exits

This page considers blog-related dismissals, ie employees being fired on the basis of comments in their blogs.

It covers -

• introduction
• how many dismissals?
• a media phenomenon?
• overseas incidents
• Australia
• issues
• responses
• studies

It supplements discussion of enterprise blogging earlier in this profile. It is complemented by a broader exploration of labour, unions and employment in the digital environment and discussion of workplace censorship. Writing about social network-related dismissals (eg being 'busted' for content on Facebook and MySpace) features here.

     introduction

A handful of high-profile incidents during 2004 and 2005 saw expressions of anxiety in the blogosphere - and surprise in the mainstream media - about employees being dismissed for comments made in personal blogs.

Some of those comments were pseudonymous or did not directly identify the employer but were perceived as critical of the organisation or disruptive of workplace relations (eg denigrated executives or made fun of colleagues). Some were claimed to bring the employer into disrepute or to expose the employer to vicarious liability. Others revealed information that was claimed as bringing the blogger into disrepute, including statements about past/current sexual practice and substance intake.

Blog-related exits supposedly proliferated as people made incautious comments about their employers or clients and employers came to grips with such publishing. One US law journal thus referred to blog-related firings as "the tech trend of 2005".

     how many dismissals?

Contrary to such alarms about a coming wave of blog-related dismissals there does not appear to have been a large number of firings in Australia, North America and elsewhere.

That has variously been attributed to -

• organisations relying on persuasion (and alerting employees to corporate communication guidelines) rather than terminating what one contact characterised as "gabby staff"
• employer reliance on other justifications in dismissing employee (eg the offensive blog post may have been the real reason for departure but the employer used other reasons in identifying why the blogger was let go)
• people claiming that they were dismissed for a blog post rather than for a history of disagreement with management, conflict with colleagues, incompetence or mere bad fortune
• the rarity of egregious posts by employees and a sensible attitude by employers in dealing with inappropriate comment
• ignorance or even indifference on the part of employers regarding what personnel are posting on company time and on a purely private basis.

It has also been attributed to employer use of non-disclosure agreements in firing personnel, ie employees are indeed being 'busted for blogging' but those dismissals are not becoming public and are not being collated by government agencies or academic bodies.

There is disagreement about claims from network security solution vendors that blogging is a major threat and that organisations are firing staff on a large scale. US vendor Proofpoint has attracted attention for claims that 7% of US companies have fired an employee for blogging or bulletin board postings (with 27% firing an employee for violating email policies and over half having disciplined employees for violating those policies).

     a media phenomenon?

That disagreement is reflected in suggestions that blog-related firings are a media phenomenon - something that has grabbed headlines on 'slow news days' and provided fodder for tech journalists - rather than a fundamental problem or an "epidemic" that threatens the blogosphere and free speech.

Blogging (including anonymous or pseudonymous blogging) is not exempt from law dealing with confidentiality, personal privacy, hatespeech, defamation, stalking, discrimination and bullying. Much media coverage of blog-related dismissals has been resolutely anecdotal, with little effort to explore the circumstances of specific incidents or to identify instances in which firing would be unremarkable.

There has also been little effort to undertake research about the history of particular bloggers, some of whom gained publicity prior to dismissal for matters such as substance intake, had a history of disagreements with supervisors or closely resembled 'the colleague from hell'.

A more searching analysis would encompass examination of dismissals attributable to communication outside the web, including letters to newspapers, articles in magazines and scholarly journals that feature criticisms of employers, contributions to union newsletters and appearances on television and radio (whether as critics or 'the defendant'). Should blogging be any different?

     overseas incidents

In September 2004 Joyce Park (aka Troutgirl) was reportedly fired from a development position with social network service operator Friendster for blogging about that business.

Claiming that she had written only a couple of Friendster-related blog entries, she commented

I felt I didn't say anything disparaging. Friendster is in the business of getting people to reveal information about themselves, and for them to terminate me like this is sort of undermining their whole mission.

Heather Armstrong, a US web designer fired for writing about her work online, lent her moniker to blog-related sacking ... referred to by some bloggers as getting "Dooced".

Her blog forthrightly featured information about her life, complaints about work and unflattering descriptions of co-workers and supervisors. Armstrong did not identify her employer and reportedly never mentioned colleagues by name. After being alerted by an anonymous email from a co-worker her employer fired her, explaining that the firm had a zero-tolerance policy for 'negativity' and that the blog unduly influenced younger colleagues.

Wells Fargo similarly dismissed an employee after managers learned of his blog, which made fun of some co-workers.

Jeremy Wright, author of Blog Marketing (New York: McGraw-Hill 2005), sarkily blogged from a Canadian health service provider while the corporate server was down for three hours -

Getting to surf the web for 3 hours while being paid: Priceless. Getting to blog for 3 hours while being paid: Priceless. Sitting around doing nothing for 3 hours while being paid: Priceless. Installing Windows 2000 Server on a P2 300: Bloody Freaking Priceless.

He was fired a year later, with the employer indicating that unauthorised release of information about the network was an infringement of his nondisclosure duty. Ironically, it appears from Wright's blog that he had previously submitted his resignation

The UK saw what was claimed as its first blog-related termination in January 2005, with bookseller Joe Gordon reportedly being axed by Waterstone's for "gross misconduct" and "bringing the company into disrepute" after mentioning bad days at work and satirising his "sandal-wearing" boss.

Software expert Mark Pilgrim was reportedly dismissed following controversy over revelation on his personal blog that he had formerly used drugs. Although Pilgrim no longer used drugs his manager is reported as having demanded that he take down his blog. The manager refused Pilgrim's offer to compromise by unlinking his blog from the programming site. When Pilgrim posted his resume on his blog in anticipation of being fired, his manager used the posting as a reason to fire Pilgrim.

In 2006 blogger Catherin Sanderson (aka 'La Petite Anglaise'), a secretary in the Paris office of accountants Dixon Wilson, was allegedly told that she was being dismissed for gross misconduct because of her blog. She commented that "I was shocked. It was a bolt out of the blue, I was not given any warning".

Her employer reportedly claimed that she used office time to work on the blog and tacitly identified the company. She responded by posting news of her dismissal and seeking around £54,000 under French labour law. An employment tribunal in Paris endorsed her complaint of unfair dismissal, awarding a year's salary (£29,900) plus legal costs in 2007.

Microsoft contractor Michael Hanscom ruffled corporate feathers at Redmond with a photo on his blog of Apple computers being delivered to Microsoft HQ, captioned "Even Microsoft wants G5s". After that MS did not want Hanscom.

Ellen Simonetti's Queen of the Sky: Diary of a Flight Attendant blog featured images of herself in Delta uniform, in mildly seductive poses. She alerted Delta management to the blog, reportedly in the hope that the airline would advertise on her pages. It fired her instead.

New Google staffer Mark Jen Jen described in detail Google's employee orientation program, hinted at new products and briefly discussed his impressions of company's financial situation. He had injudiciously blogged immediately prior to a quarterly financial report and just before colleagues were about to become vested. Out he went, after two weeks.

Matthew Brown of Starbucks expressed his irritation after his boss refused to let him go home sick. Starbucks found the post, Brown was dismissed.

Rachel Mosteller was fired by the Durham Herald-Sun a day after her blog criticised her employer, including the statement "I really hate my place of employment". Mosteller had used a pseudonym, did not name her company or where it was based and did not name her colleagues.

Boston University adjunct professor Michael Gee was "indiscreet" soon after staring work at the College of Communication, famously describing one of his students as "incredibly hot". The University disagreed with his openness and he was terminated.

PhD student Meg Spohn was more controversially axed from DeVry University for criticism of that institution. She commented that

I still don't know what post of mine was supposed to have been so offensive. DeVry told me I was being "let go" because I said disparaging things about them and about the students in my blog, but they wouldn't say what exactly they objected to. It's not like I ever said anything like, "DeVry sucks!" - whatever it is, it's not obvious to me, or to the students (who just started reading it post-dooce - no DeVry student EVER complained about my blog). And I certainly never said anything negative about the students, because I have nothing negative to say. They're terrific: entertaining and inspiring every day. I really miss them.

My blog is just about what's going on in my life and what I'm thinking about. It never occurred to me that my thoughts would offend somebody, never mind get me fired. As far as I knew, until a couple of weeks ago, I had security by obscurity anyway. Why would anybody even care what I was noodling about? My firing was utterly surreal to me.

US federal attorney David Lat was strongly encouraged to find a new employer after controversy regarding his 'Underneath Their Robes' blog, where he posted in the guise of Article III Groupie, an Ivy League female attorney with a penchant for gossip about federal court judges, That included identifying the "superhotties" of the federal judiciary.

Nadine Haobsh ("dubbed 'the poster girl for the blogger generation' by the New York Post), associate beauty editor at Ladies' Home Journal, was asked to leave that position and had a job offer at Seventeen withdrawn after the magazines discovered she was blogging on 'Jolie in NYC' about work. Haobsh subsequently gained a two-book publishing deal.

Kelly Kreth was fired from her job as marketing and public relations director at a Manhattan real estate firm Dwelling Quest in 2005 for blogging about her co-workers, including the characterisation of a superior as shrill, loud and classless.

US congressional staffer Jessica Cutler, as 'Washingtonienne', offered information about a taco-eating contest and ongoing sexual interaction (some on a paid basis) with up to six different men. Her blog survived for two weeks before she was publicly identified and fired. Cutler - subsequently hyped as "an American uber-individualist demanding the right to tell her own story her own way", - was reportedly offered a six-figure book deal and an opportunity to pose naked in Playboy, claiming that those outcomes were not her motivations for blogging.

Other examples of post-blog terminations in the US are here.

In Australia the federal Liberal Party deselected candidate Hamish Jones for the seat of Maribyrnong in 2007 after a furore over his ungentlemanly description of Victorian cabinet minister Lynne Kosky on his blog. Liberal Party state director Julian Sheezel announced that Jones had "withdrawn his candidature" for Maribyrnong, commenting that "He has published a very indiscreet and improper blog site, which makes his candidacy untenable".

Courseware developer Leigh Blackall was reportedly fired from the Educational Development Centre at the University of Western Sydney in 2005 over comments in his blog.

     issues

What issues are posed by blog-related firings?

For many observers the key issues are -

• the shape of corporate control of employees
• whether employment overrides perceived rights of free speech, with dismissal of employees for expression online or offline
• whether employees misunderstand rights, risks and responsibilities in blogging.

Does an employer have rights over an individual's personal life, including that person's choice of associates, dress and consumption? Can people be fired for innocuous content in blogs, for content in other online venues (eg party photos in Facebook and MySpace profiles, exchanges in adult chatrooms or financial bulletin boards) or appearances offline (eg being seen at a union rally, a casino or the Sydney Gay Mardi Gras)? The answer is yes, depending on circumstances and jurisdiction.

Does control extend to restrictions on expression that do not identify the employer or utilise the employer's corporate network?

Expressions of unhappiness about life as a member of the binary proletariat - such as Net Slaves: True Tales of Working the Web (New York: McGraw-Hill 1999) by Bill Lessard & Steve Baldwin and From Widgets to Digits: Employment Regulation For The Changing Workplace (Cambridge: Cambridge Uni Press 2004) by Katherine Stone - are highlighted here.

Rafael Gely & Leonard Bierman's 2007 'Social Isolation & American Workers: Employee Blogging and Legal Reform' (PDF) in 20(2) Harvard Journal of Law & Technology, 288-484, characterises blogs as

'virtual union halls' where employees can connect, building social ties and reducing the isolation inherent in present-day American life

so that "off-duty employee bloggers deserve legal protections commensurate with their roles as builders of social communities".

     responses

In practice, most bloggers need to help themselves rather than relying on intervention by government or unions and sympathy from the blogosphere. Not all firings lead to an offer from a publisher.

One response is for bloggers to be aware of questions and law highlighted earlier in this profile.

Other responses include -

• avoiding litigious issues (including expressions that might be construed as vilification or bullying) and matters that are likely to annoy a supervisor enough to fire you
• being familiar with and observing terms of employment (particularly if you are a US employee in an 'at will' dismissal jurisdiction)
• having a sense of financial disclosure and intellectual property frameworks
• not relying on pseudonymity (and if you do, recalling that several bloggers have been 'dobbed in' by colleagues and thereafter shown the door)
• being familiar with and observing the employer's policy on blogging, on corporate communication and on private use of corporate facilities/services (eg what you cannot do via the employer's internet connection)
• recognising that your perceptions of the world (or merely that of the organisation's brand and relationships with other entities such as customers and suppliers) may be different to executives and institutional gatekeepers such as lawyers and public relations personnel
• understanding that law in your jurisdiction may be quite different to that in other parts of the world, so that protections and remedies in the US for example are not available to you.

Matters that are likely to concern those gatekeepers include -

• erosion of the organisation's corporate image and relationships with other parties, including denigration of business partners
• unauthorised disclosure of financial or other confidential information, which might include product releases, technical details, executive appointments
• criticisms of the capability, commitment or ethics of executives and co-workers
• revelation of personal attributes that are inconsistent with expectations about 'corporate comportment' - what one HR person characterises as breaching the unwritten 'don't ask, don't tell' policy about who you are sleeping with, how much you are drinking, what you did at the casino (especially if you are a member of clergy or banker) and whether you've thrown up yet again
• disclosure of personal information that the employer has not discovered during vetting or in the course of work, such as an undisclosed criminal conviction or boasting of successful resume fraud.

A public relations contact has thus been known to remind young geeks, creatives and lawyers that there is more 'free speech' outside academic institutions, major businesses and government agencies ... but that the price of being 'free' may be that you do not eat very well.

     studies

Charles Duhig's 2004 Legal Affairs article 'World Wide Water Cooler: Can You Be Fired For Complaining About Your Boss Online? offered a view from 2004.

More detailed coverage is provided in 'Bloggers and the Workplace: The Search for a Legal Solution to the Conflict between Employee Blogging and Employers' by Henry Hoang Pham in 26 Loyola of Los Angeles Entertainment Law Review (2005/6) 207-231; 'Myspace or Yours: The Abridgement of the Blogosphere at the Hands of At-Will Employment' by Bijal Patel in 44 Houston Law Review (2007) 777-812; 'Say What?: Blogging and Employment Law in Conflict' by Paul Gutman in 27 Columbia Journal of Law & Arts (2003) 145-185, 'Can Blogging and Employment Co-Exist?' by John Hong in 41 University of San Francisco Law Review (2007) 445-471; 'Hiding from the Boss Online: The Anti-Employer Blogger's Legal Quest For Anonymity' by Konrad Lee in 23 Santa Clara Computer and High Technology Law Journal (2006) 135-155; 'Fired For Blogging: Are There Legal Protections For Employees Who Blog?' by Robert Sprague in 9 University of Pennsylvania Journal of Labor & Employment (2007) 355-385; 'Getting Dooced: Employee Blogs and Employer Blogging Policies Under The National Labor Relations Act' by Marc Cote in 82 Washington Law Review (2007) 121-145; 'Employment termination for employee blogging: number one tech trend for 2005 and beyond, or a recipe for getting dooced?' by Stephen Lichtenstein & Jonathan Darrow in UCLA Journal of Law & Technology (2006) 4-38 and their 'At-Will Employment: A Right To Blog or A Right To Terminate?' in 11(9) Journal of Internet Law (2008); 'The Story of Me: The Underprotection of Autobiographical Speech' by Sonja West in 84 Washington University Law Review (2006) 905-58; and 'Warring Ideologies For Regulating Military Blogs: A Cyberlaw Approach for Balancing Free Speech And Security In Cyberspace' by Julia Mitchell in 9 Vanderbilt Journal of Entertainment and Technology Law (2006) 201-19.






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