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March|April 2004
Not So Bon Voyage By John Swansburg
World Wide Water Cooler By Charles Duhigg
Taken to the Cleaners By Katharine Mieszkowski
the prudent jurist By Stephen Gillers
Cases & Controversies
The Shawshank Reputation By John Swansburg

World Wide Water Cooler

Can you be fired for complaining about your boss online?

By Charles Duhigg

WALKING ACROSS MICROSOFT'S CAMPUS in Redmond, Wash., last October, Michael Hanscom stumbled across a delivery of new Power Mac G5 computers. Hanscom, a contract employee with Xerox who worked in Microsoft's print shop, was amused by his discovery. Although Microsoft produces software for Apple's Macintosh computers, the enmity between Bill Gates and Apple was legendary earlier in the personal computer age. So Hanscom thought the shipment worthy of a photo, which he later posted on his weblog—a type of Internet diary—under the headline "Even Microsoft wants G5s."

Four days later, Hanscom was called into his supervisor's office and asked about the weblog, which he writes from home after work. "It's your site on your own server," his boss said, according to Hanscom's website, so "you have the right to say anything you want. Unfortunately, Microsoft has the right to decide that because of what you said, you're no longer welcome on the Microsoft campus." With that, Hanscom was fired. (Hanscom's supervisor and a Microsoft spokesperson refused to discuss the incident.)

Today's technology allows gripes about employers to reach well beyond the water cooler, offering individuals almost unlimited opportunities to rant publicly about the most mundane topics. Over 1.2 million weblogs, or blogs, grace the Internet, broadcasting the innermost thoughts of average citizens on everything from conspiracy theories about reality television to gossip about sexual indiscretions among small-town politicos. And, of course, they blog about whom they dislike at work and why their boss is a moron.

Not surprisingly, it turns out the bosses are listening. Greg Webster, 33, was let go from a Canadian law firm last year after using a blog to "vent his frustrations by posting libelous comments," according to his boss. Heather B. Armstrong, 27, blogged about getting fired after her employer discovered company executives described online as "Her Wretchedness" and "Vice President of Enabling His Fist Up Your Ass." And one high-profile blog cost a popular columnist his job with ESPN's website after he used the blog (on another site) to criticize executives at Disney, ESPN's parent company, in a way some people considered anti-Semitic.

Contests between an employee's right to speak his or her mind and the company's right to object have a long legal history, and they are almost always won by the corporation. Even if worker gossip isn't intended to harm a company or doesn't rise to the level of defamation, most at-will employees can be fired for complaining in public as long as the dismissal isn't related to the worker's race, faith, union membership, or similar factors. Employees of the government enjoy certain protections, such as freedom of speech. (One famous case from 1968, Pickering v. Board of Education, reinstated a public school teacher who was fired after criticizing the school board in a letter to the editor.) But employees in the private sector have few such protections. "Speech is protected from government censorship, not private censorship," explains Jonathan Zittrain, a professor at Harvard Law School. "Unless you have a contract that says otherwise, every day you go to work your boss gets to decide if they want to hire you that day."

Some Internet activists argue that blogging should be a protected activity, with guarantees comparable to those that permit unions to air criticism as part of organizing activity. Union organizers have a legal right to publicly complain about corporate bosses, the law says, in the service of addressing an imbalance of power. Similarly, bloggers argue their extracurricular activities are one of the few means available to address the banal miseries of office life. Many hail legislation passed in California in 1999 that sought to protect employees' off-duty activities by prohibiting the termination of any employee for "lawful conduct occurring during nonworking hours away from the employer's premises." But earlier this year, a California state appellate court stymied those hopes when it upheld an employee's dismissal for dating a subordinate, a ruling now under appeal. The 1999 legislation, the court ruled, does "not create new substantive rights for employees." Even in the Golden State, whom you date can still cost you your job, as can what you say, regardless of where you say it.

Because Hanscom was an at-will employee, his termination was lawful—and, many would say, unsurprising. Chief executives have long tried to control corporate images by regulating what employees can do and say. What is radically new, however, is how easy it has become for rumor and complaint to find wide-ranging audiences. The Internet is rife with websites that allow anonymous sniping at corporate executives. In the technology industry, where electronic communication is considered a birthright, almost every company has at least one employee detailing his or her life on the Internet.

Very few companies have blogging policies, however. Microsoft has no official position on employee weblogs, and hundreds of Microsoft employees blog every week. None, except Hanscom, have been fired for any of their posts, says a company spokesman. One Microsoft employee, Robert Scoble, was even hired in part because his blogging about the technology industry caught the attention of Redmond executives. Since joining the software giant, however, he has begun self-censoring his online commentary. "Why? Because everything I do is amplified," Scoble writes on his blog. "I used to attack industry figures. . . . Today I can't do that. Why? Because it would come off as Microsoft attacking, not Scoble attacking."

Scoble's logic helps to explain why so few policies regulating what employees can and can't say on their blogs exist in corporate America. Attorneys note that no company has, to date, been prosecuted for anything appearing on an employee's weblog. But lawsuits holding companies liable for employee e-mails signal the perils corporations may face when they officially recognize blogs. Numerous suits have argued that companies are complicit in creating hostile work environments when employees use corporate e-mail to send sexual or otherwise offensive correspondence to co-workers. In 2000, the New Jersey Supreme Court ruled that Continental Airlines could be held liable for comments a pilot posted on a computer bulletin board describing a female fellow pilot as a "feminazi." (The case was resolved with a confidential out-of-court settlement in 2001.) Legal experts agree that there is little employers can do to prevent workers from blogging on their own time, but if companies officially sanction blogs via corporate policy, they may be held responsible for what employees say. So corporations may be avoiding the topic on purpose. Ignorance may not be bliss, but it can make for a decent defense.

Microsoft executives may come to regret their decision to fire Hanscom. After his dismissal, Hanscom quickly posted his tale on his blog. A few days later, his story began to circulate on the web, and a link to his blog appeared on Slashdot, the enormously popular meta-blog serving the technology community under the motto "News for Nerds. Stuff that matters." Within a day, hundreds of thousands of visitors had swamped Hanscom's web pages, and he was receiving approximately 250 e-mail messages an hour. His story appeared on the front page of The Seattle Post-Intelligencer and was mentioned on CNN. Concerned citizens donated enough money to cover his rent for the next month.

As Microsoft learned, even if controlling employee weblogs is legal, it isn't easy.

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