The increasing use by employees of personal blogs and social networking sites like Facebook and MySpace to “vent” or criticize their employers has caused some employers to take steps to control what is published about their companies in the public domain.  Some companies have begun monitoring their employees’ web postings and requiring employees to remove posts and pictures that are defamatory, offensive, inappropriate or critical of management.  While employers may find it necessary to take action against an employee due to the nature of a particular post, employers must remember that employees are entitled to express themselves via the web.

Certain monitoring practices could make it difficult for employers to defend against an employee’s claims of discrimination or invasion of privacy.  An employer who learns about an employee’s sexual orientation, age, or other protected characteristic after viewing the employee’s Facebook or MySpace page, and subsequently terminates or takes some other adverse employment action against the employee, may find it difficult to prove the action was taken on the basis of legitimate non-discriminatory reasons.  Any censorship could also run afoul of Section 7 of the National Labor Relations Act, which protects employees’ rights to form and join labor organizations, and engage in collective bargaining and concerted activities for mutual aid or protection.  Finally, while an employer can terminate an employee for printing defamatory statements about the company on his or her personal blog or website, the company could potentially face liability for the means used to access the information, e.g., coercing a third party to provide password access to a restricted site or using spyware to retrieve passwords from an employee’s computer.   

Employers should draft specific policies regarding the company’s position on blogging and social networking sites and detailing the topics that employees cannot blog about.  Adding the terms “social media” and “social networking sites” to existing confidentiality policies can help limit or prevent discussion of proprietary or other company information on the web.  Finally, employers should encourage employees to voice workplace concerns to management or human resources.  Companies are often able to prevent public discussion of employee discontent by engaging their employees in meaningful dialogue about ways to improve the workplace.