Blogging in the time of pink slips

February 25, 2009 12:00 am | Updated April 01, 2010 05:07 pm IST

Aarthi S. Anand

Managing their profiles and speech on the Internet is of key importance to employees and prospective employees.

The current climate of dampened employment opportunities and “pink slips” perhaps presents the appropriate time for employees and employment-seekers to become clued into “doocing” — or how their behaviour and speech on the Internet can affect their career graphs and employment opportunities. Blogs being so easy to create has made them very popular; over 70 million blogs were being created by 2007 and a billion are expected by 2012. Given the salience of the Internet and freely available and ready-to-use blog templates, unsurprisingly people are making online journals, creating virtual street corners with tea-stall “gupshup” about their daily lives, and inevitably posting stuff about what takes up a large part of their day — their jobs and office life.

However, what is relatively less known is that employers are increasingly tuning into such virtual street corner conversations. There have been several instances of employees being fired for their online activity. Given the significant role of the workplace in their lives today, people’s blogs inevitably include incidents and people they encounter at work. Employers are, of course, well within their rights to warn employees against disclosing confidential information or utilising work-time for personal activities such as blogging. The problem, however, is that employers are terminating the services of employees for comments on their blogs that are critical of co-workers or superiors, or show the company in bad light. Arguably such commentary may be viewed as being in poor taste or as being plain indiscreet if the blog is popular and generates substantial traffic.

One could well argue that discretion being the better part of valour, any reference to the workplace may be avoided. This, however, is separate from the question whether such speech is a legitimate ground for employers to terminate employees. Should the law countenance criticism on blogs as a permissible ground for firing employees? Can private employment contracts be utilised to muzzle speech? Is employment law comfortable with such terminations?

The IIPM-Gaurav Sabnis-IBM episode provided India’s own doocing experience. In 2005, in response to Mr. Sabnis’ critical post on the IIPM, he was asked by IBM, his employer, whether he would consider deleting the post (on a blog created in his personal time), especially since the IIPM had threatened to burn all the Lenovo notebook computers that had been presented to it by IBM. Curiously, Sabnis’ post actually referred to an article published by the magazine Jam that criticised the IIPM for making allegedly tall claims in its advertisements. Arguably, Mr. Sabnis’ comments on Arindham Chaudhuri (the IIPM’s founder) may have been personal, but if Mr. Chaudhuri or the IIPM found them to be objectionable, they could easily have instituted a defamation suit. Instead of pursuing legal remedies available against Jam or Mr. Sabnis, they chose to speak to IBM about what it planned to do to the laptops unless Mr. Sabnis’ post was deleted. This may arguably not be a pure instance of doocing as Mr. Sabnis resigned from IBM of his own accord and not under duress.

The question, however, remains: should speech unrelated to job performance form a ground for termination? Employment law intends conduct related to job responsibilities, such as fraud, failure to perform duties, and so on as grounds for termination. An employee’s speech unrelated to his or her work would evidently not be within possible grounds for termination contemplated by employment law.

Other instances of doocing indicate that merely refraining from naming an employer or supervisor may not be enough. Heather Armstrong, the first person documented to have been dooced (and who is the source of the term) was fired even though her posts about her work-day did not include the name of the start-up or the names of people.

Not just the old guard, even non-hierarchical start-ups and flat companies that are reputed to encourage employees to speak their minds are not immune to firing people for their online speech. Fingers were pointed at Mark Jen’s personal blog which initially included posts critical of Google, its training and health insurance coverage. Though these were subsequently edited out (ostensibly sans duress), that could not prevent his termination within a few weeks of being brought in from Microsoft. Similarly, Joyce Park was fired by social networking site Friendster, for blogging about internal company changes that had already been debated in the blogosphere.

Sometimes other grounds may be utilised to disguise doocing. For instance, Mark Hascom lost his Microsoft contracts for posting photographs of the arrival of rival Apple’s computers into a Microsoft office, ostensibly because the photographs compromised the security of the office. Also, as in Mr. Hascom’s case, tarnishing may have been the key in Delta Airlines’ decision to fire Ellen Simonetti for posting inappropriate pictures of herself while dressed in the Delta flight attendant’s uniform and in Delta aircraft even though her blog did not reveal her real name, the city where she was, or the name of the airline.

To be fair, the employers’ side remains unheard since doocing remains unlitigated and managements are advised against commenting for legal reasons or public relations considerations.

At the level of corporate policy, companies’ motivation to maintain their corporate image and reputation that is driving doocing may be redeployed to work to actually promote blogging and free speech. For instance, employee blogs may be encouraged to benefit companies, because there can be no better advertisement for a company than its employees. In fact, companies such as IBM and Microsoft have capitalised on this free advertising tool and enhanced their reputations as employers by encouraging employee blogs. HP lists employee blogging as #5 on its list of ambitious company characteristics.

Even for firms that prefer to remain unpublicised, such employee blogs may act as an effective human resource filtering tool that could attract people who share the company’s values. In future, companies that encourage blogs may also include guidelines for it, as in the case of Sun Microsystems, to avoid being sued by third parties. Cisco, for instance, was sued by third parties for content on the blog of Richard Frenkel, its IP counsel.

At an individual level, it is not merely a question of whether employers ought to be permitted to do so, but for existing and potential employees to be aware that just as in the case of real-world networking tools, the Internet is an enduring information tool that may be leveraged to build up or drive down one’s career graph. Just as employees utilise the Internet to learn about and evaluate companies as they plan their careers, employees’ Internet speech has provided employers with an opportunity to evaluate employees, hear their real opinions beyond formal interviews or official meetings.

Thus, employees or students can no longer assume that their comments on their supervisors or their professors (especially on social networking sites such as Orkut or Facebook that are the antithesis of anonymity) will not be read by them, or that HR departments or interviewers will choose to ignore information that is only a click away on the world wide web.

Thus, managing profiles and speech on the Internet is as important as similar conduct was in the brick-and-mortar world. And, it may be a key factor not only in these pink slip-fraught times but also in the future, for candidates with an eye on long-term career maps.

(Aarthi S. Anand is a corporate attorney and IT law specialist.)

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