An Exercise for Teaching the Employment Law Implications of Employee Blogging

• Date: 01 August 2009
• Author: Tara N. Stephenson,Konrad S. Lee,Jared Oldham,Matthew I. Thue
• DOI: http://doi.org/10.1111/j.1744-1722.2009.01061.x
• Published date: 01 August 2009

An Exercise for Teaching the

Employment Law Implications of

Employee Blogging

Konrad S. Lee,

n

Matthew I. Thue,

nn

Jared Oldham,

nnn

and

Tara N. Stephenson

nnnn

Matthew Brown

Matthew Brown worked as supervisor at Starbucks and maintained a

personal blog as a way to keep in touch with his family and friends. One

night, after Brown’s manager refused to let him go home sick, he

‘‘sounded off ’’ about the situation on his blog. When Starbucks discov-

ered the critical remarks, Brown was terminated.

1

Michael Hanscom

Michael Hanscom worked at Microsoft’s print shop and maintained

an active blog as an online journal. While he was at work, Hanscom noticed

a shipment of Apple G5 computers being delivered to a Microsoft loading

dock. He was amused by the situation and took a picture of the delivery.

Hanscom later posted the picture on his personal blog under the title

‘‘Even Microsoft wants a G5.’’ Microsoft discovered the photographs and

dismissed Hanscom immediately.

2

r2009, Copyright the Authors

Journal compilation rAcademy of Legal Studies in Business 2009

399

Journal of Legal Studies Education

Volume 26, Issue 2, 399–431, Summer/Fall 2009

n

Associate Professor of Law, Jon M. HuntsmanSchool of Business, Utah State University. B.A.,

University of Calgary, M.B.A. and J.D., Brigham Young University.

nn

Attorney at Law, B.S., Utah State University, J.D., University of Utah.

nnn

Consultant, Utah Small Business Development Center, Utah State University, B.S. and

M.B.A., Utah State University.

nnnn

Principal, T-Squared Consulting Group, B.S., Utah State University.

1

Pat Briefer & Sean O’Shea, When Does Criticizing and Employer Becomea Firing Offense?,NAT’LPOST

&GLOBAL NEWS, Sept. 3, 2004, available at http://blogcritics.org/archives/2004/90/04/141004.php.

2

Jon Bonne

´,Blogger Dismissed from Microsoft, MSNBC, Oct. 30, 2003, http://www.msnbc.

msn.com/id/3341689.

Jeremy Wright

Jeremy Wright worked for Manitoba Health Services and published

the following blog post while the server at the company’s office was down

due to a virus: ‘‘Getting to surf the web for 3 hours while being paid:

Priceless. Getting to blog for 3 hours while being paid: Priceless. Sitting

around doing nothing for 3 hours while being paid: Priceless. Installing

Windows 2000 Server on a P2 300: Bloody Freaking Priceless.’’

3

When

Wright’s supervisor discovered the blog, Wright was fired.

4

I. INTRODUCTION

The framework for teaching employment law to college students must in-

clude sensitivity to the impact of new media

5

on the legal environment of

business. Unlike most professors, the average college student began using

computers before they entered elementary school.

6

Now, more than

eighty-five percent of students own a computer, ninety-four percent of

students use the Internet daily, and more than a third of students spend

ten hours or more a week ‘‘surfing the net.’’

7

Many college students also

actively contribute to the web of information available online though In-

ternet bulletin boards, groups, chat rooms, and blogs.

8

In 2006, twenty-

two percent of surveyed college students reported that they maintained

3

Ensigt.org, Priceless,http://www.ensight.org/archives/2004/05/11/priceless (last visited Nov. 7,

2008).

4

Ensigt.org, The Whole Story, http://www.ensight.org/archives/2005/01/06/the-whole-story-

or-as-much-as-i-know-anyways (last visited Nov. 7, 2008). See also Kate Lorenz, Avoid getting

fired for blogging, CNN.COM, Apr. 6, 2005, http://www.cnn.com/2005/US/Careers/04/05/blog-

ging/index.html.

5

For this article’s purposes ‘‘new media’’ refers to digital, computerized, or networked com-

munication technologies developed in the late 20th century.

6

STEVE JONES,PEW INTERNET AND AMERICAN LIFE PROJECT,THE INTERNET GOES TO COLLEGE;HOW

STUDENTS ARE LIVING IN THE FUTURE WITH TODAY’STECHNOLOGY (2002), available at http://

www.pewinternet.org/pdfs/PIP_College_Report.pdf.

7

Veronica Low, Study: College Students’Internet Use,IMEDIA CONNECTION, July 20, 2006, http://

www.imediaconnection.com/news/10466.asp; Debra Aho Williamson, College Students Embrace

the Web,IMEDIA CONNECTION, Feb. 10, 2006, http://www.imediaconnection.com/content/

8237.asp; BURSTMEDIA, ‘‘LOOKING TO REACH COLLEGE STUDENTSFLOOK ON-LINE (2007),

http://www.burstmedia.com/assets/newsletter/items/2007_07_01.pdf.

8

Low, supra note 7.

400 Vol. 26 / The Journal of Legal Studies Education

personal blogs.

9

A largerFand rapidly expandingFpercentage of stu-

dents maintain profiles on social networking sites like Myspace and Face-

book, which also allow users to publish information online.

10

The freedom to instantly transmit uncensored information to a

worldwide audience is opening new doors for creative business students

who now have a platform to introduce their ideas to the world. However, as

the stories introducing this paper demonstrate,

11

this pedestrian access

12

to Internet publication has also created new legal pitfalls which can cause

problems for employers and employees alike.

13

An understanding of legal

issues associated with sharing information or opinions about an employer

online, therefore, has become vital to the undergraduate business student’s

education.

This article is a tool to help instructors introduce students to the in-

tersection of blogging and employment law. Section II provides source

materials on the subject. Specifically, it presents a summary overview of: (1)

the development of blogging and other forms of online user generated

content; (2) the legality of terminating an at-will employee for maintaining

a blog; (3) the legality of terminating an employee for posting critical or

confidential information on the Internet in violation of the employee duty

9

Id.

10

See TOM H.C. ANDERSON,ANDERSON ANALYTICS’GENX2Z AMERICAN COLLEGE STUDENT BACK TO

SCHOOL SURVEY 2007 (2007). In fact, in 2007, surveyed students named Facebook.com as their

favorite Web site. Id. Myspace.com was the third most popular Web site. Id.

11

See Scott R. Grubman, Think Twicebefore you Type: Blogging your Way to Unemployment,42GA.

L. REV. 615, 627 (2008) (‘‘Other well-known ‘doocing’ victims include Gregg Easterbrook

(ESPN), Michael Hanscom (Microsoft), Peter Whitney (Wells Fargo), Daniel Finney (St. L ouis

Post-Dispatch), Mark Jen (Google), Steve Olafson (Houston Chronicle), . . . Justin Winokur

(Apple Computer), and Ellen Simonetti (Delta Airlines).’’).

12

For a discussion of how simple it is to create a blog, see Barry D. Bayer, Open Software and Be

a Blogger,L

AW OFF.TECH.REV., Apr. 30, 2002, available at 2002 WL 1765111. In 2002, it took

the author of that article ten minutes to create a blog on Blogger.com. Our personal expe-

rience suggests that improvements to the user interface make the process even less time con-

suming now. See also Paul S. Gutman, Say What?: Blogging and Employment Law in Conflict,27

COLUM. J.L. & ARTS 145, 145 (2003) (‘‘[B]logging is easier than sending an e-mailFwith no

addresses to type or recallFand accompanying liabilities increase as a result.’’).

13

See Katherine M. Scott, When is Employee Blogging Protected by Section 7 of the NLRA?, 2006

DUKE L. & TECH.REV.17 (2006) (citing PROOFPOINT,OUTBOUND EMAIL AND CONTENT SECURITY IN

TODAY’SENTERPRISE 2 (2006) (report finds that 7.1 percent of the large U.S. companies sur-

veyed had fired at least one employee for violating blog or message board policies in the past

year)).

2009 / Teaching the Employment Law Implications 401