Adjunct Law Prof Blog

Do Employer's Need A Blogging Policy??

I usually do not post law firm newsletter or client information reports because most of the time I find them to simply be a form of advertising. However, I found one such report by Littler Mendelson to be particularly worth a read-though I still consider it a type of lawyer advertising.

Philip L. Gordon and Christopher E. Cobey  in a story entitled   DOOCES WILD: How Employers Can Survive the New Technological Poker Game of Employee Blogging recommends that employers adopt employee blogging policies (you know who drafts such policies and that is where the advertising comes in).

The authors point out that a number of employees have been "dooced" (fired because of the harmful content and public availability of their blog) and employers and employees can benefit by clear employer policies. What should these policies provide? The authors state:

All blogging policies should specify the types of conduct, especially that peculiar to the public nature of blogging, which could result in discipline. Categories of conduct normally addressed in blogging policies include the following:

• Disclaimer of Corporate Responsibility: Bloggers should be instructed to state that the opinions expressed in the blog about work-related matters are their own and have not been reviewed or approved by the employer. In the same vein, bloggers should also be instructed to state that they assume full responsibility and liability for any work-related content contained in the blog. These statements are particularly important when the employer otherwise encourages blogging by its employees.
• Confidential Company Information: Bloggers are required to comply with the company's policies protecting its trade secrets and other confidential information and with provisions protecting trade secrets contained in any employment agreement.
• Securities Regulations: Bloggers should not disclose "insider information" and may be required by the employer not to address any company-related activity during certain black out periods required by securities laws and regulations.
• Company Logo/Trademark: The policy should explain when, if at all, the employee-blogger may reproduce the company's identifying marks within the blog.
• Copyrighted Material: The policy should explain the potential civil and criminal penalties of posting in the blog copyrighted material without authorization.
• Be Respectful: The blog should not become a vehicle for personal attacks on the company, its products, its executives, supervisors, coworkers, competitors, or competitors' products.

To avoid having the blogging policy become encyclopedic while ensuring its completeness, the policy should cross-reference related policies, such as the company's policies on the proper use of electronic resources, prohibiting discrimination and harassment, and addressing confidential and insider information.

This article is not dated, but I first saw it on Find Law on July 15, 2008. I am not sure that I would go so far as recommend that employers "must have" blogging policies, but I suppose it could not hurt to have one. Query whether such policies are a mandatory subject of collective bargaining for unionized employees and query whether such policies would cut down employer exposure in wrongful discharge type suits. Some law review commentary may well be worth exploring these issues.

Mitchell H. Rubinstein

National Law Journal Article On ADA Restoration Act

Congress Aims to Expand the ADA is an important July 21, 2008 National Law Journal article. It previews the ADA Restoration Act which is likely to be enacted into law in the Fall. The article describes the changes to current law, and they are significant changes, as follows:

To achieve that shift in focus, the bill explicitly states that the definition of disability "shall be construed broadly. . . "

Under the current law, disability is defined as a physical or mental impairment that substantially limits one or more of the major life activities of the individual; a record of such an impairment; or being regarded as having such an impairment.

The bill would change the definition by adding that "substantially limits" means "materially restricts" a major life activity. It also makes clear that being limited in one major life activity is enough, and an episodic impairment or one in remission is still a disability if it would substantially limit a major life activity when active.

Reversing Sutton, the bill says that the effects of mitigating measures -- and it lists them -- cannot be considered in determining whether an impairment substantially limits a major life activity. Eyeglasses and contact lenses are excluded.

"People who by virtue of medications have controlled their conditions so their impairment is not substantially limiting have failed under existing law," said Epstein's Morris. "Those cases would go forward."

The bill also has a nonexclusive list of major life activities, including a separate provision listing bodily functions. That language is encouraging, particularly for cancer victims, noted Blanck, adding, "To say a woman with breast cancer is not covered by the law is sad."

Courts have struggled with disabilities that affect bodily functions more than life activities, said Mathis. "A lot of people with cancer have not been covered. This is really an effort to make clear body functions can be a type of life activity."

Mitchell H. Rubinstein