Post, Like, Tweet, Snap, and Share…And
Should Public Employers Beware?
Speech and Communication Issues in the
Workplace and the Impact of Social
Media
2016 ACAA Summer Meeting
League of Arizona Cities and Towns
Presented by:
Barry Uhrman
Attorney at Law
Littler Mendelson, P.C.
Phoenix
602-474-3620
[email protected]
Agenda
• Introduction and “The Living Room”
Analogy
• Explanation of Social Media and Key
Terms
• Social Media and Public/Government
Employees
• Crafting Social Media Policies
SOCIAL MEDIA
OVERVIEW
What Do You Do When You
First Wake Up?
Social Media Explained
Definitions and Key Terms
• Definition of “Social Media”
• “Social Networking” vs. “Professional
Networking”
• The Four “Ps” and one “T” of Social
Media
• Additional Terms and Definitions
Definitions and Key Terms (cont.)
• Definition of “Social Media:
Refers to the interaction among people in
which they create, share, and/or exchange
information and ideas in virtual communities
and networks
Includes social networking and professional
networking
“Social Networking” vs.
“Professional Networking”
• “Social Networking”
 The practice of expanding social contacts by making
connections through individuals.
 A platform to build social networks or social relations
among people who may share interests, activities,
backgrounds or real-life connections.
“Social Networking” vs.
“Professional Networking” (cont.)
• “Professional Networking”
 A type of social media service that is focused solely
on interactions and relationships of a business and
professional nature rather than including personal,
non-business interactions.
 Sites allow users to make connections through which
they can find jobs, and also allow other users and
possible employers to view profiles and share
recommendations.
Definitions and Key Terms (cont.)
• The Four “Ps” and One “T” of Social Media
Personal Site
Platform
Post
Profile
Tweet
Additional Definitions
• “Twittiot” (n): a person with electronic courage
posting disparaging comments about others on
Twitter from the confines of his parents’
basement.
• “Facebook Munchausen Syndrome” (n): a
social media factitious disorder by which
Facebook users feign despair, anguish or
psychological trauma designed to elicit attention
and sympathy from the Facebook masses.
Fun with Statistics
•
30% of workers worldwide believe it is acceptable
to use social media during work hours (though
43% agreed such use undercuts productivity)
•
Worldwide, there are 1.44 BILLION Facebook
users (with 4.5 billion “likes” each day)
•
Highest Facebook usage reported from 1 PM – 3
PM during the week
•
Average time spent on Facebook is 20 minutes
•
11% of employees admit to trying to hide their
social media activity from employers or coworkers
•
Experts predict that by 2016, 60% of employers
will monitor employee social media activity
Challenges of Social Media
• Privacy breach – TM
• Disclosure of confidence
•
•
•
•
• Excessive use
• Damage to reputation
•
Employee morale/gripe sessions
•
Harassment/Title VII
•
Bullying
•
Defamation
• Misuse of intellectual property
• Off-the-clock work
Pornography, obscenity
Threats of violence
Union organizing
Unauthorized and deceptive
endorsements
• Violations of compliance
obligations
PUBLIC/GOVERNMENT
EMPLOYEES AND
SOCIAL MEDIA
The First Amendment
• The First Amendment
protects against
infringement of the right to
freedom of speech by the
government
• The First Amendment
does not protect
employees from actions by
a private employer
Public Employee Speech Issues
• What are the First Amendment issues if a public
employee is using social media during working
hours or on agency owned equipment?
• What are the First Amendment issues if a public
employee is using social media on personal time
and using personal equipment?
• Impact of work-life lines becoming more blurred.
Government Employee Rights
vs. Public Employer Interests
• Balancing Interests
First Amendment rights of public
employees
Governmental entity’s interest as an
employer
See Rendish v. City of Tacoma, 123 F.3d 1216, 1219 (9th Cir. 1997) (citing Connick
v. Myers, 461 U.S. 138, 140 (1983)); see also Bouma v. Trent, No. CV-10-0267PHX-NVW, 2010 WL 1531171, at *4 (D. Ariz. April 15, 2010) (citing Rendish and
Connick)
Government Employee Rights vs.
Public Employer Interests (cont.)
• “[A] governmental employer may impose certain
restraints on the speech of its employees, restraints that
would be unconstitutional if applied to the general
public.”
City of San Diego, California v. Roe, 543 U.S. 77, 80 (2004)
• Reconciling the employee’s right to engage in speech
with the government employer’s right to protect its
interests.
Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)
Current Standards in Public
Employee Speech Matters
1. Speaking on a matter of public concern
2. Speaking as a public employee or as a private
citizen;
3. Substantial or motivating factor in adverse action;
4. Adequate justification for treating the employee
differently from members of the general public; and
5. Whether the entity would have taken the same
action even absent the protected speech.
Current Standards in Public
Employee Speech Matters (cont).
Relevant Case Law
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle
429 U.S. 274, 285-86 (1977)
(Causation)
City of San Diego v. Roe
543 U.S. 77, 82-83 (2004)
(Speech must touch on a matter of public concern)
Garcetti v. Ceballos
547 U.S. 410, 423-24, 426 (2006)
(Speech must not be made pursuant to duties as employee)
Current Standards in Public
Employee Speech Matters (cont.)
Relevant Case Law (cont.)
Posey v. Lake Pend Oreille Sch. Distr. No. 84
546 F.3d 1121 (9th Cir. 2008)
(Inquiry into status of protected speech is mixed question of fact and law)
Biggs v. Town of Gilbert
No. CV11-330-PHX-JAT, 2012 WL 94566 (D. Ariz. Jan. 12, 2012)
(First Amendment protection and matters of “legitimate” public concern)
Karl v. City of Mountlake Terrace
678 F.3d 1062 (9th Cir. 2012)
(First Amendment protection and subpoenaed deposition testimony)
Current Standards in Public
Employee Speech Matters (cont.)
Relevant Case Law (cont.)
Ellins v. City of Sierra Madre
710 F.3d 1049 (9th Cir. 2013)
(Police officer’s leading a no-confidence vote and issuing press
releases; distinctions between job as police officer and role as a union
representative)
Coomes v. Edmonds Sch. Dist. No. 15
816 F.3d 1255 (9th Cir. 2016)
(Teacher’s communication with both chain of command and parents
and speaking as a public employee vs. speaking as a private citizen)
Current Standards in Public
Employee Speech Matters (cont.)
Relevant Case Law (cont.)
Dahlia v. Rodriguez
735 F.3d 1060 (9th Cir. 2013) (en banc)
Dahlia Distinctions:
 Police detective’s report alleging police abuse to lieutenant
overseeing investigation into abuse;
 Police detective’s communication with Internal Affairs officers;
and
 Police detective’s communication with police union
Current Standards in Public
Employee Speech Matters (cont.)
Relevant Case Law (cont.)
Lane v. Franks
___ U.S. ___, 134 S.Ct. 2369 (2014)
(State community college employee’s truthful sworn testimony under
oath in a criminal trial and issue of First Amendment protection)
Lessons from Lane:
 Sworn testimony as “quintessential example” of citizen speech
 Issue of qualified immunity
 Takeaways and unanswered questions
Current Standards in Public
Employee Speech Matters (cont.)
Relevant Case Law (cont.)
Heffernan v. City of Patterson, N.J.
___ U.S. ___, 136 S.Ct. 1412 (2016)
(First Amendment protection for police officers and their perceived
politics and political activity; mistakes about a police officer’s
involvement in a mayoral campaign did not bar lawsuit alleging First
Amendment retaliation related to his demotion from detective to patrol
officer)
Key Takeaways
• Is the employee speaking on a matter of public
concern?
– If not, then free speech protections do not apply.
• Is the person speaking as a private citizen or as
a public employee?
– If speaking as public employee then free speech
protections do not apply.
Key Takeaways (cont.)
• Do the interests of the government in promoting
efficient operations outweigh the interests of the
employee in commenting on matters of public
concern?
– If yes, then the employee may be disciplined for
the speech.
(Not So) Common Sense Tips
• (Not so) Practical and Common Sense Tips
 Do not be friends with co-workers on social
networking sites.
 Do not post about politics.
 Do not post without checking your privacy settings
(e.g., your audience, third party apps, etc.)
(Not So) Common Sense Tips
(cont.)
• There is a thin line between…
 “I should do a status update about that.”
…and
 “I should speak to my therapist about that.”
• And when all else fails…
 Stick to sports, Star Trek, food, and quotes from your
recently-retired New York Jewish parents who have
relocated to South Florida.
Recommendations for Social Media
Policies of Public Employers
• Constitutional Protections
– Explicit language that nothing (in the policy) should
be construed as denying employees their civil or
political liberties under the U.S. and Arizona
Constitutions
– Explicit language that nothing (in the policy) should
be construed with interfering with the rights of
employees and employee organizations under local
laws or ordinances
Recommendations for Social Media
Policies of Public Employers (cont.)
• Defining Roles and Responsibilities
– Employee understanding and compliance
– Obligations for each department/division of the
governmental entity
– Additional considerations for Human Resources
and Public Information Departments
Recommendations for Social Media
Policies of Public Employers (cont.)
• Personal Social Media Presence and Privacy
Issues
– Employees may express themselves as private
citizens on social media sites
– Privacy settings and considerations
 No such thing as a “private” social media site
 Published content may be transmitted, stored, or
forwarded by external entities or even authorized
individuals (social media “friends”)
Recommendations for Social Media
Policies of Public Employers (cont.)
• Personal Social Media Presence and Privacy
Issues (cont.)
– Negative impact at work or disruption of operations
– Potential use in HR/EEO investigations (and
Notices of Inquiry/Rights)
– Importance of permissive language
Recommendations for Social Media
Policies of Public Employers (cont.)
• Speaking on Behalf of the Governmental Entity
– Only authorized individuals may speak on behalf of the
public entity
– Employees should not mislead the public to believe the
employee is an official spokesperson if not
authorized to do so
– Identification of public entity employment
 Social networking vs. Professional networking
 Public perception
 Importance of permissive language
– Sharing and reposting links and information from the
public entity’s website and social media sites
Recommendations for Social Media
Policies of Public Employers (cont.)
• Government Business, Time, and Resources
– Engaged in City/County/State business while at
work
– Engaged in City/County/State business while on
City/County/State time
– Use of government email addresses (and
prohibition)
Recommendations for Social Media
Policies of Public Employers (cont.)
• Prohibitions for Confidential or Proprietary
Information
– Use of government logos and corporate symbols
– Personal identifying information about individuals
– Restricted government information
– Information protected by data privacy laws
– Nonpublic images of government property
Recommendations for Social Media
Policies of Public Employers (cont.)
• Public Records and Records Retention
– Definition of a “record” under A.R.S. § 41-151.18
– Unique information on social media sites vs.
Creating original content offline
– Compliance with records retention schedules
– Managing records and handling public records
requests
– Compliance with “Terms of Use” of social media
platforms
Recommendations for Social Media
Policies of Public Employers (cont.)
• Separate Policy Statements and Requirements
for Public Entity Spokespersons
– Define expectations for those authorized to speak on
behalf of the public entity
– Compliance with all policies, including records retention
policies and schedules
– Following the governmental entity’s standards
– Preserving the public trust
– Respecting intellectual property
Recommendations for Social Media
Policies of Public Employers (cont.)
• Decorum and Electioneering
– Permitted activities (including activities specific to
the individual City/County/State elections)
– Prohibited activities (including activities specific to
the individual City/County/State elections)
– Reference to Charter/Code/Ordinance/other
policies and regulations regarding political
activity
• Compliance
– Violation of the policy may result in disciplinary
action, up to and including termination of
employment
Questions?
Presentation Name
Month 2016