Social Media: What HR Can and Cannot Control

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2 Social Media: What HR Can and Cannot Control APPA Academy Business & Financial Conference September 19, 2017, Nashville, Tennessee Chris Hammon, Esquire Shareholder Ogletree Deakins (305) Emily Garner Public Information Specialist Greenville Utilities Commission (252)

3 Overview Steps to Revising or Developing a Social Media Policy What Can Public Employer Control and Not Control Over: o It s own social media communications o Employee s outside social media communications Legal Rules Strategies 3

4 GUC s Policy Team Public Information Officer Public Information Specialist HR Director IT Director 4

5 First Steps Research Other Public Utility Policies Establish Policy Goals What s In Our Existing Policies? 5

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7 Obtained Guidance from: GUC s Commission Lawyer NC School of Government HR Social Media Webinars/Seminars NC Public Records & Retention Laws 7

8 Next Steps Revise Our Policy Goals Develop Action Plan 8

9 Our Goals Create a well-informed social media policy that clearly states its purpose and guidelines. 9

10 Our Goals Encourage GUC employees to be aware of posts that could be perceived as negative or unacceptable on their personal social media sites regarding GUC. 10

11 Our Goals Make employees aware that GUC s PIO staff administrates social media sites, and that employees are not authorized to post information or answer questions on behalf of GUC, without PIO or CEO approval. 11

12 Our Goals Make employees aware that any additional GUC social media sites must be approved by PIO and CEO. 12

13 Action Plan Task Assignments Deadlines Included in Packet 13

14 Next Steps What can we legally control? Site admins What employees can/cannot post on GUC sites What can we not legally control? Chris to discuss 14

15 Next Steps Two Documents Social Media Policy Employee Guidelines for Social Media 15

16 Next Steps Communications Plan How to roll out the policy and guidelines without appearing as big brother Give employees a sense of ownership and pride in our social sites 16

17 Show & Tell 17

18 Show & Tell The following guidelines offer recommendations to GUC employees on how to balance their personal uses of social media sites, while protecting themselves. 18

19 Show & Tell Employee Newsletter Article 19

20 Show & Tell Taking this extra step into social media is a good reminder that as public utility employees, we represent GUC 24/7. -Tony Cannon 20

21 Show & Tell 21

22 Overview What Can Public Employer Control and Not Control over: o It s own social media communication o Employee s outside social media communication Legal Rules Strategies 22

23 Internet + PEDs Social Media Technology is new Principles are familiar What is new? Velocity Breadth profile 23

24 The Law The primary source of law that applies when public employers limit their employees speech on social media First Amendment to the U.S. Constitution 24

25 First Amendment: Applies to state actors (includes public agencies) Restricts public employers authority to curtail free expression by its employees 25

26 Speech Protected by the First Amendment A public employee s statement on social media is protected by the First Amendment if: o The employee is posting as a private citizen that is, not pursuant to their work duties. AND o The statement is about a matter of public concern. AND o The statement does not contain knowing or reckless falsehoods, and does not prevent the government from efficient operation. 26

27 Speech Protected by the First Amendment Example (prior to social media): A local newspaper published a letter to the editor from a public school teacher, writing as a private citizen. The teacher s letter criticized the school board s use of public funds. In the aftermath, the letter did not substantially interfere with the teacher s ability to perform his job, or with the school s ability to efficiently serve its students. U.S. Supreme Court decided that the teacher s letter was speech protected by the First Amendment. Pickering v. Bd. of Education, 391 U.S. 563 (1968) 27

28 Private Citizen or Government Spokesperson? If the social media post is made in the course of the employee s ordinary job duties, the post is not speech with First Amendment protection. If the social media post by the employee is outside the scope of the employee s ordinary job duties, the employee is speaking as a private citizen. Garcetti v. Ceballos, 126 S.Ct (2006) 28

29 Public Concern Matters of Public Concern fall into two broad categories: 1) Community Concern: relating to any matter of political, social, or other concern to the community 2) News Interest: a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public Snyder v. Phelps, 131 S. Ct (2011) 29

30 Public Concern Look at each individual statement on its own, and evaluate the: o content, o form, and o context to determine if it is of public concern. Connick v. Myers, 461 U.S. 138 (1983) 30

31 Statements Not Protected by the First Amendment Not protected if not considered to be a matter of public concern : If an employee s statement on social media is a personal gripe or opinion unrelated to the public welfare, it is likely not protected speech. o Example: internal office policies, such as intra-office transfer rules 31

32 Employer s Interest in Employees Social Media Activities What happens when: o a public employee o acting as a private citizen o posts something to social media that is at least partially of public concern BUT o the post causes or will cause disruption in the workplace? 32

33 Balancing Test An individual employee has an interest in free expression (not including knowing or reckless falsehoods) BUT The government has an interest in maintaining an efficient workplace SO Not all speech by public employees is protected by the First Amendment Pickering v. Bd. of Education 33

34 Balancing Test If a public employee makes a controversial statement on social media about a matter of public concern, is it protected speech? Courts apply a balancing test to find whether the statement is protected by the First Amendment. Employee s interest in free expression Employer s interest in efficiently providing services to the public 34

35 Applying the Balancing Test Susan Graziosi was a police officer. She posted several statements criticizing her chief on her own Facebook page and on the public Facebook page of the city mayor. Graziosi acted as a private citizen: o She was off duty o At home, on her private computer o Using her personal Facebook account o Graziosi s act of publishing Facebook posts was not within the scope of her duties as an employee 35

36 Applying the Balancing Test Some of Graziosi s Facebook posts to her own page and to the mayor s page suggested they were matters of public concern because: o The content initially suggested Graziosi was unhappy with some of her supervising officer s choices regarding the budget, requiring some officers to take their own cars to the funeral of an officer killed on duty to save money on gas. o Some of the posts on the mayor s page were accessible by the community and public at large 36

37 Applying the Balancing Test But the overall content of the statements devolved into simple ranting: o I would be embarrassed as a chief to make that statement. o If you don t want to lead, can you just get the hell out of the way. The context showed that Graziosi s issue was inter-personal and not of public concern: o Graziosi had recently been suspended for an unrelated issue. o She admitted she made the statements because she was angry about the chief s decision about the funeral and what she perceived to be his lack of leadership 37

38 Applying the Balancing Test What is the government s interest in efficiently providing services to the public? Courts consider whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary[.] Rankin v. McPherson, 483 U.S. 378 (1987) Courts also consider whether the employer reasonably predicts that the social media post will cause future disruption in the workplace or cause a mini-insurrection. Connick v. Myers, 461 U.S. 138 (1977) 38

39 Applying the Balancing Test Effects of the social media posts on the government s interests: Graziosi suggested she would be more opinionated in the future in one of her posts impaired discipline by her superior The posts caused a buzz in the police department among several patrolmen impaired harmony, personal loyalty and confidence among co-workers One officer posted a response to one of Graziosi s posts, expressing support to her opinion, and then recanted that support, stating, I do NOT support those who don t support MY department. impaired harmony, personal loyalty and confidence among co-workers The chief noticed a change in the demeanor of two of his officers towards him impaired discipline by the chief, impaired harmony, personal loyalty and confidence between the officers and the chief 39

40 Outcome of the Balancing Test The Court decided that the government s substantial interests in maintaining discipline and close working relationships and preventing insubordination within the department outweigh Graziosi s minimal interest in speaking on a matter of public concern. Graziosi v. City of Greenville, 775 F.3d 731 (5th Cir. 2015): 40

41 Outcome of the Balancing Test The Court decided that the government s substantial interests in maintaining discipline and close working relationships and preventing insubordination within the department outweigh Graziosi s minimal interest in speaking on a matter of public concern. Graziosi v. City of Greenville, 775 F.3d 731 (5th Cir. 2015): 41

42 Strategies When speaking for agency, you can control o speaking as official duties: no protection o Don t speak for agency unless specifically authorized Can control speech violation of law o knowing or reckless false o defamatory o Invasion of privacy Purely individual/private grievances not protected Discriminatory conduct (including harassment) can be prohibited because public interest in delivery of services almost always outweighs private interest 42

43 Danger: Strategies o Overbroad policies o Knee-jerk reactions o Overreaching decisions o Agency management trying to make an example Ask: why do we need to take action here o What are we really trying to prevent? Let the facts guide you 43

44 Social Media: What HR Can and Cannot Control APPA Academy Business & Financial Conference September 19, 2017, Nashville, Tennessee Chris Hammon, Esquire Shareholder Ogletree Deakins (305) Emily Garner Public Information Specialist Greenville Utilities Commission (252)