Social isolation and American workers: employee blogging and legal reform.

• Author: Gely, Rafael

TABLE OF CONTENTS I. INTRODUCTION II. BLOGS: A PRIMER III. SOCIAL ISOLATION IN AMERICA A. The Decline in Interpersonal "Connectedness" B. The Workplace as a Nexus of Interpersonal Connectivity C. The Law and Declining Workplace Connectivity IV. BLOGGING AS A GENERATOR OF EMPLOYEE CONNECTIVITY V. EMPLOYEE BLOGGING AND THE NATIONAL LABOR RELATIONS ACT A. Overview B. Blogs as Concerted Activity C. Blogs as Involving Mutual Aid or Protection D. Blogs as Abusive, Insubordinate, or Disloyal Conduct E. Employers' Interests Under the NLRA. F. Summary VI. STATE LAW PROTECTIONS FOR EMPLOYEE BLOGGERS A. State Common Law B. State Statutory Protections VII. POSSIBLE AVENUES FOR REFORM: THE APPEALING "BRIGHT LINES" OF STATE LEGISLATIVE ACTION A. Overview B. NLRA Reform C. State Common Law Reform D. State Legislative Reform of Off-Duty Conduct Statutes VIII. JUSTIFYING THE PROTECTIONS AFFORDED TO EMPLOYEES WHO BLOG IX. CONCLUSION I. INTRODUCTION

For many employees, blogs have become "virtual union halls" where employees can connect, building social ties and reducing the isolation inherent in present-day American life. (1) Employees, even extremely busy ones like investment bankers or attorneys, (2) can use off-duty blogging (3) to easily communicate and connect with fellow employees. Blogs allow employees to discuss a broad range of topics, both work-related4 and personal, and create a sense of community with their co-workers. (5) Therefore, we believe, off-duty employee bloggers deserve legal protections commensurate with their roles as builders of social communities.

American workers, and indeed Americans generally, are becoming increasingly socially isolated. (6) A recent empirical study conducted by Professors Miller McPherson, Lynn Smith-Lovin, and Matthew Brashears found a precipitous decline over the past two decades in the number of confidants with whom Americans discuss important matters. (7) The number of people saying there was no one with whom they discussed important matters more than doubled, and, increasingly, even those who had a confidant frequently had only one--their spouse. (8)

In 1985, about thirty percent of people had at least one confidant among their co-workers. (9) That proportion fell to only eighteen percent in 2004. (10) The McPherson study supports the notion that conversation in the workplace is more superficial than it once was. (11) Younger workers (aged eighteen to thirty-nine) are seeking a broader range of less intense relationships. (12) The McPherson study specifically points to the role new technologies have played in changing the communication patterns of Americans, particularly the young. (13) Such technologies "may foster a wider, less-localized array of weak ties, rather than the strong, tightly interconnected" ties traditionally observed. (14) While this development may not be entirely negative, the study recommends further examination of the ways in which such technologies can foster stronger social connections. (15)

The McPherson study builds upon prior research in this area, especially the work of Professor Robert Putnam.16 Using descriptive statistics, Putnam argues that "social connectedness" in the United States has sharply declined in recent decades. (17) Putnam points to an increase in the number of dual-career families, (18) increased geographic mobility, (19) long commutes to work, (20) and the near abolition of private sector unionization (21) as evidence of this phenomenon.

Though Putnam's work has been criticized, (22) he was recently vindicated by similar findings in the comprehensive McPherson study. Putnam himself noted that the study reinforces much of what he previously reported, while leaving open the "interesting" question of how the Internet can be used "to strengthen and deepen relationships we have offline." (23)

The ability of blogs to serve such a community-building function has been called into question, as the rights of employees who blog outside of work have come under increased scrutiny. In recent years, various high-profile instances of employees being fired for material posted on their blogs have raised serious questions about the legal protections available to employees who blog. (24) Although it is not widely recognized, (25) most employees in the United States are "employees-at-will"--that is, they can be fired by their employers at any time for essentially any reason, or for no reason at all. (26) As a result, employers have generally been legally free to fire employees for even off-duty blogging. (27)

The most comprehensive statutory protection currently afforded employee bloggers is provided by the 1935 National Labor Relations Act ("NLRA"), which gives workers the right to form private sector unions. (28) For a variety of reasons, however, the NLRA is proving ineffective in protecting the rights of employee bloggers. (29) This Article further demonstrates that state common law exceptions to the employment-at-will doctrine are not providing significant redress to employees fired or otherwise disciplined for blogging. (30) Despite the many possible social benefits of employee blogging, employees currently engage in such activity at their peril.

Part II of this Article presents a review of blogs and the blogging phenomenon. Part III examines the problems described in Professor Putnam's work and the McPherson study, paying particular attention to the special place employment and the workplace have in the social connectedness story. Part IV analyzes the potential for blogs to address these problems within the employment context. Part V details the protections afforded to employee bloggers under the NLRA. Part VI then examines the issue of employee off-duty blogging in the context of both state common law and state statutory law.

Parts VII and VIII review various options for legal reform in this arena, and ultimately recommend specific state legislative action as the most effective solution. The template for such reform already exists. Over the past three decades, a majority of states have enacted statutes protecting a few specific employee off-duty activities. (31) Among other things, this Article recommends that states should amend off-duty conduct statutes to provide explicit protection for off-duty employee blogging. (32)

2. BLOGS: A PRIMER

   A BLOG, YOU SEE, IS A LITTLE FIRST AMENDMENT MACHINE. (33)

   Blogs have become a very important part of American life and culture. (34) Millions of Americans have blogs, and that number continues to increase. (35) The Merriam-Webster Dictionary defines a blog as "a Web site that contains an online personal journal with reflections, comments, and often hyperlinks provided by the writer." (36) While not incorrect, this definition is by no means complete. In fact, the very incompleteness of the definition reflects the quickly changing nature of the blogosphere.

   Not long ago, blogs were associated with personal online diaries "typically concerned with boyfriend problems or techie news." (37) Writing about his early experiences in blogging, Andrew Sullivan noted that most blogs were "quirky, small, often solipsistic enterprises." (38) He singled out the site of an early blog pioneer for discussing "among other things, his passion for sex and drugs," (39) and summarized his early impressions of blogs by noting that "reading them is like reading someone else's diary over their shoulder." (40)

   At some point after September 11, 2001, however, some blogs became more than an "endless stream of blurts about the writer's day." (41) According to Sullivan:

   [My] blog almost seemed designed for this moment. In an instant, during the crisis, the market for serious news commentary soared. But people were not just hungry for news, I realized. They were hungry for communication, for checking their gut against someone they had come to know, for emotional support and psychological bonding. In this world, the very personal nature of blogs had far more resonance than more impersonal corporate media products. Readers were more skeptical of anonymous news organizations anyway, and preferred to supplement them with individual writers they knew and liked. (42) This account suggests that the dramatic events of the first few years of this decade inspired a demand not only for information, but for a more interactive and personal way of communicating--one that generated trust. Blogs satisfied that demand. (43)

   At the same time, blogs gained social and political clout. (44) Between 2002 and 2004, this newfound power was illustrated by several important events. Blogs played a major role in the resignations of Trent Lott as United States Senate majority leader and Howell Raines as executive editor of The New York Times. (45) Law professor, political commentator, and blogger Hugh Hewitt refers to these events as "blog swarms," noting: "When many blogs pick up a theme or begin to pursue a story, a blog swarm forms. A blog swarm is an early indicator of an opinion storm brewing, which, when it breaks, will fundamentally alter the general public's understanding of a person, place, product, or phenomenon." (46) Sensing blogs' increasing importance, both major political parties made them important components of their 2004 presidential campaigns. (47)

   What factors might explain the ability of blogs to inspire so much trust, thereby attracting the broad participation necessary to wield such power? Commentators have suggested that the answer lies not in the content of blogs, but in their format. In particular, three aspects of blog format have played an important role in blogs' fast-growing influence: reverse chronological order, transparency through direct links to source material, and interactivity.

   Unlike most earlier bulletin boards and discussion groups, blogs usually arrange posts in reverse chronological order, with the most recent material at the top where the reader can view it most easily. By naturally drawing attention to new...