How to Deal

Fired for Blogging?

By Lily Garcia
Special to washingtonpost.com
Wednesday, May 16, 2007; 8:35 AM

I'm very frustrated in my current job -- I have a bad boss with poor ethics -- and my employer is doing nothing to address my concerns. I maintain a blog and am very tempted to let my readers know what is happening and that my employer is doing nothing about the situation.

I'm a firm believer in free speech, but want to know if my employer can take action against me if I speak openly (not positively) about my employer in my blog. Help!

Simply put, you could be fired. I know that seems unfair, but employees are fired all of the time for disparaging their employers. I am not suggesting that you do nothing more, only that you pursue these issues in such a way that you are protected.

First, make sure that you truly have exhausted your legitimate internal complaint channels. Have you notified human resources? What about your chief operations officer? The owner? Surely there is someone in your organization who will recognize the legitimacy of your concerns.

Regardless of the nature of your boss's unethical conduct, there is probably a government agency tasked with investigating such matters and a law to protect you against retaliation. Provided that your employer is a publicly traded company or the contractor or subcontractor of such a company, the Sarbanes-Oxley Act would protect you from retaliation for reporting information that you believe to be a violation of a Securities and Exchange Commission rule or other federal laws concerning fraud against shareholders.

You would also be protected against retaliation if you reported a violation of the Civil Rights Act of 1964 to the Equal Employment Opportunity Commission, or if you notified the Occupational Safety and Health Administration of a shortcoming in workplace safety. These are only some examples of your federal avenues of complaint. Your state or local governments will afford you other protections as well.

If you blog while you are at work or using your company's technology, you could easily lose your job for misusing company property or violating the company's IT policy. It is a rare employer that does not require employees to sign a policy acknowledging that company equipment and IT are for legitimate work use only and that any other use would be considered a violation of workplace rules.

In the event that you are blogging on your own computer while you are not on the job, I should mention that many states and the District of Columbia have passed laws protecting employees from adverse employment action based on legal off-duty conduct. These statutes are mainly addressed to the use of tobacco, alcohol and other legal products. Some of the more expansive statutes also include protections for employees engaging in lawful recreational activities and romantic relationships.

None of these laws specifically protects online communication or blogging, and a number of these laws include an exception to the employee protections where engaging in the activity would present a "conflict of interest" or negatively affect the employee's job performance.

As a result, it is possible that you live in a state where you might be able to claim that writing in your blog constitutes a lawful off-duty recreational activity -- but your employer could justify whatever action it takes against you on the grounds that what you are doing poses a conflict of interest or that your job performance has been negatively affected.

I want to be clear that I think you would be going out on a limb to claim that your job is protected even as you are bashing your employer online. You certainly have a First Amendment right to express yourself, but that does not mean your employer necessarily must keep you on the payroll.

What nags at me is the question of what you hope to accomplish by blogging about ethics issues at your company. Are you seeking retribution against your employer by deterring customers? Are you hoping an appropriate official might read your blog and pursue the matter further? Or are you just looking for a place to vent your frustrations?

As I mentioned earlier, there are many more effective ways of getting your concerns addressed. If all you want is a sympathetic audience, please consider going to your friends and family before you go to cyberspace. The risks are just too great.

Lily Garcia has offered employment law and human resources advice to companies of all sizes for 10 years. To submit a question, e-mail lilymgarcia@gmail.com. We reserve the right to edit submitted questions for length and clarity and cannot guarantee that all questions will be answered.


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