Blogging Your Way to Unemployment

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Posting your opinions online? Think again…

Remember that adage, “Don’t mix business and politics?” Facebook profiles encourage users to do just that by asking them to identify their employer, political affiliation and political views, and publicly chronicle their work and personal life in ways employers never previously anticipated. Microblogs, such as Twitter, invite people to publicly post opinions on a variety of subjects, and, by their very nature, blogs invite debate from others in the virtual world.

Internet posts can be informal and carelessly written. The contrast between the high level of care employees give to paper correspondence, which can be destroyed, and the lack of thought often given to virtual posts, which can endure online forever, is astounding. The problem for employers is some employee posts can undermine an employer’s public image or damage its business strategy. An employee may also post opinions to political blogs, newsgroups or news articles without any disclaimer that the views and opinions expressed are the employee’s alone and don’t represent the employer’s official views.

Many employers actively police blogs and social networking sites or simply wait for co-workers to report controversial postings. For example, CNN fired an editor who tweeted that she had ‘respect’ for the deceased Sayyed Mohammad Hussein Fadlallah, connected to several bombings in which hundreds of Americans were killed. ESPN fired part-time contributor Paul Shirley after he posted controversial comments about Haiti’s earthquake on his blog. Regardless of how they learn of the posts, more and more employers discharge employees because of them.

However, employers should check their state’s off-duty conduct laws before firing employees based on their social media posts. Illinois doesn’t have a statute that outright prohibits employers from attempting to influence political opinions, but it has enacted off-duty conduct laws to provide some protection to employees. For example, according to the Personnel Record Review Act, the state prohibits employers from “gather[ing] or keep[ing] a record of an employee’s associations, political activities, publications, communications or non-employment activities, unless the employee submits the information in writing or authorizes the employer to keep or gather the information.” What is Facebook if not a ‘record’ of all these things?

An employer’s social media policy should set clear guidelines, especially if the employer doesn’t want an employee to endorse political candidates/ideas in the name of the company. The policy should also inform employees whether use of social media is allowed during work hours and whether they can use company computers to access Facebook or Twitter. If it is permitted, employees implicitly agree to allow their employer to monitor their private email and posts. And, if employees don’t want to subject themselves to such monitoring, they need to use their own equipment to access social media at work.

Employers shouldn’t discharge or discipline employees simply because they disagree with their off-duty conduct, especially when it involves political activities and associations. An employee’s off-duty conduct must truly implicate work issues before an employer contemplates taking adverse action. For example, drunken tweets about company clients during non-working hours are likely not protected conduct. But because there are few cases construing these statutes in the social media era, employees must be savvy and avoid off-duty conduct that may cause trouble at work. Employers should, likewise, exercise restraint.

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About Anne E. Larson

Anne Larson is a shareholder in the Chicago office of Ogletree Deakins, a national labor and employment law firm representing management. Ms. Larson concentrates her practice on labor and employment matters and tries discrimination, breach of contract and non-competition/trade secrets disputes throughout the country. She focuses on litigation prevention when advising businesses on their hiring and firing practices, reductions-in-force, disability accommodations and social media issues.