Legal tidbits on blogging while an employee

Simpsons legal reference

I have written some form of a weblog since 1994. A lot has changed in my life over the last 11 years, but I always have claimed my personal Web space as my own and free of paycheck influence. Most companies are not used to employees having outside endeavors such as a weblog so I attempt to raise the issue with each of my employers using a language they understand: employment law.

Most employment contracts contain a provision where the employee must waive the right to any invention developed while an employee of the corporation. It’s a not so nice provision that basically says “we own you” and everything you do and is standard boilerplate in all of the templated employment contracts used so prevalently throughout the business world.

California law protects against an employer owning all of your work and all of your waking hours. California Labor Code section 2870 provides some basic employee rights regarding intellectual property. if your outside work at its conception is unrelated to your employer’s business and done on your own time (nights, weekends, etc.) it belongs to you. Due to restrictions over employee assignment inventions each employee has the opportunity to claim previous and ongoing inventions at the time of employment. I claim my weblog as a previous invention.

Why claim a weblog as a previous invention? It forces a conversation within the corporate machine. The employer must review the document and take action. I want to separate the writing of my weblog from my day job. I also do not want my employer to view my weblog as a marketing vehicle.

I also believe a California employer restricting an employee from having a personal weblog is in violation of California Business and Professions Code section 16600 but that case of non-compete has yet to be proven. I have considered placing advertisements on my weblog if only to generate enough revenue to have my weblog considered a part-time job by the legal system. Bloggers gain industry reputation through their weblogs through their knowledge and passion. Is this moonlighting? I do not think so. An employer preventing an employee from writing a weblog could be seen as preventing the employee from engaging in a trade or profession.

Enough of the legal talk. In the end law is largely up to interpretation requires someone to act on its violations. Employers usually have enough money to prove you are, as Johnnie Cochran liked to say, “innocent until proven broke.”

Your mileage may vary, I am not a legal expert, but I love to see free expression. More conversations need to happen and the world needs more cultures of trust. Maybe the avenues provided by the law can help get you there.

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