Have a blog, lose your job?

Workers with Web logs are everywhere, and they're starting to make corporate America very nervous.


February 14, 2005: 5:29 PM EST
By Krysten Crawford, CNN/Money



NEW YORK (CNN/Money) - Mark Jen landed a dream job with Google Inc. in January. He was fired less than a month later.

His infraction? He ran a Web log, where he freely gabbed about his impressions of life at the Mountain View, Calif.-based Internet search giant.

Web logs, or blogs, the online personal diaries where big names and no names expound on everything from pets to presidents, are going mainstream. While still a relatively small piece of total online activity, blogging has caught on with affluent young adults. As Forrester Research analysts recently noted, blogging will become increasingly common as these consumers age.

For companies, the growing popularity of blogs is a double-edged sword. On the one hand, corporate managers recognize the power of word-of-mouth as a sales tool. On the other hand, they're acutely aware of the dangers inherent in the rapid and widespread dissemination of company information.

"Blogs are enabling people to have a conversation with a much wider audience," said Kurt Opsahl, a staff attorney with the Electronic Frontier Foundation, a group that monitors Internet use and privacy rights. "They're saying the same things that people would routinely say around the water cooler, only now they're saying them in a forum that can be read by millions of people."

Even though employee blogging ranks behind personal Internet and e-mail use at work, Google and other companies are starting to crack down.

A former Delta Air Lines flight attendant claims she was fired in November over pictures she posted on her personal blog that she says the airline deemed "inappropriate." Friendster, an online social networking site, canned an employee last summer for her online musings about the company. And a Microsoft contractor lost his gig after posting on the Web photos of Apple computers arriving at the software giant's Redmond, Wash., headquarters.

Bloggers besieged
Employee bloggers aren't the only ones feeling the heat. In recent months Apple Computer has launched legal attacks against operators of at least three Internet sites -- not run by Apple employees -- that allegedly posted or linked to information that the Cupertino, Calif., maker of the iPod portable music player claims is proprietary.

A few of these targets are fighting back.

Ellen Simonetti, the former Delta stewardess whose "Queen of the Sky" online persona got her fired, has filed a discrimination complaint with the Equal Opportunity Employment Commission. The operators of sites targeted by Apple claim their postings, like those of a newspaper article, are protected under the First Amendment.

But employee and non-employee bloggers don't have the same legal protections.

Workers who rant or rave about bosses online -- whether it's done on the company clock or at home -- generally don't have a strong defense.

In most states, employees who don't have a contract are considered "at-will," which means they can quit at any time and for any reason. Conversely, employers have the right to fire them at any time and for any reason, except for well-known exceptions like race, age or gender.

So whether a supervisor discovers an underling ridiculing his thinning hair at the company elevator bank, at a local bar after work, or on the worker's personal blog doesn't matter. In either instance, the boss can turn around and say, " 'We don't need you. Why don't you go work for someone else?' " said Margaret Edwards, a partner with Littler Mendelson, a national law firm that represents employers.

Cliff Palefsky, a San Francisco employment lawyer, says there's a false sense that employers can't punish their workers for voicing personal opinions -- on their blogs or anywhere else. "People mistakenly believe that the First Amendment protects them in the workplace, which is generally not the case," he said.

There are a handful of exceptions. Several states, including California, specifically protect workers from retaliation for their political views. Other states have broader protections covering "off-the-job" activities, said Palefsky.

Even those safety nets have limits when it comes to bad-mouthing the boss. "If you're going to be talking about your employer, it's hard to call that 'off-the-job' conduct," said Palefsky.

Scare tactics?
The odds are much greater that the non-employee Web sites recently targeted by Apple can fend off the computer company's attack, legal experts said.

AppleInsider.com and PowerPage.com, two of the Web sites involved in the Apple case, posted or linked to information about a future software interface dubbed "Asteroid," according to Opsahl, the Electronic Frontier Foundation lawyer who is defending the sites.

Apple, in a lawsuit filed in California state court in December, claims the product leaks violated its trade secrets and wants the site operators to disclose the source's identity. But Opsahl counters that the site operators, like news reporters, are protected under the First Amendment as well as California state law.

Eugene Volokh, a UCLA law professor and expert on free speech and the Internet, said that the journalist defense is potent. "There's just no way that Apple can win," he said.

Even if Apple and other companies triumph in their campaigns against bloggers, their ability to control online diarists is inherently limited, said Neil Isenberg, an Atlanta lawyer and operator of Gigalaw.com, a technology-law site.

"The problem with a lot of these issues is, once the cat is out of the bag and the information has been disclosed, it can't be undisclosed," said Isenberg. "A lot of what these companies are trying to do is to deter other people from doing the same kind of things."