joegratz.net

I’m liveblogging from Blog Law and Blogging for Lawyers, presented by Law Seminars International.

Raymond H. Hixson, Jr.:

The law may restrict an employer’s regulation of blogging (privacy, whistleblower laws, discrimination laws), and the law may impose some affirmative obligations to regulate blogging (harassment, trade secrets).

No discharge or discrimination for “lawful conduct during nonworking hours away from the employer’s premises” in California. But California courts narrowly construe this statute, requiring an independent substantive basis, usuallly constitutional, for a right to privacy. He thinks anything you’re putting on the internet for public view eliminates a reasonable expectation of privacy. [Goes through various hypos.]

When is there a reasonable expectation of privacy? Well, what they do on the company’s computer network is not generally private under California law. The Konop case is relevant here.

May an employer terminate an employee for posting nasty things about the company’s product on their blog? Probably. Complaints about working conditions? Well, that’s protected by the NLRA. Criticisms of product safety? Well, that’s protected by the NLRA and whistleblower laws. “Concerted activity” seems broadly defined by the cases.

“Protected activity” under whistleblower laws includes opposing unlawful activity (including opposing legal activities they have a mistaken but good-faith belief are illegal), exercising a legal right, and concerted activities (those regarding terms and conditions of employment). Non-lawyers can be bad at issue-spotting here.

Publicly aired complaints about legal issues are still protected activity. But some things aren’t protected by whistleblower laws. complaints made in bad faith, unreasonably disruptive complaints, gratuitous tarnishing complaints, and general disagreement on business decisions aren’t protected.

Q: Does a blogging policy change the analysis? A: Nothing changes. It doesn’t give you a challenge to a whistleblower defense.

Now, discrimination laws. To avoid problems, ensure consistency when regulating employee conduct. The Simonetti case may make some law in this are.

Recommendations before taking an employment action based on blogging? First, make sure you’re treating similarly situated people the same. Check if the blogging might qualify as whistleblowing or for protection under Cal. Labor Code 98.6.

Two types of unlawful harassment. “Quid pro quo” and “hostile work environment”. Quid pro quo makes little sense in the blog context, so we’ll focus on hostile work environment.

The big question: What is the “workplace”? Are blogs part of the workplace? Do blogs form a part of the work environment? [Corporate blogs? Private blogs? Password-protected blogs? Anonymous or pseudonymous blogs?]

There’s a duty to prevent harassment. the company must take prompt corrective action if there has been harassment on any protected basis.

The only case we have is Blakey v. Continental Airlines. Negative remarks were made about a female pilot on an internet crew members’ forum. [The forum was part of CompuServe access provided by the company.] The New Jersey Supreme Court said employers have a duty to stop harassment in a “setting related to the workplace”. Also, this is part of a pattern of harassment that carried over into the traditional workplace.

Go after the harassment — it’s better to be on the receiving end of an employee privacy claim than a harassment claim.

[We go through a really nice hypo about anonymous comments on an external unauthorized blog that are harassment on the basis of age.]

Recommendations. Evenif it’s unclear, err on the side of going after the harasser, since at least then you’ve done something. Update the necessary personnel policies to address blogs. Update harassment and trade secret trainings to address blogs, and regularly monitor company blogs.

Trade secrets. To have a trade secret, we must derive value from the fact that the fact is not generally known, and we must take reasonable steps to protect the secrecy of the information.

Publication on the internet generally destroys trade secret protection, though Bunner leaves a little hole in dicta for really obscure internet publication. You uncover anonymous disclosers of trade secrets through Doe lawsuits, mostof which aren’t a big deal.

If you see something that concerns you, you must act immediately to protect your trade secrets. If you find something sensitive on the internet, you’ve got to file a complaint and TRO request right away.