that a letter to the editor
at a newspaper of an “insubordinate nature” violated the employee’s duty of loyalty to his employer and
this was not protected by Colorado’s off-duty conduct statute. Marsh, 952 F. Supp. at 1464.
60
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at work and off duty, or it can stand alone as a policy focused on blogging or off-duty conduct.61
The elements of a policy on blogging should include:
(1)
A clear statement of what is prohibited, such as:
-
disclosure of confidential or proprietary information
-
use of the employer’s intellectual property (e.g., trademarks)
-
infringement on the intellectual property rights of others
-
statements adversely affecting the employer’s interests or reputation
-
criticism of customers or other important business partners
-
statements supporting competitors
-
defamatory, harassing or disparaging content
-
content that violates the law, such as obscenity
-
content that would constitute a violation of any other policies, rules,
standards of content, or requirements applied by the employer to its
employees
(2)
A clear statement of what is permitted or required, such as disclaimers of
affiliation or endorsement by the company, if it is mentioned or otherwise
identifiable
(3)
Descriptions, with examples as necessary, of inappropriate content.
The policy can and should express the employer’s preference about blogging, if any. Some firms
in the technology field, or that are particularly savvy in the internet area, may want to encourage
employee blogging, as, for example, Sun Microsystems has done in its policy.62
If that
preference is expressed, the employer should understand that it will expose itself to arguments
61
IBM recently promulgated a policy specifically addressing employee conduct in virtual
worlds, known as the Virtual World Guidelines. Essentially, IBM instructs its employees to follow its
policies, particularly its Business Conduct Guidelines, when engaged in virtual world interactions. The
guidelines can be found at http://domino.research.ibm.com/comm/research-projects.nsf/pages/
virtualworlds.IBMVirtualWorldGuidelines.html.
62
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along the line of the promissory estoppel claim asserted in Wiegand, should it try to turn a sharp
corner to curtail blogs that may not clearly violate its policy. Whether such arguments prevail is
an entirely different matter; the risk simply increases when the employer appears to encourage
behavior that it later decides to end or curtail.
Any policy will face difficulty in curtailing anonymous blogging and anonymous
contributions to the blogs of others. Piercing the veil of anonymity can present a high hurdle to
clear.
Courts have taken the view that anonymous speech on the internet constitutes a
continuation of the American traditions that lie at the heart of the First Amendment.63 While
tortious speech does not itself merit protection, courts will not force disclosure of the identity of
an anonymous critic without being convinced that a meritorious claim drives the attempt to
unmask the critic. A consensus seems to be forming that requires proof akin to a showing that
the moving party would be able to obtain summary judgment on its claims (insofar as proof is
within its ability to obtain at the outset of a litigation) in order to obtain an order compelling
disclosure of the identity of an anonymous internet speaker.64 Additionally, if the information
sought is not the identity of an anonymous blogger but rather the identity of an unnamed source
who provided information to a blogger or internet publication, state laws governing the privilege
of journalists to protect sources may come into play.65
63
See, e.g., Sony Music Ent., Inc. v. Does, 326 F. Supp. 2d 556, 562-63 (S.D.N.Y. 2004);
Doe v. Cahill, 884 A.2d 451, 455-56 (Del. 2005); Greenbaum v. Google, Inc., 18 Misc.3d 185, 845
N.Y.S.2d 695, 698 (Sup. Ct. N.Y. Cty. 2007).
McMann v. Doe, 460 F. Supp. 2d 259, 266-67 (D. Mass. 2006); Best Western Intl’, Inc. v.
Doe, 2006 WL 2091695, at **4-5 (D. Ariz. July 25, 2006); Sony Music, 326 F. Supp. 2d at 564-66;
Cahill, 884 A.2d at 462-63; Dendrite Int’l., Inc. v. Doe, 775 A.2d 756, 760 (N.J. App. Div. 2001).
64
See, e.g., O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1456-79 44 cal. Rptr. 3d
72, 96-115 (2006).
65
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An employer’s reaction to employee blogging, it should be remembered, demands
business judgment, not merely as a legal basis to act. Too strong of a response may generate
unwanted and bad publicity. An aggressive pursuit of an anonymous blogger, or a blogger’s
anonymous sources, likewise may sully a company’s reputation.66
Conclusion
Employers have many legitimate interests that are implicated by employee offduty blogging and internet use. Legal restrictions at the present do not pose significant barriers
to protection of those interests, although advocates of “lifestyle discrimination” protections lobby
to improve employee statutory protections. Employers best serve their interests by developing
and enforcing clear policies to apprise employees of the “dos and don’ts” of blogging, and by
exercising sound judgment in enforcing those policies when problems arise.
66
Apple, for example, got characterized as a bully for its dogged pursuit of leaked secrets.
In one recent case, it abandoned its pursuit of information about the misappropriation of trade secrets
from one website in exchange for the operator’s agreement to shut down. See Blogger and Apple settle
lawsuit, L.A. Times, Dec. 21, 2007.
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