Tuesday, August 01, 2006

Personal expression online versus job security - CORPORATE REPORT WISCONSIN

By Arendt, Laurie

EMPLOYEES TODAY CAN INHABIT TWO WORLDS: THE literal world of their jobs, and the virtual world of cyberspace with its Web logs, personal sites, and discussion groups. Comments made in the virtual world can have dire consequences for the working world, according to Erik R. Guenther, an attorney with Hurley, Burish & Stanton SC of Madison. He notes that the World Wide Web can be quite an interesting place to find out all sorts of things about employees and potential employees.

The first stop on our virtual tour: personal blogs.

Many bloggers are often quite naive about the concepts of libel, slander, confidentiality and appropriateness.

"An employer could terminate an employee based on disparaging comments made on a blog," said Guenther, who also noted that there are currently no state or federal laws specifically pertaining to termination due to blogging.

"Should the comments be severe enough, they could also create liability for the employee. However, if an employee is complaining of harassment or discrimination on his or her blog, terminating that employee could give rise to a retaliation claim."

In addition, Guenther said that if an employee is using a blog or other Web site to attempt to organize with other employees, this communication is protected under the National Labor Relations Act. The NLRA also protects discussions of employees regarding wages, benefits, and conditions of employment of union and non-union employees.

"Another potential pitfall could be if an employee is whistle-blowing through the use of a blog," noted Guenther.

Even if you try terminating an employee due to his or her blog, you might just be up for a challenge in court.

"A creative plaintiff's lawyer challenging a termination could argue that blogging is a protected activity under the 'use or non-use of lawful products' language of the antidiscrimination statute," said Guenther, who noted that this protection was lobbied for by the tobacco industry in Wisconsin and many other states. "This protection has been used to defend against other situations like social drinking outside the workplace."

The second stop on our virtual tour: MySpace.com and other personal pages.

"A MySpace page may present a lot of personal information that wouldn't necessarily come up in an interview or at work," said Guenther. "In this instance, an employer needs to remember what the protected classes are under federal, state or local municipal laws. Even though some of these classes may be clearly evident on a MySpace page, they cannot be used as a basis for a hiring or firing decision."

Federal law prohibits discrimination on the basis of race, color, religion, sex, national origin, age or disability. Wisconsin's Fair Employment Law adds arrest and conviction records, marital status, genetic and honesty testing, military membership, pregnancy and childbirth, sexual orientation and use or nonuse of lawful products off of a company's premises during nonworking hours.

Local ordinances such as Madison's Equal Opportunities Ordinance can add a few more protected classes: Source of income, less than honorable military discharge, physical appearance, sexual orientation, political beliefs and student status.

So what should an employer do? Guenther recommends a proactive rather than a reactive approach:

1. Google your company, employees and products to see what is being discussed online.

2. Have a well-drafted policy in place with respect to confidentiality; become familiar with trade-secrets law and take steps to limit access to sensitive materials.

3. Create an additional policy regarding expectations about professionalism, respect for the company and of co-workers.

4. Consult with counsel before terminating an employee for Internet-based communications.

One final tip: A certain degree of virtual information has a timeless quality to it. The person sitting before you may have no idea you've stumbled upon a forgotten, early college-era, politically charged blog, or a revealing photo or six... or some other potentially embarrassing information.

Such information may be best left in the past.

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