Wednesday, January 30, 2008

Company Blogging Policy


"When I was a small boy in Kansas, a friend of mine and I went fishing. . . . I told him I wanted to be a real Major League baseball player, a genuine professional like Honus Wagner. My friend said that he'd like to be President of the United States. Neither of us got our wish."

by Dwight David Eisenhower, 34th President of the United States

False Claims Act Public Disclosure

In United States ex rel. UNITE HERE v. Cintas Corp., 2007 WL 4557788 (N.D.Cal., Dec. 21, 2007), the district court (Hon. Phyllis J. Hamilton) stated in dicta that an internet posting on a government website was equivalent to "news media".

Anonymous Blogging

I just finished a teleseminar on blogging issues in the workplace, and in getting prepared, came across an article that I thought, in fairness, I should share with those of you who wish to anonymously blog and make it as difficult as possible for anyone to determine your identity. Ethan Zuckerman has an article entitled A Technical Guide to Anonymous Blogging dated April 13, 2005 which can be found at

Company Blogging Policy

Let me share with you a checklist, not necessarily exhaustive, of what ought to be included in an employer's electronic usage policies.

  1. The policy should prohibit disclosure of trade secrets, trademark, copyright or other confidential, proprietary non-public information.

  2. It should prohibit the use of the company's name, logo, or slogans.

  3. Blogging on the clock/on company time should be prohibited.

  4. Blogging, using company equipment and company electronic systems, should be prohibited.

  5. Any electronic communication, using company equipment or company electronic systems, may not include disparaging, threatening, harassing, or other inappropriate content whether it be about the company, its employees or others.

  6. Any non-business electronic communication should clearly indicate that the content of the communication contains the opinions and views of the writer, and not the company.

  7. The policy should clearly indicate that violation thereof may subject the employee to immediate disciplinary action, including termination.

  8. The policy should clearly indicate that the equipment and electronic systems are the property of the company, that there is no right of privacy whatsoever with respect to electronic communications on company equipment or using company systems, and that the company may at any time for any reason monitor electronic communications.

  9. The policy should warn employees that they may be held legally responsible for the content of such communications, including a blog, if it violates the law, for example, trade secret laws, the copyright laws, and privacy concerns.

In working with an employer-client to develop such a policy, one should craft the policy with the employer's particular industry in mind. For example, financial institutions have customer information that needs to be carefully protected, including Social Security numbers and account numbers.

When Might an Employer Be Responsible for Comments Posted by Employees

In Blakey v. Continental Airlines, Inc., 751 A.2d 538 (June 1, 2000), the airline provided pilots with a software package which allowed them to communicate with each other through posts, similar to blogs. When a number of male pilots posted inappropriate comments, a female pilot filed suit, claiming harassment and discrimination. The airline contended that, as it did not sponsor the site, it was not libel for the comments. The court declined to adopt the airline's sponsorship test, and instead held that if the airline benefited from the site, it could be vicariously liable for the comments.

That Famous/Infamous Tribune Company Employee Handbook

The blogosphere has been chattering about the eleven page new handbook issued by the Tribune Company. An excellent summary of the handbook can be found on the Connecticut Employment Law Blog. The Ohio Employer's Law Blog of January 22, quotes the harassment policy, and notes that the policy mistakenly limits the definition of sexual harassment to quid pro quo. Apparently, the Tribune chose not to have its lawyers review the policy.

Whistleblower Protections for Employees of Defense Contractors

On January 28, 2008, the President signed into law the National Defense Authorization Act for Fiscal Year 2008, which includes provisions protecting employees of defense contractors who allegedly blow the whistle on contractor fraud. The full text of Section 846 of the Act and the text of 10 U.S.C. Section 2409 are at the end of today's blog.

Section 846

(a) Increased Protection From Reprisal- Subsection (a) of section 2409 of title 10, United States Code, is amended--
(1) by striking `disclosing to a Member of Congress' and inserting `disclosing to a Member of Congress, a representative of a committee of Congress, an Inspector General, the Government Accountability Office, a Department of Defense employee responsible for contract oversight or management,'; and
(2) by striking `information relating to a substantial violation of law related to a contract (including the competition for or negotiation of a contract)' and inserting `information that the employee reasonably believes is evidence of gross mismanagement of a Department of Defense contract or grant, a gross waste of Department of Defense funds, a substantial and specific danger to public health or safety, or a violation of law related to a Department of Defense contract (including the competition for or negotiation of a contract) or grant'.
(b) Clarification of Inspector General Determination- Subsection (b) of such section is amended--
(1) by inserting `(1)' after `Investigation of Complaints- ';
(2) by striking `an agency' and inserting `the Department of Defense, or the Inspector General of the National Aeronautics and Space Administration in the case of a complaint regarding the National Aeronautics and Space Administration'; and
(3) by adding at the end the following new paragraph:
`(2)(A) Except as provided under subparagraph (B), the Inspector General shall make a determination that a complaint is frivolous or submit a report under paragraph (1) within 180 days after receiving the complaint.
`(B) If the Inspector General is unable to complete an investigation in time to submit a report within the 180-day period specified in subparagraph (A) and the person submitting the complaint agrees to an extension of time, the Inspector General shall submit a report under paragraph (1) within such additional period of time as shall be agreed upon between the Inspector General and the person submitting the complaint.'.
(c) Acceleration of Schedule for Denying Relief or Providing Remedy- Subsection (c) of such section is amended--
(1) in paragraph (1), by striking `If the head of the agency determines that a contractor has subjected a person to a reprisal prohibited by subsection (a), the head of the agency may' and inserting after `(1)' the following: `Not later than 30 days after receiving an Inspector General report pursuant to subsection (b), the head of the agency concerned shall determine whether there is sufficient basis to conclude that the contractor concerned has subjected the complainant to a reprisal prohibited by subsection (a) and shall either issue an order denying relief or shall';
(2) by redesignating paragraphs (2) and (3) as paragraphs (4) and (5), respectively; and
(3) by inserting after paragraph (1) the following new paragraphs:
`(2) If the head of an executive agency issues an order denying relief under paragraph (1) or has not issued an order within 210 days after the submission of a complaint under subsection (b), or in the case of an extension of time under paragraph (b)(2)(B), not later than 30 days after the expiration of the extension of time, and there is no showing that such delay is due to the bad faith of the complainant, the complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint, and the complainant may bring a de novo action at law or equity against the contractor to seek compensatory damages and other relief available under this section in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. Such an action shall, at the request of either party to the action, be tried by the court with a jury.
`(3) An Inspector General determination and an agency head order denying relief under paragraph (2) shall be admissible in evidence in any de novo action at law or equity brought pursuant to this subsection.'.
(d) Definitions- Subsection (e) of such section is amended--
(1) in paragraph (4), by inserting `or a grant' after `a contract'; and
(2) by inserting before the period at the end the following: `and any Inspector General that receives funding from, or has oversight over contracts awarded for or on behalf of, the Secretary of Defense'.

10 USC § 2409

Sec. 2409. Contractor employees: protection from reprisal for
disclosure of certain information
(a) Prohibition of Reprisals.--An employee of a contractor may not
be discharged, demoted, or otherwise discriminated against as a reprisal
for disclosing to a Member of Congress or an authorized official of an
agency or the Department of Justice information relating to a
substantial violation of law related to a contract (including the
competition for or negotiation of a contract).
(b) Investigation of Complaints.--A person who believes that the
person has been subjected to a reprisal prohibited by subsection (a) may
submit a complaint to the Inspector General of an agency. Unless the
Inspector General determines that the complaint is frivolous, the
Inspector General shall investigate the complaint and, upon completion
of such investigation, submit a report of the findings of the
investigation to the person, the contractor concerned, and the head of
the agency.
(c) Remedy and Enforcement Authority.--(1) If the head of the agency
determines that a contractor has subjected a person to a reprisal
prohibited by subsection (a), the head of the agency may take one or
more of the following actions:
(A) Order the contractor to take affirmative action to abate the
(B) Order the contractor to reinstate the person to the position
that the person held before the reprisal, together with the
compensation (including back pay), employment benefits, and other
terms and conditions of employment that would apply to the person in
that position if the reprisal had not been taken.
(C) Order the contractor to pay the complainant an amount equal
to the aggregate amount of all costs and expenses (including
attorneys' fees and expert witnesses' fees) that were reasonably
incurred by the complainant for, or in connection with, bringing the
complaint regarding the reprisal, as determined by the head of the
(2) Whenever a person fails to comply with an order issued under
paragraph (1), the head of the agency shall file an action for
enforcement of such order in the United States district court for a
district in which the reprisal was found to have occurred. In any action
brought under this paragraph, the court may grant appropriate relief,
including injunctive relief and compensatory and exemplary damages.
(3) Any person adversely affected or aggrieved by an order issued
under paragraph (1) may obtain review of the order's conformance with
this subsection, and any regulations issued to carry out this section,
in the United States court of appeals for a circuit in which the
reprisal is alleged in the order to have occurred. No petition seeking
such review may be filed more than 60 days after issuance of the order
by the head of the agency. Review shall conform to chapter 7 of title 5.
(d) Construction.--Nothing in this section may be construed to
authorize the discharge of, demotion of, or discrimination against an
employee for a disclosure other than a disclosure protected by
subsection (a) or to modify or derogate from a right or remedy otherwise
available to the employee.
(e) Definitions.--In this section:
(1) The term ``agency'' means an agency named in section 2303 of
this title.
(2) The term ``head of an agency'' has the meaning provided by
section 2302(1) of this title.
(3) The term ``contract'' means a contract awarded by the head
of an agency.
(4) The term ``contractor'' means a person awarded a contract
with an agency.
(5) The term ``Inspector General'' means an Inspector General
appointed under the Inspector General Act of 1978.

(Added Pub. L. 99-500, Sec. 101(c) [title X, Sec. 942(a)(1)], Oct. 18,
1986, 100 Stat. 1783-82, 1783-162, and Pub. L. 99-591, Sec. 101(c)
[title X, Sec. 942(a)(1)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-162;
Pub. L. 99-661, div. A, title IX, formerly title IV, Sec. 942(a)(1),
Nov. 14, 1986, 100 Stat. 3942, renumbered title IX, Pub. L. 100-26,
Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 102-25, title
VII, Sec. 701(k)(1), Apr. 6, 1991, 105 Stat. 116; Pub. L. 102-484, div.
A, title X, Sec. 1052(30)(A), Oct. 23, 1992, 106 Stat. 2500; Pub. L.
103-355, title VI, Sec. 6005(a), Oct. 13, 1994, 108 Stat. 3364; Pub. L.
104-106, div. D, title XLIII, Sec. 4321(a)(10), Feb. 10, 1996, 110 Stat.