Blogfired: Bloggers and Employers Test Each Others’ Boundaries

Unfortunately, domestic Newsweek killed my story due to a perceived conflict of interest. Then, Newsweek International bumped, and now today killed it as well. If I flutter about trying to find a new buyer for it, it will be long out of date before it appears. NPR’s Day to Day radio show covered the topic after my article was originally supposed to have come out; Marketplace radio, the San Francisco Chronicle, the Christian Science Monitor and Families in Business are all in some stage of a simliar story. So, here goes.

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BLOGFIRED

by Curt Hopkins

According to a new study by the Pew Internet and American Life Project, the number of people creating online diaries, or blogs, has topped eight million. The blog search engine Technorati currently counts over five and a half million individual blogs. That number has been doubling every five months for the last year and a half and the upward curve is continuing.

With the increased number of bloggers, whose sites are frequently expressive free-for-alls, comes an increasing number of conflicts with employers. Blog-related firings and reprimands have made the news in every sector, including high-tech, government and media. A January 11 survey from the Society for Human Resource Management indicates three percent of its member respondents have disciplined an employee for blogging over the past twelve months. 20 percent have fired employees over non-work related internet use.

“The boundary between what is intimate and private and on the other hand what is publishing-to-the-world is indistinct,” says the Pew project’s director, Lee Rainie. “In fact it’s damned indistinct.”

Many bloggers believe that the constitutional guarantee of free expression protects their activities. It does, but it does not protect their jobs.

“If you’re in the private sector, in almost every state in the country you’re under ‘employment at will,’” says Professor Carlin Meyer, an employment law specialist at New York Law School. “I’m not a fan of employment at will; it’s a 19th century doctrine that arises out of the idea freedom of will, but it doesn’t take into account the enormous power gap between employers and employees.”

The social networking company Friendster received unwanted attentions last year when it dismissed Joyce Park, who also wrote a popular blog called “Troutgirl,” allegedly for comments she made there deprecating the code that she had been hired to rewrite. Jonathan Abrams, the company’s founder and CEO, would not comment on the specific reasons for Park’s dismissal, but did speak to the issue of blogging itself.

“The (blogging) issue is one of immediacy,” said Adams. “Bloggers are so intent on impressing other people that they don’t take the time to check on what’s allowed.”

In an attempt to rectify this situation Ellen Simonetti, the blogger who was dismissed from Delta for appearing in uniform on her blog, has started the “Bloggers’ Rights Blog.” She is attempting to exert pressure on employers to create clear blogging policy, something few companies have.

“Employers should have a clear policy and warning system,” says Simonetti. “I worked at delta for eight years and had no disciplinary history.” She says she still is not certain exactly what caused her dismissal.

Rob Smith, who publishes the blog Gut Rumbles, agrees with the need for clear policy.

“It’s so easy to do this,” says Smith. “My company had a policy for everything you could think of, but not blogging. In my humble opinion this is a thing to be reckoned with.”

But for most companies, this issue is only now coming on the radar. Companies such as Wal-Mart and Barnes and Noble appear to have no specific blogging policy. David Sifry, CEO at Technorati, whose business is blogs, says his company’s blogging policy is “very simple. There are two rules: use common sense and if you do not use common sense you’re going to get a visit from me.”

Doug Simmons at the Village Voice, says his paper has no policy either, but that is intentional. “At the Voice, there is no restriction on expression,” he says. “I’m particularly grateful to be (here), where we err at the side of perhaps too much freedom.”

And, despite having David Scoble, who has done much to promote blogging in the company culture, Microsoft, according to a spokesperson, has no blogging policy separate from its existing employee guidelines. Neither does Friendster.

Sun Microsystems is one of the only large companies to have a specific policy on employee blogging. Sun President and COO Jonathan Schwartz credits the company’s creation of the policy to their mission of networking. The company provides the wherewithal for its employees to blog, in fact, with over 1,000 electing to do so.

“Sun embraces the network for more than simply technological reasons, but socially as well. It’s a natural extension of a well-defined corporate culture.” As far as companies that shy away from the possibilities of the blog, Schwartz credits fear. “Companies that view blogging as a threat to their business are the same ones that see cell phones as threat, or computers.”

Bob Stambaugh, president of the human resources technology consultancy Kapa’a Associates, believes that, as the numbers go up, and conflicts increase commensurately, instituting clear guidelines to employees will become commonplace.

“There will be a formal blogging policy,” at companies, says Stambaugh, “Because H.R. and I.T. can never let things develop by themselves.”

Blogfired: Blog Employment Survey

UPDATED: According to Mashable, an outfit called Proofpoint has conducted a survey this year that indicates eight percent of respondents (U.S. companies) have fired employees over social media use.

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In response to my quest for data on blogging-related dismissals and disciplinary actions, the Society for Human Resource Management elected to survey their members on the topic. Here are some of their findings.

FIRING & DISCIPLINING EMPLOYEES

· 3% of respondents indicated they had disciplined employees for blogging within the last 12 months.

· 20% indicated they had fired employees for non-work internet use and 30% that they had disciplined employees for it.

· 4% had fired and 11% had disciplined employees for downloading music and video.

· 5% had fired and 18% had disciplined employees for sending personal emails.

RECRUITING

· 3% of respondents indicated that they read potential employees’ blogs as part of the recruiting process.

· 25% indicated they performed Internet-assisted background checks on job candidates.

· 22% of respondents who outsource recruiting indicated that the company they use performed Internet research on candidates.

· 2% indicated their recruiting companies read candidates’ blogs.

Special thanks to Will Gray, Media Affairs Specialist at SHRM, for all his help.

Blogfired: Jonathan Schwartz

Jonathan Schwartz, President and COO of Sun Microsystems and blogger, Jonathan’s Blog; and Noel Hartzell, spokesman for the office of the COO

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(Noel)

At the highest level one of the things that separates Sun from others is that our culture mirrors our business mission – distributive computing. We have a network culture. We seek information outside the walls of the company. Sharing becomes beneficial. The network manifests itself not only technically but socially.

(Jonathan)

Sun embraces the network for more than simply technological reasons, but socially as well. It is a natural extension of a well-defined corporate culture

We are very definitely aware that conventional wisdom is an oxymoron. We’ve always been a company to take risks. Communication creates community.

Companies that view blogging as threat to their business are the same as see cell phones as threat or computers.

Well over 1000 (Sun employees) have been given space for blogging. There’s no restraint on what they can blog about. We provide tools and expect them to use them responsibly. Restricting what you can write on a blog is the same as restricting what you can say in an email or a phone call. If they aren’t speaking as an employee, well, we live in a country that values free speech.

Blogfired: Bob Stambaugh

Bob passed away December 1 in Hawai’i. Our condolences go out to his family and friends.

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Bob Stambaugh, President of human resources technology consultancy Kapa’a Associates and Management Consultant with HRchitects

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Yes (blogging) is (on the human resources radar) in several different ways. There is a concern already about people who blog saying something negative about the company or discussing information that could be proprietary. H.R. is concerned about the legal and policy implications of blogging.

What I’d say to bloggers is, take a look at corporate policy and make sure it doesn’t conflict with what you’re doing. What I’d say to the companies is, don’t throw the baby out with the bathwater. Blogging can encourage creativity and leads to the capturing of tacit knowledge, capturing experience.

Any structure that constrains less knowledge is being logged. Right now we’re kind of in a race: companies are trying to get control of blogs because they see them as more of a threat than a promise. Knowledge management types are trying to prevent them from being crushed. The real question is, will the informal approach demonstrate value soon enough?

In general H.R. directors are looking at blogging policy as an extension of their current policy. We are not at the point yet where blogging is considered separate enough.

Through the grapevine I have heard that some companies are beginning to do a preliminary search or screen of blogs to find people.

I read “Got Game?,” a book by John Beck and Mitchell Wade. It’s about the entry into the workforce of the gamer generation. What struck me is behavior of people of that generation is so completely different from traditional workforce behavior that it is almost incomprehensible to them. A whole different information culture is emerging. Blogs are a kind of bridge. People who do them don’t see constraints whereas the older generation does.

It you spend any time in I.T. circles you hear plenty of stories of (bloggers) who have crossed the line. There will be a formal blogging policy because H.R. and I.T. can never let things develop by themselves.

Blogfired: Prof. Carlin Meyer

Carlin Meyer, law professor at New York Law School and employment law specialist

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If you’re in the private sector in almost every state in the country, you’re governed by employment-at-will, meaning your employer can fire you for just about any reason, unless limited by a statute or court rule. Statutes have made inroads on that doctrine and now you can’t be fired for discriminatory reasons, for instance. But Connecticut is the only state with laws protecting workplace free speech. Everywhere else, a private employer can fire you for exercising your free speech rights in the workplace. Most of case law has upheld employer right to control employee speech.

The law develops by being presented with cases. If something (an employer does) is outrageous enough, it may inspire the attention of the legislature or even the common law courts.

I’m not a fan of employment-at-will. It’s a 19th century doctrine that arises out of the belief in equality in the market. If an employee doesn’t like the job, he or she can quit. If the employer doesn’t like something the employee does or says, he or she can fire the employee. But it ignores the enormous power gap between employers and employees.

I think a statute on the order of New York’s labor law 201-d, that gives employees some right to control their private time unless it negatively impacts the business, is a good idea. But even 201-d does not broadly protect employee speech rights. A statute like it protecting speech could gain momentum, if people are outraged enough by what employers do to bloggers. Employers are influenced by public opinion. Just look at Nike’s overseas labor problem.

First Amendment protection applies in public sector because it’s the government acting. But it is rather limited protection: employees are only protected when talking/blogging about “matters of public concern” and not when they are talking about matters internal to the employer and not of significant interest to the public. Moreover, even if the speech is about matters of public concern (whether the employer is polluting, or cheating customers or whatever), there’s a complex assessment to determine if the employer’s action is justified on other grounds (lowering employee morale, undermining employer authority or reputation, etc. etc.)

But many states offer strong whistleblower protection to public employees, so that if their blogging could be construed as going public with information about mismanagement or fraud, they could come within those statutes. That’s true for private employees as well, but the statutes tend to require a report to a public body, not simply on-line exposure. Most whistleblower statutes do not, for example, protect employees who go to the press. And some, like New York’s, only protect private employees who blow the whistle on substantial and specific threats to public health and safety, and only if the employee has first gone to the employer and given them an opportunity to cure (the problem).

I think bloggers should expect to be vulnerable unless they can (a) get statutes passed; (b) get employers to adopt fair policies and adhere to them; (c) get lots of public sympathy (which usually goes for naught without a statute.) I also think bloggers would do best to ally with others who want workplace speech protection (employee organizations; CLU types, employment anti-discrimination advocates) so that it doesn’t become limited to a “tech” audience and concern.

Blogfired: Jonathan Abrams

Jonathan Abrams, Founder & Chairman of the social networking company Friendster

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We have a standard confidentiality policy. Back when I was working at Netscape a lot of employees had personal homepages on the Netscape server. You were not only allowed but encouraged to do it. There were issues back then of what you could put on it, about employees talking to press, what you could say at conferences, so the issue of people communicating outside your company has been around a long time. There’s not really that much that’s new. It’s common sense and confidentiality.

The (blogging) issue is one of immediacy. (Bloggers are) so intent on impressing other people that they don’t take the time to check what they’re allowed to say. Blogging is a good amplifier. Blog on blogging and people within that community take it seriously. Statistically, compared to all the other things going on in the business world, I don’t think there’s an epidemic.

Blogfired: Rachel Mosteller

Rachel Mosteller, fired reporter for the Durham, N.C. Sun and blogger, The Sarcastic Journalist

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They just said, “We saw your website, we’re firing you because of it.” Out the same day. They did not like the whole thing. I kept it anonymous and I thought it was enough to keep it safe. They just didn’t like what I was writing. They didn’t seem to understand that most of what I was saying was sarcastic. I’ve never exactly found out how they found the blog. A coworker somehow found out about it and turned me in. I had a personal website at one time with my name on it that at one time had been linked to the blog, though it was long gone. As careful as people are to be anonymous you’re eventually going to slip.

I was pregnant when fired. I’m not going to go back (to journalism) permanently because I didn’t like it. I talked to a bunch of lawyers after I got fired. Really, you can get fired for anything. It’s called at-will employment. That’s what a lot of these people don’t understand. It’s been a blessing, though. If I were still working my child would be in daycare and I’d be miserable.

Blogfired: Lee Rainey

Lee Rainie, Founding Director of the Pew Internet & American Life Project and lead author of “The state of blogging”

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One of the ongoing things the internet has introduced into people’s lives is what the new etiquette and sensibilities need to be. The boundary between what is intimate and private and, on the other hand, what is publishing-to-the-world is indistinct. In fact, it’s damned indistinct.

(Blogging) will probably look like the standard tech adoption curve in the past two or three generation – radio, TV, PCs, video. It all looks the same. There is a relatively extended period, which the internet has foreshortened, during which only most sophisticated early adopters like it because it’s new, not useful. Down the road there comes a take-off point, and it can take off almost instantaneously these days. At some point it tops off. It tops off at the number of people who have devices that will make this happen – not just computers. It plateaus when you run out of devices. It’s a classic s-curve.

The number of workplace episodes has to keep going up. It’s the new thing in the workspace, the new thing in people’s lives. It’s very contextual. The codes haven’t been written yet.

Internet has made this era one of conversation and feedback. Employers should engage in this conversation with employees as soon as possible. Not worry about brightline rules everyone can agree on right away.

Blogfired: Rob Smith

Rob Smith, fired chemical plant supervisor for Kerr-McGee and blogger, Gut Rumbles

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I wrote a post saying the n-word was sometimes deserved; and another that my company’s workplace violence seminar was ridiculous. I said I had a three-foot piece of stainless steel pipe behind my desk and that was all I needed. I didn’t. I wrote about how I never noticed how good looking Indian women were until I had an Indian engineer working with me.

(Getting canned) is still confusing to me. Kerr-McGee had a policy for everything you could think of, but not blogging. I’m not sure what I would have done if they’d given me choice of work and blogging but I would have liked the option.

It’s so easy to (establish policy). This snuck up out of the tall grass. In my humble opinion this is a thing to be reckoned with. Make the rules perfectly clear, but you can’t ignore (bloggers) any more.

Blogfired: David Sifry

David Sifry, CEO of the blog search engine Technorati and blogger, Sifry’s Alerts

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(Technorati lists) over 5.5 million blogs. 55% of those have been updated within last three months, which is constant since last year. There are 700K posts per day and 23,000 new blogs created every day.

Stop thinking of a blog as just a website. Nokia allows its users to upload phone information into a blog-like thing, “Lifeblog.” NextAmerica and Flickr are growing geometrically as well. The number of bloggers is not limited by internet users, but by phone users.

As of Sept of 2004, we (found) 5,000 corporate bloggers, bloggers who were blogging from a corporate domain or are officers of a corporation.

(Our blogging policy) is very simple. There are two rules: Use common sense; if you do not use common sense you’re going to get a visit from me. We trust our employees fundamentally. We have the best employees in the world.

When you’re blogging you’re acting as the voice of the company. We’re being incredibly transparent as a company. Putting too many rules on it at this stage stifles it. People are finding a new way to communicate with each other and that’s fundamentally disruptive in many ways.
There are two, Sun and Microsoft, and us (who have blogging policy). Everybody else is trying to let it be covered under other H.R. policies.