Social Media in the Public Workplace

Transcription

1 League of California Cities Annual Conference September 2012 Social Media in the Public Workplace How Facebook and Other Social Tools Are Affecting Public Employment Presented by: Jeff Sloan - Partner, Renne Sloan Holtzman Sakai LLP Christina L. Checel - Senior Deputy City Attorney, City of Long Beach Statistics 900 million Facebook users Over half the US population has a facebook account 50% log in via a mobile device Every 20 minutes on Facebook 1 million links are shared 2 million friend requests are made 3 million messages are sent 1

2 Statistics Twitter boasts over 500 million users The top five most followed twitter users Lady Gaga 28,308,9582 Justin Bieber 26,527,0713 Katy Perry 24,984,0164 Rihanna 24,80,2695 Britney Spears 19,431,902 And in sixth place In Sixth Place Barack Obama 18,465,548 Arg Britney is still beating me 2

3 Other prominent sites You Tube Google + Linkedin Myspace Pintrest Digg Friendfeed Flickr Picassa Survey results 75 agencies responded to the Survey 51 agencies (68%) have a social media policy 43 of the 51 agencies (88%) do not regulate off duty use of social media None of the policies has been challenged 3

4 Agenda Potential legal issues Free speech Defamation Privacy Labor relations Discrimination & harassment And more! Hypothetical social media quagmires Considerations when updating policies Speech 4

5 Protected Speech Is the speech protected by the First Amendment: Did the employee speak as a citizen or as a public employee? Did the employee speak on a matter of public concern? Balancing test: Can the employer justify treating the employee differently from a member of the public i.e. do the government s interests in efficiency outweigh the employee and the public s interests in the speech?? Protected Speech Causation: Was the speech a substantial or motivating factor in adverse action against the employee? Would the employer have taken the adverse action even absent the protected speech? I m fired? 5

6 Matters of Public Concern [P]ublic concern is something that is a subject of legitimate news interest; a subject of general interest and of value and concern to the public at the time of publication. (City of San Diego v. Roe (2004) 543 U.S. 77, ) Courts look to the content, form, and context of speech. Ranck v. Rundle (S.D. Fla. 2009) 2009 WL Ranck, an Assistant District Attorney, determined that a police shooting was not justified or clean. Ranck was removed from the case and he ed his supervisors a memo protesting the decision, claiming that it would embolden police officers to disregard ADAs. Three years later, Ranck made a public records request for his memo and posted it to a public forum used by criminal law practitioners. Ranck was suspended without pay. 6

7 Was Ranck s posting protected? Yes. Ranck was speaking as a citizen even though the memo was written pursuant to his official duties. Unclear whether he needed to go through the exercise of a PRA request. The subject was of public concern. The employer s interests in confidentiality and a positive relationship with the police department did not outweigh Ranck s and the public s interest in the speech. The speech impeded the employer s operations. A prosecutor s relationship with the police department was not a legitimate interest. Richerson v. Beckon (9th Cir. 2009) 2009 WL Richerson, a teacher, maintained a public blog in which she was highly critical of her employer, union representatives, and her coworkers. In reference to a coworker whom she had interviewed for her former position: This guy was my third choice... And a reluctant one at that.... He comes across as a smug know-it-all creep.... And he s white. And male.... Mighty White Boy looks like he s going to crash and burn. After the blog came to light, several employees complained, including a teacher to whom Richerson was assigned as an instructional coach. The district then involuntarily transferred Richerson, citing the effect of the blog in undermining her ability to act as a mentor. 7

8 Did the district violate Richerson s First Amendment rights? No. Even assuming the speech touched on matters of public concern, the evidence showed that the speech: Disrupted co-worker relations; Eroded relationships requiring personal loyalty and confidentiality; Interfered with Richerson s ability to perform her duties. The district s interests outweighed Richerson s and the public s interest in the speech. 8

9 9

10 10

11 11

12 Can liking this get you fired? Defamation The basic elements of a defamation claim are: 1. Negligent or intentional; 2. publication of; 3. a statement of fact; 4. that is false; 5. unprivileged; 6. has a natural tendency to injure or which causes special damage. Actual malice required where plaintiffs are public figures or public officials. E.g. police officer, child welfare worker, city attorney, deputy public defender. 12

13 Defenses available to public employees Privileges Proper discharge of an official duty. In any legislative proceeding, judicial proceeding, or other official proceeding authorized by law. Fair and true report to a public journal of anything said in the course of a public official proceeding. Fair and true report of a lawfully convened, open public meeting. Qualified privilege. Discretionary act immunity Gov. Code He said what? 13

14 Privacy Privacy State and federal constitutional right Unreasonable search Unjustified violation of reasonable expectation of privacy Common law claims Intruding into a person s private matters Publically disclosing private facts Publically placing a person in false light Misappropriation of a person s likeness 14

15 City of Ontario v. Quon (2010) 130 S. Ct City provided SWAT officer with a pager for official use. Informed officers that text messages were subject to review. Supervisor also said he did not intend to read texts. Employees were responsible for paying for any over usage exceeding the City s plan. After several months of overages, the City began an investigation to see if the overage was for work-related messages. Redacted content of messages sent after working hours. On an average day, Quon sent 28 messages; only 3 were work related. Sexually explicit texts to both his wife and mistress. Quon s argument Employees have a reasonable expectation of privacy in the content of the messages sent, even on an employer provided device because the employees are making personal payments for the overages. Hey Baby 15

16 City s argument The City issued the pagers. The City has a policy indicating that employees have no reasonable expectation of privacy in City issued phones, computers, or pagers. Supreme Court s holding The search did not violate the Fourth Amendment. Did not decide which test applies to work-related searches: Assume that employees have a reasonable expectation of privacy at work and simply ask whether the search would be normal and reasonable in the private sector. First ask whether the operational realities of the workplace support a reasonable expectation of privacy, then ask whether the search was justified at its inception and narrow in scope. Even assuming Quon had a reasonable expectation, the search was justified and tailored to its purpose they redacted the off-duty content. It also would be normal and reasonable in the private sector. 16

17 Posting on an open journal Moreno v. Hanford Sentinel (2009) 172 Cal.App.4th 1125 High school principal shared a student s MySpace posting with the local newspaper who published the posting under the student s name. The posting, An Ode to Coalinga, began with the older I get, the more I realize how much I despise Coalinga and continued to make negative comments about the City and its inhabitants. The student used only her first name and deleted the post only a few days after it was first on the site. The student and family were subjected to threats and were forced to move out of the city. The student sued for invasion of privacy and emotional distress. Did the student have a viable claim for invasion of privacy? No. The court held there was no invasion of privacy based on public disclosure of private facts because the student published this on her on-line journal and in so doing made the information available to anyone with internet access. 17

18 Posting to friends on Facebook Juror No. 1 v. Superior Court (2012) 206 Cal. App. 4th 854 A juror posted information about his jury service to his Facebook friends during the time he was in trial. His comments included remarks such as his day being boring because he was listening to information about phone records. The Court ordered the juror to authorize the release of his postings to the Court. He refused and sued based on violation of the Stored Communications Act and his constitutional right to privacy. Did the juror have a constitutional right to privacy in his posts to his friends? Yes. The court found his communication was made to a closed group of friends which the court analogized to a private bulletin board. The court distinguished this case from the Moreno case because that Moreno posting was published on an online journal that was accessible to anyone with internet access. I m bored 18

19 Federal Stored Communications Act Prohibits unauthorized and intentional access of stored electronic communications e.g. or a private website. Issue is usually whether the access was authorized by the provider or a user of the service/website. Blowing off steam Pietrylo v. Hillstone Restaurant Group (D.N.J. Sept. 25, 2009) 2009 WL Employees set up a private myspace group to vent about any BS we deal with [at] work without any outside eyes spying in on us.... Let the shit talking begin. Managers at the restaurant allegedly strong-armed an employee into providing his address and password. The employee who created the group and some participants were fired. 19

20 Did the employer violate the SCA? Yes. Court found that the employer did not have authorization, although they did have login information of a user. A case in the Ninth Circuit suggests that there may be different results in the absence of coercion? Konop v. Hawaiian Airlines, Inc. (9th Cir. 2002) 302 F.3d 868, 879 An employee set up a private website for employees to voice complaints about Hawaiian Airlines. A manager asked one of the employees to provide his login information. The 9th Circuit remanded to determine whether the employee who provided the login information had ever used the website, since the SCA allows authorization only by users Implies that there was no coercion. 20

21 New CA legislation AB 1844 was unanimously approved by the State Senate. Would prohibit employers from requiring job applicants or current employees from asking for employees social media user names and passwords. Federal Fair Credit Reporting Act 21

22 FCRA Overview Imposes notice and disclosure requirements on employers using consumer reports from third parties that assemble such information for a fee. Consumer reports are defined broadly to include reports on character, general reputation, personal characteristics, or mode of living. Online aggregators may fall within the definition of a consumer reporting agency. Labor Relations 22

23 Union Organizing A new way to reach members and the public. Concerted activity. Campaigns to rally public support. Can restrict use of employer resources as long as the policy is enforced in a non-discriminatory fashion. Make sure computer use policies prohibiting disclosure do not violate an employee s right to engage in concerted activity/discuss the terms and conditions of employment with others. 23

24 NLRB Report on Social Media Cases The NLRB found several employer policies on off-duty use of social media overbroad. They potentially prohibited employees from discussing the terms and conditions of employment with others. Which, if any, of these is overbroad? If you plan to mention [employer] or your employment... Don t release confidential guest, team member or company information. If you engage in a discussion related to [Employer], in addition to disclosing that you work for [Employer] and that your views are personal, you must be sure that your posts are completely accurate and not misleading and that they do not reveal non-public information. Do not post information on: the safety performance of [Employer products]; [Employer] Secret, Confidential or Attorney-Client Privileged information. 24

25 Discrimination Discrimination in hiring Using social media sites to vet applicants? May come across information about protected characteristics, potentially giving the appearance of discriminatory motive. Is it worth it? Selective use of social media could give rise to a claim for discrimination. 25

26 Electronic harassment Texts Blogs Postings on social networking sites Espinoza v. County of Orange, Cal. App. Ct WL Jury awarded juvenile corrections officer $1.6 million for his claim that he was harassed at work based on the physical deformity of his hand. He complained to his employer that there were anonymous remarks made on a blog which referred to him as the claw, rat claw and the one handed commander. He informed his employer that these comments were spilling over to the workplace. He was transferred following his complaint. 26

27 An appeal ensues The County denied liability based on the fact that the comments are anonymously posted on a blog. It sent two s to all employees informing them that the blog postings violate the County s policy and instructs employees to discontinue posting. It investigated, but did not interview suspected bloggers. The Court of Appeal decides the case It affirmed the trial court s ruling. It found the County had an obligation to prevent harassment if it is aware of the harassment and failed to take remedial measures. What more could the employer have done? 27

28 Blakey v. Continental Airlines (N.J. 2000) 751 A.2d 538 Blakey, a female pilot, was subjected to sexual harassment by other pilots e.g. pornography in her plane s cockpit and other work areas. Several pilots posted harassing and defamatory comments on an online bulletin board for crew members created and maintained by a third party for Continental. N.J. Supreme Court holding Although the electronic bulletin board may not have a physical location within a terminal, hangar or aircraft, it may nonetheless have been so closely related to the workplace environment and beneficial to Continental that a continuation of harassment on the forum should be regarded as part of the workplace. Key considerations: Employer had constructive knowledge Employer benefitted from the bulletin board Continuation of in person harassment 28

29 Additional Considerations What about lawful off duty misconduct? There must be a rational relationship between the off duty misconduct and the employment. e.g. an employee posts pictures of himself while on vacation and states, gotta burn my sick leave before I lose it! The misconduct must cause discredit to the employer. The conduct harms public service. 29

30 NYPD s racist Facebook page An anonymous blogger An anonymous a public blog disparaging various city officials. One post attacked the City Manager s integrity and suggested that he had mismanaged city funds. One post alleged that the Police Chief was an autocratic and controlling micro-manager. Based on the detailed content and timing of the posts, Alice, the Personnel Director, suspects that the blogger is a city employee who is posting during on-duty hours. If Alice discovers that the blogger is Bob, a disgruntled police officer, may the city instruct Bob to stop blogging or subject him to discipline? 30

31 On-duty and off-duty: boundaries of the workplace? Hank is friends on Facebook with several of his coworkers. After Hank uploads some photos from a weekend out at the beach, one of his coworkers, George, posts sexually suggestive comments on the photos. Hank responds to the comments on Facebook indicating that he believes they are inappropriate and asks the coworker to stop. Hank s supervisor, Alice, is also Facebook friends with Hank and sees this exchange in her Facebook feed. Hank and George work different shifts and do not interact with each other in person at work. Background checks Charlie, the IT Director at the city, wants to use internet sources to supplement his usual background checks on applicants for an entry-level IT analyst position. Charlie also knows that David, a current employee, is friends on Facebook with an applicant named Eve. Charlie asks David to sign into his Facebook account so that Charlie may view Eve s profile. David agrees to do so. 31

32 Updating employment policies Official social media accounts. No personal opinions. Limit to news and events. In many respects, just a new context for existing employment policies. Regulating personal use of social media Social media policies typically do not speak to employees personal use. Policies must be clear in what kind of conduct they regulate. The nature of social media makes it hard to determine what is on-duty or off-duty. Regulation must not limit First Amendment or labor organizing rights. A signed acknowledgment of receipt can reduce any expectation of privacy. Uniform enforcement. Progressive Discipline. 32

33 Jeff Sloan Partner Renne Sloan Holtzman Sakai (415) Christina L. Checel Senior Deputy City Attorney City of Long Beach (562)