Wait! Don't Fire That Blogger! What Limits Does Labor Law Impose on Employer Regulation of Employee Blogs?

• Jurisdiction: United States,Federal
• Publication year: 2021
• Citation: Vol. 2 No. 3

Shidler Journal of Law, Commerce & Technology Volume 2, Issue 3, Autumn 2005

Constitutional & Regulatory

Cite as: Carson Strege-Flora, Wait! Don't fire that blogger! What Limits Does Labor Law Impose on Employer Regulation of Employee Blogs?, 2 Shidler J. L. Com. & Tech. 11 (Dec. 16, 2005), at [http://www.lctjournal.washington.edu/Vol2/a011Strege.html]

Wait! Don't fire that blogger! What Limits Does Labor Law Impose on Employer Regulation of Employee Blogs?

by Carson Strege-Flora(fn1)

(c) 2005 Carson Strege-Flora

Abstract

The Ninth Circuit Court of Appeals recently issued a decision protecting the right of an employee to post critical comments about his employer on a website. The court found that the employer's discipline was an unfair labor practice prohibited by federal labor law because it was "concerted activity" protected by the National Labor Relations Act (NLRA). Employers wishing to discipline employees for their public blogging activity should be familiar with the protections provided by the NLRA. This Article explores the consequences for violating the Act and addresses what employers should consider when attempting to limit employee blogging.

Table of Contents

Introduction Labor laws limit discipline of problem bloggers Using personnel policies to prevent problem blogging Relying on property rights may not be a solution for employers Employer penalties for violating the NLRA Conclusion Practice Pointers

Introduction

[1] He does his dirty work like the Nazis during World War II . . . he's suspected of fraud . . . he's incompetent at the top. These are not the type of comments an employer likes to hear from one of its employees. However, these statements, describing the president of Hawaiian Airlines, were recently found on an employee's website. The company took disciplinary action against the employee. In the suit that followed, the Ninth Circuit Court of Appeals reversed a lower court's ruling and held that the website was an expression of the employee's protected right to engage in union organizing activity under federal labor law,(fn2) despite the website's strong anti-employer language.(fn3) Therefore, the company was unable to discipline him for his comments and moreover, was subject to discipline itself for violating the employee's rights.

[2] As blogs, which are a type of website that is a serial, frequently updated, personal journal typically reflecting the author's personality, continue to rise in popularity, more workers are using them to comment publicly about their employers' wages, benefits, and working conditions.(fn4) Today, many labor unions are investing heavily in new technology that provides its members access to blogs. Unions are increasingly targeting service sector employees, who are generally more computer-literate than the industrial workers who were the primary focus of labor organizing for much of the twentieth century.

[3] The Service Employees International Union, the nation's largest and fastest growing union, has blogging technology available free of charge to each of its local unions across the country. In 2004, it became the first major union in the country with a blog.(fn5) Similarly, employees at Target now have a blog on which they post questions and comments about wages, benefits, working conditions, and the pros and cons of forming a labor union.(fn6) Employers have begun to take action against employees that are blogging disparagingly about the employer. However, disciplining an employee for blogging about the company may run afoul of the National Labor Relations Act ("NLRA") if the employee is engaged in activity protected by the statute.(fn7) Before disciplining employees, employers should ensure that their actions will not be considered an unfair labor practice, a penalty that can be applied by the National Labor Relations Board ("NLRB") regardless of union presence.

Labor laws limit discipline of problem bloggers

[4] The increase in employee blogging has added new concerns for employers who are conscious of their public image. In the past, disgruntled employees might complain to their friends and family about their dissatisfaction with the company...