Getting Dooced: Employee Blogs and Employer Blogging Policies under the National Labor Relations Act

Statistics show that a growing percentage of American workers maintain personal blogs. The fact that employees use personal blogs to discuss their experiences at work creates concerns for employers and the employees themselves. Employers worry that employee bloggers will make disparaging remarks about their companies, divulge trade secrets, or simply embarrass their companies. Employees worry about job security and their ability to communicate with fellow employees about job-related concerns. Analysis of the legal rights possessed by employee bloggers reveals that the National Labor Relations Act (NLRA) provides employees with protection from adverse employment actions in certain circumstances. The NLRA protects employee concerted activity for mutual aid or protection. Based on the text and purpose of the NLRA, as well as case law interpreting this statute, courts should adopt a two-part test to determine whether an employee blogger receives legal protection. First, courts should require that the blog constitute a collective blog or spokesperson blog to be protected. Second, courts should also require that the blog discussion reveal an intent to spur protected group activity. In addition to this two-part test, courts should hold that under the NLRA, employers may not create policies with overbroad restrictions concerning the material on the personal blogs of employees because such restrictions infringe on employee rights to engage in concerted activity for their mutual aid or protection