"Beware the Ides of March!" - no wait ..... Yikes it's the blogs!

Work Blogs Take Off, and So Do the Suits
By Tresa Baldas
The National Law Journal
September 18, 2008

They're wildly popular, yet loaded with liability.

Attorneys are cautioning employers about getting swept up in the blog craze, stressing that bloggers are creating a range of legal problems for employers.

Disgruntled workers are trashing their employers and co-workers on blogs, which is slang for Web-based personal logs. Others are posting confidential corporate information on blogs. Some are landing employers themselves in court, being sued for comments someone posted on company-sponsored blogs.

"It's the modern-day version of the suggestion box," management-side attorney Zachary Hummel, a partner in the New York office of Bryan Cave, said of employee blogging. "It's growing exponentially and so more and more employers are facing the issue of how far do we let employees go before we take action."

In many cases, Hummel said, employers are letting employees rant and rave on corporate blogs so they can monitor the workplace.

"They let it go on because it's another means of keeping tabs on the temperature," he said.

"Some companies would be afraid of it, and others are [saying], 'We'd rather hear the concerns and problems.' "

VENTING AND PROMOTION

Venting aside, blogs are also being used as company marketing tools, said Glenn Patton, partner in Atlanta-based Alston & Bird's labor and employment practice group. Patton, who is currently working with a Fortune 50 company on a corporate blogging project, said many employers, such as Southwest Airlines and International Business Machines, are embracing employee blogging, ignoring fears of negative repercussions.

"When blogs first started, employers were implementing blanket prohibitions against employee blogging activity," Patton said. "Today, many employers are not only permitting employee blogging, but they are actually setting up official corporate blogs and establishing guidelines to help their employees get positive messages and images about the company out on the Web."

Even law firms are getting into the act. Wilmer Cutler Pickering Hale and Dorr, for example, is letting several younger associates blog about their experiences as a marketing tool to reach potential recruits.

The blogs were launched during the summer, just in time for recruiting season, to give potential associates a flavor of what it's like to work at WilmerHale.

But many blogs are causing legal problems. In the past five years, a number of lawsuits, involving defamation, retaliation and discrimination claims, have been filed against employers over comments posted on blogs.

Earlier this year, Cisco Systems and one of its lawyers, Richard Frenkel, were sued for defamation over an anonymous blog in which Frenkel allegedly accused two Texas attorneys of engaging in criminal conduct in a case against Cisco. Ward v. Cisco, No. 2007-2502 (Gregg Co., Texas, Dist. Ct.); Albritton v. Cisco, No. 2008-481-CCL2 (E.D. Texas).

In Georgia, a former Delta Air Lines flight attendant who claims she was fired after she posted photos of herself in uniform on her blog sued the airline for sexual discrimination. The case was stayed last year while the airline is in bankruptcy. Simonetti v. Delta Airlines Inc., No. 5-cv-2321 (N.D. Ga. 2005).

In Colorado, a group of Quiznos Master franchisees last year sued the company for wrongful termination, claiming they were retaliated against for posting on their blog the suicide letter of a former franchisee, who attributed his suicide to troubles at work. The case settled in December. Bray v. QFA Royalties, No. 06-cv-02528-JLK-CBS (D. Del.).

Meanwhile, all this litigation hasn't scared employers away from employee blogging, said Evans Anyanwu, a principal and Internet law attorney at Evans Anyanwu & Associates in Newark, N.J. Instead, he said, it's pushed them to enact more robust Internet usage policies.

"Employers are indeed facing great liability risks by allowing employees to blog on the company's behalf," Anyanwu said. "But I think many employers are aware of the liability risks and, as such, constantly remind employees to be aware of their policies."

Take the Cisco case, Anyanwu said. Within six months of the anonymous blogger revealing himself, and triggering a lawsuit, the company revised its Internet posting policy, mandating that all employees state that their opinions are their own, not the company's.

"Blogging should not be prohibited," Anyanwu said. "But only curtailed with disclaimers to safeguard employers."

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