Social Isolation and American Workers: Employee "Blogging" and Legal Reform

TABLE OF CONTENTS I. INTRODUCTION II. BLOGS: A PRIMER III. SOCIAL ISOLATION IN AMERICA A. The Decline in Interpersonal "Connectedness" B. The Workplace as a Nexus of Interpersonal Connectivity C. The Law and Declining Workplace Connectivity IV. BLOGGING AS A GENERATOR OF EMPLOYEE CONNECTIVITY V. EMPLOYEE BLOGGING AND THE NATIONAL LABOR RELATIONS ACT A. Overview B. Blogs as Concerted Activity C. Blogs as Involving Mutual Aid or Protection D. Blogs as Abusive, Insubordinate, or Disloyal Conduct E. Employers' Interests Under the NLRA. F. Summary VI. STATE LAW PROTECTIONS FOR EMPLOYEE BLOGGERS A. State Common Law B. State Statutory Protections VII. POSSIBLE AVENUES FOR REFORM: THE APPEALING "BRIGHT LINES" OF STATE LEGISLATIVE ACTION A. Overview B. NLRA Reform C. State Common Law Reform D. State Legislative Reform of Off-Duty Conduct Statutes VIII. JUSTIFYING THE PROTECTIONS AFFORDED TO EMPLOYEES WHO BLOG IX. CONCLUSION I. INTRODUCTION For many employees, blogs have become "virtual union halls" where employees can connect, building social ties and reducing the isolation inherent in present-day American life. (1) Employees, even extremely busy ones like investment bankers or attorneys, (2) can use off-duty blogging (3) to easily communicate and connect with fellow employees. Blogs allow employees to discuss a broad range of topics, both work-related4 and personal, and create a sense of community with their co-workers. (5) Therefore, we believe, off-duty employee bloggers deserve legal protections commensurate with their roles as builders of social communities. American workers, and indeed Americans generally, are becoming increasingly socially isolated. (6) A recent empirical study conducted by Professors Miller McPherson, Lynn Smith-Lovin, and Matthew Brashears found a precipitous decline over the past two decades in the number of confidants with whom Americans discuss important matters. (7) The number of people saying there was no one with whom they discussed important matters more than doubled, and, increasingly, even those who had a confidant frequently had only one--their spouse. (8) In 1985, about thirty percent of people had at least one confidant among their co-workers. (9) That proportion fell to only eighteen percent in 2004. (10) The McPherson study supports the notion that conversation in the workplace is more superficial than it once was. (11) Younger workers (aged eighteen to thirty-nine) are seeking a broader range of less intense relationships. (12) The McPherson study specifically points to the role new technologies have played in changing the communication patterns of Americans, particularly the young. (13) Such technologies "may foster a wider, less-localized array of weak ties, rather than the strong, tightly interconnected" ties traditionally observed. (14) While this development may not be entirely negative, the study recommends further examination of the ways in which such technologies can foster stronger social connections. (15) The McPherson study builds upon prior research in this area, especially the work of Professor Robert Putnam.16 Using descriptive statistics, Putnam argues that "social connectedness" in the United States has sharply declined in recent decades. (17) Putnam points to an increase in the number of dual-career families, (18) increased geographic mobility, (19) long commutes to work, (20) and the near abolition of private sector unionization (21) as evidence of this phenomenon. Though Putnam's work has been criticized, (22) he was recently vindicated by similar findings in the comprehensive McPherson study. Putnam himself noted that the study reinforces much of what he previously reported, while leaving open the "interesting" question of how the Internet can be used "to strengthen and deepen relationships we have offline." (23) The ability of blogs to serve such a community-building function has been called into question, as the rights of employees who blog outside of work have come under increased scrutiny. …