Constitutional & Regulatory
Cite as: Carson Strege-Flora, Wait! Don’t fire that blogger! What Limits Does Labor Law Impose on Employer Regulation of Employee Blogs?, 2 Shidler J. L. Com. & Tech. 11 (Dec. 16, 2005), at <http://www.lctjournal.washington.edu/Vol2/a011Strege.html>
© 2005 Carson Strege-Flora
The Ninth Circuit Court of Appeals recently issued a decision protecting the right of an employee to post critical comments about his employer on a website. The court found that the employer’s discipline was an unfair labor practice prohibited by federal labor law because it was “concerted activity” protected by the National Labor Relations Act (NLRA). Employers wishing to discipline employees for their public blogging activity should be familiar with the protections provided by the NLRA. This Article explores the consequences for violating the Act and addresses what employers should consider when attempting to limit employee blogging.
Introduction
Labor laws limit discipline of problem bloggers
Using personnel policies to prevent problem blogging
Relying on property rights may not be a solution for employers
Employer penalties for violating the NLRA
Conclusion
Practice Pointers
<1> He does his dirty work like the Nazis during World War II . . . he’s suspected of fraud . . . he’s incompetent at the top. These are not the type of comments an employer likes to hear from one of its employees. However, these statements, describing the president of Hawaiian Airlines, were recently found on an employee’s website. The company took disciplinary action against the employee. In the suit that followed, the Ninth Circuit Court of Appeals reversed a lower court’s ruling and held that the website was an expression of the employee’s protected right to engage in union organizing activity under federal labor law,2 despite the website’s strong anti-employer language.3 Therefore, the company was unable to discipline him for his comments and moreover, was subject to discipline itself for violating the employee’s rights.
<2> As blogs, which are a type of website that is a serial, frequently updated, personal journal typically reflecting the author’s personality, continue to rise in popularity, more workers are using them to comment publicly about their employers’ wages, benefits, and working conditions.4 Today, many labor unions are investing heavily in new technology that provides its members access to blogs. Unions are increasingly targeting service sector employees, who are generally more computer-literate than the industrial workers who were the primary focus of labor organizing for much of the twentieth century.
<3> The Service Employees International Union, the nation’s largest and fastest growing union, has blogging technology available free of charge to each of its local unions across the country. In 2004, it became the first major union in the country with a blog.5 Similarly, employees at Target now have a blog on which they post questions and comments about wages, benefits, working conditions, and the pros and cons of forming a labor union.6 Employers have begun to take action against employees that are blogging disparagingly about the employer. However, disciplining an employee for blogging about the company may run afoul of the National Labor Relations Act (“NLRA”) if the employee is engaged in activity protected by the statute.7 Before disciplining employees, employers should ensure that their actions will not be considered an unfair labor practice, a penalty that can be applied by the National Labor Relations Board (“NLRB”) regardless of union presence.
<4> The increase in employee blogging has added new concerns for employers who are conscious of their public image. In the past, disgruntled employees might complain to their friends and family about their dissatisfaction with the company. With the advent of blogging, employees can now share these same complaints with hundreds, or even millions, of people via the Internet. Many companies have reacted to employee blogs by disciplining or firing the blogging employees. For example, in October 2003, Microsoft fired a programmer for posting comments about the company on his personal blog.8 In August 2004, Friendster fired an employee for similar reasons.9
<5> However, while firing or disciplining a blogging employee may seem like the simplest solution for employers, this is not a viable solution in many situations. Some blogging activities, even those that comment negatively on the company or could hurt the company’s business, are protected, even for at-will employees. If the content of the blogger’s website is protected by labor law because it contains efforts to organize a union or other protected concerted activity, employers may not discipline the employee for the blog.10 If they do so, it may be considered an unfair labor practice, sanctionable under the NLRA.11
<6> The best illustration of this limitation is found in Konop v. Hawaiian Airlines.12 Management of Hawaiian Airlines learned that one of their pilots maintained a website in which he posted bulletins using strong language attacking the management and president of the Airlines.13 The website also criticized labor concessions sought by Hawaiian and recommended by their union, urging readers to consider alternative union representation.
<7> The pilot, Robert Konop, protected entry to his website by creating a list of acceptable visitors, mostly other pilots.14 He required visitors to enter their names and create a password for themselves. A Hawaiian Airlines vice president obtained permission from two pilots to use their names to enter Konop’s website and did so on at least twenty occasions. Konop was subsequently placed on medical suspension and threatened with a defamation suit. He then sued Hawaiian for violation of the Railway Labor Act (“RLA”), which is similar to the NLRA, but regulates employer-labor relations in the railway and airline industries.15
<8> The Ninth Circuit found that Konop’s website constituted protected union organizing activity and rejected Hawaiian’s arguments that Konop lost this protection because his comments contained “malicious, defamatory and insulting material known to be false.” The court held that Konop’s statements were either “rhetorical hyperbole,” opinions, or false statements that lacked the required actual malice needed to make them defamatory.16 “Federal law gives a union license to uses intemperate, abusive or insulting language without fear of restraint of hostility . . . .” (emphasis in original).17
<9> While Konop attempted to limit website visitors to only those on an access list, the court’s analysis of his RLA claims did not hinge on the protected nature of his website. In addition, the fact that his claims arose under the RLA, which covers the railroad and airline industries, rather than the NLRA, which covers most other industries, was not significant to the court. The court primarily relied on NLRA precedent in its reasoning.18 While this is a typical practice for courts in RLA cases,19 local National Labor Relations Boards, which initially adjudicate claims of unfair labor practices, may not act in the same manner.
<10> The lesson of Konop for employers is simple: before taking disciplinary action on an employee for blogging, the employer must first determine if the employee and content of the blog are protected by the NLRA. Most non-supervisory/non-management employees in a private sector workplace are covered by the Act.20 The NLRA does not restrict the rights of employers to discipline management or supervisory employees. If the worker is protected by the Act, then the Act will protect certain activities of that employee, regardless of whether the employee is a union member or not.
<11> Section 7 of the NLRA provides covered employees the right to engage in concerted activities, even though no union activity is involved and no collective bargaining is contemplated by the employees involved.21 To find an employee’s activity “concerted,” the action must be engaged in with, or on the authority of, other employees, and not solely by and on behalf of the employee alone.22 Not all concerted activities are protected by the NLRA, only those that are engaged in “for the purpose of collective bargaining or other mutual aid or protection.”23 In Konop’s case, his statements calling for other pilots to consider other union representation clearly brought his website under the ambit of the RLA.
<12> For employers, this means that before disciplining a blogging employee, they must determine if the blogger is engaged in protected “concerted activity.” If the employee is using his or her blog to complain about a supervisor, this may not be protected concerted activity if the blogger is doing so alone. However, if the blogger is promoting the blog to other workers or other workers are visiting the site, it may then fall under the protection of the NLRA because two or more employees are acting together in “concerted activity.” In addition, even if no other employee is viewing the complaints on the blog, if the employee can show that the content is aimed at initiating, inducing, or preparing for group activity, then it may be protected under the NLRA.24
<13> The protections of the NLRA are not absolute: an employee can lose the protection by acting disloyally or disparaging the customers or business activities.25 In addition, the protections of the NLRA can be lost if an employee acts unreasonably, such as engaging in a massive letter writing campaign containing deliberately untrue statements.26 However, the strong statements made by Konop on his website regarding the incompetence of management were still considered protected activity under the NLRA.
<14> Some employers mistakenly believe that a policy banning blogs altogether will solve any potential problems. In the alternative, some companies might seek to ban employees from using company computers to post their blogs. Some companies have already created guidelines that spell out what an employee may and may not include in a blog.27 For example, Sun Microsystems Inc. encourages blogging and provides its employees with company service space to maintain their blogs.28 However, Sun Microsystems warns its employees not to reveal secrets related to the company or make financial disclosures that might violate securities law.
<15> While banning employee blogs may be an attractive policy for its simplicity, it may not be a viable option. While the NLRB has recognized the property rights of employers in their computer equipment and systems by upholding polices that prohibit all non-business use of its computer systems, it has also ruled that an employer cannot allow some personal use of computers, but selectively ban others.29 This means that an employer cannot allow its employees to send emails to family members, but ban any emails to other workers regarding a union organizing drive or complaints about a new work policy. Employers need to be cautious in drafting any business-use only policies to avoid discriminating against protected § 7 activities.30
<16> A blogger may want to promote a blog to fellow employees by emailing the blog’s link to their employer-provided email addresses. Employers who want to stop this practice may also run into trouble if they try to shut down those emails. A recent California ruling upheld the right of a disgruntled former Intel employee, Kourosh Hamidi, to send more than 200,000 e-mails lambasting Intel to current employees.31 The ruling indicates another limit a company may face in preventing an employee from promoting his or her blog to other workers. Intel attempted to obtain an injunction stopping Hamidi from sending emails to its staff based on the tort of trespass to chattels. The California Supreme Court held in a 4-3 vote that because Intel could not demonstrate any damage from Hamidi’s prolific messages, it could not prevail on a tort theory. The court did not consider Hamidi’s First Amendment claim that he had a right to send the emails. For California employers, this split decision removes a possible avenue to keep a disgruntled current or former employee from promoting his or her blog to other workers.
<17> While employers should be aware of how the NLRA restricts their ability to discipline blogging employees engaged in protected activity, they also need to know that the consequences for violations are typically minimal. If the NLRB finds that an employer illegally fired or disciplined a blogging employee, it may be required to pay back wages to the employee, less whatever the worker earned in the meantime.32 According to the AFL-CIO, in 2002, the average back pay award for an employee fired for union activity was $2,750.33 For some employers, the value of firing a blogging employee protected by the NLRA may outweigh the cost of paying that employee’s salary until he or she obtains other work (employees are obligated to seek other work under the Act34 ). However, repeated violations of the Act or a single high profile violation may attract the attention of the media, drawing negative public attention to the company or the ire of public officials with relationships to labor unions. Many newspapers, particularly the Los Angeles Times, routinely report on companies charged with unfair labor practices. In addition, an angry, fired blogger already has a public forum to air additional grievances. Employee morale may suffer as well. Employers concerned about public image will need to factor in possible negative press and reduced morale in any cost-benefit analysis.
<18> A company that learns of an unwanted employee blog should proceed cautiously before disciplining the employee. Management should first determine, if by blogging, the employee is engaging in protected activity under the National Labor Relations Act. If the employee is engaged in union organizing or, in the absence of union activity, “concerted activity” for the “mutual aid and protection” of other workers, the blog is likely a protected activity. In addition, a company should be cautious to ensure that any business-use only policies do not discriminate against protected activities. In the final analysis, when an employer is considering taking action, it should also be aware that the financial penalties for violating the NLRA are minimal.