Also see George Lenard's excellent series of posts
So where do we start?
What seems to have brought this issue to the fore was the termination of a Delta Airlines flight attendant Ellen Simonetti who maintained a weblog called Diary of a (Fired) Flight Attendant. The "Fired" was added after her employment was terminated on October 29, 2004 for posting "inappropriate photos in a Delta uniform" to her weblog. The New York Times has a story entitled Fired Flight Attendant Finds Blogs Can Backfire and she got a tremendous amount of press and media time.
But these terminations are not confined to the United States. There was a report in the Nunutsiak News on August 6, 2004 (Nunavut Tourism fires web-logging staffer) that Penny Cholmondeley, known on the Internet as "Polar Penny", was terminated in July 2004 "because of the online journal, or web log, she had kept since her arrival in Iqaluit in January".
Most recently, Jon Gordon, an employee of a U.K. book chain, was fired for material he included in his blog called The Woolamaloo Gazette. There are a number of media reports (U.K. bookseller fires employee over blog, The Guardian in an article entitled Blogger sacked for sounding off, Scotsman.com's Internet warning after blog sacking, The BBC in Worker sacked over blog comments, The Herald in When is online out of line?, Shepherd+ Wedderburn in their Employment bulletin on January 15, 2005
Has anyone been fired for "blogging"? I would think that it would be quite unlikely that an employee would be terminated for simply "having" a blog. More likely, is an employee who has a blog and is terminated for making statements on it that are, in some way, inconsistent with his or her duties to the employer or otherwise inconsistent with continued employment.
But how is this any different from the legal situation before blogs, the internet or email?
If you look at the employment cases decided to date (not about "blogging" specifically, but more generally) you will find many cases where people have been terminated for such things as (a) misuse of Company time (i.e. spending work time on non-work related activities, such as surfing the net or conducting a "side business") (b) disclosing confidential or sensitive business information (c) making public comments of a nature that would be harmful to their employers' interests or reputation (d) using employer resources, including technology, for an improper purpose or in contravention of an employer policy (e) sending email from work that are offensive or threatening (f) engaging in off duty behaviour or conduct that is inconsistent with continued employment. These are just some off the top thoughts.
All this is to say that employees who "blog" are accountable for what they do and say in the same way that employees always have been.
What's an Employer to Do?
One lesson from the situations discussed above (particularly the US and UK cases) is that an employer who terminates an employee for things said on a blog will get media attention (lots of it). While that should not drive the decision to terminate or not terminate, it, nevertheless, is something that the employer must consider and prepare for.
In the early 1990's there was a rush to draft and implement computer usage policies. These included internet, email and other forms of electronic communication. So why not implement a "Blogging Code of Conduct" which makes people aware of their duties, responsibilities, the employer's expectations and the consequences regarding continued employment?
It's been recently reported that Microsoft has an "informal" blogging policy (see, for example, Microsoft's employee blogging policy, MSN Blogging Policy, Microsoft's Employee Guidelines for Successful Blogging).
It seems that these guidelines contain the following components:
- Above all, 'Be smart'.
- Respect existing confidentiality agreements
- Do't break news; don't disclose confidential information
- Be cautious with third-party information
- Respect prior employers
- Identify yourself
- Be cautious in how you offer support or advice
- Speak for yourself
- Think about reactions before you postI
I can think of many others things an employer might want in a policy, including that a breach of the policy will result in discipline up to and including immediate termination.
Similarly, in Telus Mobility (2001), 102 L.A.C. (4th) 239 (Sims), it was held that you don't need a policy or specific rule to justify discipline for sending pornographic material via the employer's email facilities.
According to Professor Palmer, in his text Collective Agreement Arbitration in Canada (Butterworths):
Quite obviously, there are a number of situations where no rule is needed to permit discipline. Obvious illustrations could be intoxication on the employer's premises during working hours, fighting with fellow employees, insubordination and so on. In these cases, it would be unreasonable to state that an employee could consider otherwise. A full canvas of this issue is not possible here; the rulings of arbitrators on this point, where available, are found where specific offenses are described. Really, the only effect the lack of a rule or the quantum of penalties likely to be assessed has is that in some circumstances it may mitigate the penalty actually imposed. It should also be noted that the existence of a rule does not preclude discipline in those areas where no rule exists.
In a union setting, implementing an "employer rule", may be somewhat more challenging, but that's a discussion for another day.