Delaware Employment Law Blog

Blogging is good for you.  Wellness programs are intended to improve the overall health and well-being of employees. So why not combine the two?  Seems like a reasonable idea to me. 

Kevin O'Keefe at Real Lawyers Have Blogs posts about an article from Scientific American magazine that explores the therapeutic benefits of blogging.  From the article, written by Jessica Wapner:

Self-medication may be the reason the blogosphere has taken off. Scientists (and writers) have long known about the therapeutic benefits of writing about personal experiences, thoughts and feelings. But besides serving as a stress-coping mechanism, expressive writing produces many physiological benefits. Research shows that it improves memory and sleep, boosts immune cell activity and reduces viral load in AIDS patients, and even speeds healing after surgery.

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Scientists now hope to explore the neurological underpinnings at play, especially considering the explosion of blogs. According to Alice Flaherty, a neuroscientist at Harvard University and Massachusetts General Hospital, the placebo theory of suffering is one window through which to view blogging. As social creatures, humans have a range of pain-related behaviors, such as complaining, which acts as a “placebo for getting satisfied,” Flaherty says. Blogging about stressful experiences might work similarly.

The "self-help" implications of blogging seems to be a powerful incentive for Employee Assistance Programs (EAPs) to consider adopting blogs into their repertoires.  Of course, employers should decide in advance whether employees will be permitted to blog about work and implement a blogging policy if one doesn't already exist.

Employers know that e-mail between employees can be dangerous.  Employers know that the Internet can all but eliminate the productivity of their employees.  But what do employers know about Instant Messaging, weblogs, chat rooms, and wikis?  And, more importantly, what are they doing about it? HR Hero's survey gives some insight into the answers to these questions.

Survey Says . . .

HR Hero has released the results an interesting survey on policies (or lack thereof) for workplace technology.  There is a link to the full survey below but here are some highlights:

Policies for Technology Use.  Not surprisingly, most employers (89%) have policies both on employees' internet and e-mail usage.  What was surprising, to me anyway, is that there are still employers (5%) with essentially no policies on workplace technology.

E-mail Usage Policies.  Only a fraction of respondents (3%), did not put any limits on employees' use of the company's e-mail  systems.  Nearly all (80%) have policies expressly prohibiting inappropriate e-mails.  And more than half (61%) permit personal e-mail so long as it is not excessive.  A surprisingly large number (34%), of employers do not permit employees to send any personal e-mails.

Internet Usage Policies.  Like e-mail policies, nearly all employers (82%) prohibit employees from visiting websites.  28% of employers limit employees' internet access to approved websites only.  A small number of employers had either no internet usage policy at all (3%) or put no limitations on usage (3%).

Internet & E-Mail Monitoring Policies.  Just over half (58%) of employers that responded monitor internet use but only if they suspect abuse.  Almost the same amount (61%) did the same for e-mail.  Less than one-fifth of respondents regularly monitor e-mail use (19%) but internet monitoring seems to be more common (27%).

Blogging.  Most employers have not started to use blogs as part of their business activity.  Of those who have (12%), approximately equal numbers are putting blogs to work as part of their marketing (4%), and public relations (3%), efforts.  Others are blogging to communicate both internally within the company (3%), and externally with clients (1%). 

The entire survey, Technology and HR 2008, can be seen at the HR Hero website.

Special Note for Delaware Employers

Delaware employers should be aware that state law mandates that notice be given before monitoring employees' internet or e-mail usage. The law is specific in the way that notice must be given.  Although there are alternatives, the most common way is with a written consent form signed by each employee.

For more information on how to comply with Delaware's internet and e-mail monitoring law, contact any of the attorneys in YCST's Employment Law Department.

Among Delaware employers and in the world of employment law nationally, there has been much talk about Web 2.0 and the power of social networking tools.  Delaware businesses, like employers across the country, are worried about what is being said about them online.  They should be.

Many of you already know about the impact weblogs and online social networks can have on a business.  Of course, these impacts can be both good and bad. If it were all bad, I wouldn't be blogging on our department's firm-sponsored blog.  Many businesses have begun to embrace these new mediums to reach a broader audience. They've turned to social networking to communicate with a broader audience in an effort to maximize exposure to their products, their message, or their brand.

Other businesses have felt first-hand the negative impact of Web 2.0 communications.  For example, some companies felt massive financial reverberations because a popular blogger posted about his or her negative experience with the company's product or services.  The comments can spread uncontrollably on the web and employers are left without any real recourse. 

Another common scenario involves blogging employees.  With the explosion of the blogosphere, employees have taken to the web to share their personal stories of triumph and tragedy.  Sometimes their stories include not-so-nice commentary about their workplace. The employer is put into a very difficult situation.  If they terminate the blogger, they may be able to at least cut off the blogger's supply of "material" that can be put online.  But termination is not without risk. The terminated employee may respond with more hostile posts than ever before.  And, as newly unemployed, the blogger has plenty of time on his hands to post, and post, and post.

So what to do? We counsel our employment-law clients to institute a blogging policy if they haven't done so already. This is not to say that, as employment lawyers, we advocate for a flat-out ban on employee blogging.  But, at the very least, there should be a policy in place providing that any employee whose blog posts include the company's confidential information or trade secrets, will be subject to discipline, up to and including termination.

A different approach used by some employers could be described as the, "If you can't beat 'em, join 'em policy."  Some companies may go so far as to hire a Chief Blogger In Residence.  The CBR's job is to post like crazy about the positive aspects of the company, its employees, or its products. The Chief Blogger also scans the web to monitor what others are saying and provide an appropriate response. 

Given the cost, CBRs are not exactly commonplace.,  As an alternative, an employer can use online notification tools like Google Alerts, which will search the web for your company's name. When new "hits" are discovered, you recieve an e-mail alert with a link to the site where the company's name was found.  Searching for yourself or your company is known as a "reputation search."

There is now a new product designed to do conduct "professional" reputation searches.  Trackur promotes itself as an "online reputation monitoring and brand tracking tool.  It has been described as "Google Alerts on steroids," according to the Trackur website.  And what makes this pay-for-play, subscription-based tool better than the free Google one?   Having not tried it myself, I'll leave it up to you to decide. 

The plans are not cheap.  A monthly subscription to have just one search saved and run twice daily is $18 per month.  Jump to 5 saved searches and you're up to $88 per month.  I have no experience with Trackur so I can't say what value it actually has.  But even if Trackur isn't met with fabulous success, I'd be willing to wager that similar monitoring tools are not far behind.  Any employer concerned with what its employees are saying about the company, and any business concerned with its online reputation would have good reason to consider an "online reputation-monitoring tool."

***Prior posts on blogging include: Blogs In the Workplace and Somebody’s Watching You: New Data on Employers' Electronic Monitoring

It's 2008, do you know where your employees blog? Employers who fail to stay current with the popularity of blogging or who do not have a solid blogging policy in their Employee Handbook put themselves at a great disadvantage. Read on for some key points on the "whys" and the "hows" of a valid and comprehensive blogging policy.

Today’s Wall Street Journal features an article on blogger Heather Armstrong. Heather is most famous for being fired for writing about her co-workers on her blog, www.dooce.com. In fact, a blogger is “dooced” when he or she is terminated for blog comments.

Today, Heather is a full-time blogger writing mostly about her family life. Her blog is incredibly popular, receiving over a thousand hits each month. Her husband even quit his job to work on selling advertising for the blog.

The article causes one to think about just what risks employee run blogs pose for the workplace and how problems can be avoided.

Breach of confidentiality. A blogger may reveal confidential information about your company, including trade secrets. For example, a blogger complaining about a project assignment may, without thinking about the implications, reveal details of a new product that's under development. Or an accounting department blogger complaining about having to work an all-nighter on a big stock deal may inadvertently be revealing insider information.

Defamation. The freewheeling culture of blogging may encourage people to say things online that could defame their employer, management, co-workers, customers, or competitors.

Harassing or otherwise offensive content. Imagine, for example, a situation in which an employee with a disability is being accommodated with a modified work schedule in compliance with the Americans with Disabilities Act. The employer has properly responded to inquiries about the arrangement by saying only that the company is handling the individual's situation in accordance with federal law. A blogger complains that that "slacker" is being allowed to come and go as he pleases while the rest of the department suffers for it and speculates about the person's possible medical condition.

Or imagine a blogger spreading completely speculative rumors that a recently promoted colleague got the job by performing sexual favors for the boss. Conversation that shouldn't go unaddressed in the workplace can be extremely difficult to curb when it occurs anonymously in cyberspace.

Inappropriate content. Such content can range from postings that are disrespectful to your company to those that are completely unrelated to employment but may still reflect on you.

It's important that you cover blogging in your Internet or electronic communications policy. The policy should prohibit disparaging the company or its employees, customers, or competitors either by name or implication. As with your other policies, it should be communicated to employees when they're hired and periodically thereafter. It also should caution them that they must avoid creating the impression that the views expressed on a blog are anything more than personal opinions.

Following are some points you may want to cover in your blogging policy:
1. Persons who broadcast information regarding the company or its employees, customers, or competitors must make clear that views expressed in the blog are theirs alone and don't represent the views of their employer.

2. In blogging, as in any other communication, employees must respect the company's confidentiality and proprietary information. Employees should be reminded of the confidentiality provision in the employee handbook and, if they're required to sign confidentiality agreements, of their commitments under those agreements.

3. Employees who have questions about the blogging guidelines should direct their questions to a designated company official who will serve as the authority on the policy and on helping them understand how it applies to their situations.

4. As with all communications, persons communicating through blogs are expected to treat the company and it employees, customers, and competitors with respect.

5. The company may ask that certain topics not be disclosed for confidentiality or legal compliance reasons, and employees are expected to honor those requests.

6. Employees are responsible for ensuring that their blogging activity doesn't interfere with their work commitments, and they should be familiar with the company's other policies regarding Internet use, which also apply to blogs.
The benefit of a blogging policy is that it puts your employees on notice of the standards of conduct that apply to blog postings. If you then learn that an employee has violated the policy, you can address the situation through the normal disciplinary process. Before imposing discipline, however, remember that state laws differ and certain types of communications may be protected under state and federal law. You might consider consulting counsel before taking any disciplinary action.