Monday, January 29, 2007

Personal blogs and the workplace: "do not mention"


A new wrinkle: A "Do not mention" policy for personal blogs

Earlier posts on this blog have expressed considerable concern of employer (prospective and sometimes current) checking of employee’s personal blog, social networking profiles and other websites.

One policy that seems to show up sometimes is what one might call “do not mention.” The employer will say (mainly to lower level employees of the “individual contributor” type), please do not mention your own websites, profiles, publications, or political or sometimes even religious activities in the workplace, or particularly to clients. It is a kind of gentle “don’t ask, don’t tell.” This kind of policy could be particularly attractive to school districts.

Why this variation? After all, the individual voluntarily put his work in the public space and let the search engines have at it. It’s fair game, isn’t it. Yes. But in many cases, an employer may not be absolutely sure that the posting belongs to that specific employee, particularly if the employee has a common name. If the employee mentions the blog at work, this, in a legal sense, proves the “suspicion.” A policy like this seems neutral with respect to the kind of name a person has – a common English name, or an ethnic name or one suggesting religious affiliation. This would sound sensible in view of legally driven non-discrimination requirements for the workplace in most situations.

An employer fears that if it knows definitely that problematic content really was posted by an employee, it might in some cases have to act, or face downstream liability risks. This is particularly the case with fake “pseudo self incrimination” or “dreamcatching” sometimes found on social networking site postings, often by high school and college students. A person may believe that he or she makes a valid political point. Yet, the law regards a statement made in a public space as to be taken at face value (under the normal rules of defamation familiar in printed materials before the Internet). This is an example of the “rebuttable presumption” concept made notorious in 1993 when the military’s “don’t ask don’t tell” policy for gays was codified into law.

Of course, some content still would have to be tracked down when found anyway, if, for example, it gave away trade secrets.


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