The blog monster

The explosion in the popularity of web logs poses some interesting challenges for organizations when employees bad-mouth their bosses

Stuart Rudner
There is a new pastime that has emerged in the Internet world: Blogging.

The term “blog” is actually derived from “web log” which, in essence, is an online journal. Blogs have exploded in popularity. Estimates have put the number of blogs worldwide as high as three million.

Apparently there are many people who enjoy posting regular updates of their lives, activities, thoughts and feelings. Most blogs are relatively harmless: A somewhat public diary or a way to keep friends and family involved in one’s life.

Others are obviously the product of people who have a need to expose the most intimate aspects of their lives to the public, including graphic details of their sexual exploits. And some are used as a virtual weapon to attack the blogger’s employer, supervisor, ex-lover or anyone else that upsets them.

The growing prevalence of Internet blogs raises some interesting employment-related issues. The introduction above suggests one of them:

•Does an employer have any recourse when its employee is bad-mouthing the company?

•What about if the employee reveals corporate secrets?

•What if the employee threatens (explicitly or implicitly) superiors with physical harm?

A further extension of the issue raises the question of what other types of blogging might cause an employer to feel the need to discipline, or dismiss, an employee. What if the employee’s blog contains controversial political views? Or racist sentiments? Or graphic descriptions of the employee’s (or other employees’) sex lives?

This might sound like a bizarre fringe issue that really doesn’t impact the human resources world. But think again. A recent example of blogging leading to termination was reported in the mass media.

Matthew Brown was a Starbucks employee in Toronto who started a blog to keep in touch with friends and family. He also used the blog to vent some of his frustrations, including work-related issues. After a manager refused to allow him to go home when he claimed to be sick, he used the blog to publicly criticize the manager. (According to published reports, Starbucks employees must sign a contract agreeing not to make negative comments about the company.)

When the company found out about the blog it terminated Brown’s employment. Ironically the termination took place on the day he was to begin management training at Starbucks. In his defence Brown said the blog was meant strictly for family and friends. He also pointed out he didn’t give the address to anyone at Starbucks and he didn’t specifically name the manager in question

Another example hit the national headlines in September, when Penny Chomondeley, 29, a tourism marketing officer at the Nunavut Tourism agency, was fired for postings she made on her blog.

Chomondeley posted photos of abandoned machinery and rusting cans in the snow outside Iqaluit, gave a poor review of a local restaurant and griped about the high prices for groceries in the territory.

To date, it doesn’t appear that Brown has started a wrongful dismissal claim against Starbucks. Chomondeley has yet to take any legal action against Nunavut Tourism.

Nor has any other legal action surfaced out of a termination for blogging, although such litigation seems inevitable as this emerging online activity becomes more common.

While blogs are a recent phenomenon, the underlying legal issue is not. One must simply apply and adapt as necessary the existing law with respect to when off-duty conduct can lead to discipline.

Employees that are not at work are, generally speaking, free from discipline for their actions. But there are limits to this freedom. Some off-duty conduct can result in discipline up to and including termination. A relatively recent case involved a Heritage Canada employee who was president of a separatist club known as “Le Quebec, un Pays!” (Quebec, A Country!).

The government’s view was that her position as president of the club was in direct conflict with Heritage Canada’s mandate of fostering national unity.

The employee maintained she did not do anything contrary to her employment duties while on the job and did not use government equipment in order to further her efforts on behalf of the club at any time. She also agreed to refrain from criticizing her employer. Nevertheless her employment was terminated.

What all involved parties want to know, of course, is when can off-duty behaviour be the subject of discipline? There is no hard and fast rule. But the following types of conduct can certainly be close to, if not over, the line:

•behaviour that interferes with the employee’s ability to carry out their duties;

•behaviour that negatively affects the reputation of the employer;

•behaviour that results in other employees being unwilling to work with the employee in question; and

•behaviour that interferes with the employer’s ability to manage and direct the work process.

It remains to be seen how blogging will be treated by the courts. Each case will turn on its own facts. In the meantime, however, employers should consider including references to blogging in their employment policies and handbooks. Like Internet and e-mail use while at work, employees should be put on notice that inappropriate blogging can lead to disciplinary action.

Stuart Rudner practices civil litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or via email at [email protected].

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