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1 Representing Management Exclusively in Workplace Law and Related Litigation jackson lewis Attorneys at Law Jackson Lewis LLP 199 Fremont Street 10th Floor San Francisco, CA Tel Fax Off Duty Conduct When is it Misconduct or a Conflict? By Kathleen Maylin Jackson Lewis LLP League of California Cities City Attorneys Department 2010 Annual Conference

2 City Attorneys Department 2010 Annual Conference Page 1 I. Introduction Because of complexities specific to the public sector work environment, such as the public s interest, media attention, collective bargaining relationships, and political interests, public employers often must respond to the off-duty conduct of employees when that conduct intersects with the workplace in some adverse manner. The employer then must make a determination of what can and should be done, if anything, in each instance. The good news for the public employer is that generally it is easier for a public agency to dismiss or discipline an employee for off-duty conduct than it is in the private sector. Arbitrators tend to protect the government employer s reputation and mission, citing the need to maintain public trust in government agencies. Nonetheless, public employers in California must proceed with caution before taking action against an employee because of off-duty conduct. Regulating and responding to outside or non-work activities may result in an infringement on the individual s constitutionally protected speech, privacy rights, lawful off-duty activities, EEO protections, and other protected rights. II. Constitutional Protections A. Free speech While freedom of speech under the First Amendment is enjoyed by public employees, that freedom is not absolute. Pickering v. Bd. of Ed. (1968) 391 U.S. 563, 574. Courts have recognized that the government has a vital interest in maintaining governmental effectiveness and efficiency. Branti v. Finkel (1980) 445 U.S. 507, 517. As a result, the employee s interest in free speech may at times have to yield. Id. 1. The Pickering Balancing Test In Pickering, the Court established a balancing test for analyzing public employees freedom of speech claims. The Court balanced the interest a teacher had in commenting on matters of public concern against the interest the state had in efficiently providing public services. Under Pickering, a public employee s speech may not be protected in two situations. First, the speech will not be protected if it does not touch on a matter of public concern. Second, even if the speech is about a matter of public concern, the speech will not be protected if the government s interest in efficiency outweighs the employee s interest. Pickering v. Bd. of Ed., supra, 391 U.S. at Speech Concerning a Personal Matter is Not Protected To obtain First Amendment protection, the public employee s speech must be about a matter of public, not private, concern. In Pickering, a school board fired a teacher after he criticized how the school board handled its finances. The Court found it was a matter of public concern because the public voted on whether to provide funding to the District, and because open debate on the topic was necessary in order to have a well-informed electorate. Id. at In Connick v. Myers (1983) 461 U.S. 138, the Court clarified Pickering by holding that when an employee speaks upon matters only of personal interest, a personnel decision based on that

3 City Attorneys Department 2010 Annual Conference Page 2 speech does not violate the First Amendment. Id. at 147. The Court distinguished that general public interest is not the same as the heightened standard of public concern. In Connick, a disgruntled assistant district attorney distributed a questionnaire at work that asked about office morale, and she later was terminated for insubordination and other reasons. Only one of the questions in the questionnaire was of public concern, which asked whether other employees felt pressure to support political campaigns. Although the Court found this one question raised a matter of public concern because it is unconstitutional for employers to force employees to adopt certain beliefs, the rest of the questionnaire was not of public concern because it only pertained to the employee s personal problems with management. Id. at 148. As a result, the employee s discharge did not offend the limited First Amendment interest raised in her questionnaire. Id. at The Government s Interest in Efficiency May Outweigh the Employee s Interest in Free Speech Even if a public employee s speech constitutes a matter of public concern, it may not be protected. The second part of the Pickering test evaluates the government s interest in disciplining the public employee. In Connick, the Court applied that test and held that the state s burden of justifying the termination of a public employee varies depending on the nature of the employee s expression. Connick v. Myers, supra, 461 U.S. at 150. In Fazio v. City & County of San Francisco (9 th Cir. 1997) 125 F.3d 128, the Ninth Circuit set criteria by which the government s interest in efficiency is weighed against the employee s interest in free speech. Specifically, whether the employee s speech: 1) impairs discipline or control by superiors; 2) disrupts co-worker relations; 3) erodes a close working relationship premised on personal loyalty and confidentiality; 4) interferes with the speaker s performance of her duties; and 5) obstructs the routine operations of the office. Fazio v. City & County of San Francisco, supra, 125 F.3d at 1331, citing Hyland v. Wonder (9 th Cir. 1992) 972 F.2d 1129, The employer s burden of proving these factors will vary depending on the nature of the employee s speech. The less the speech involves a matter of public concern, the less the government has to show in order to justify the termination. Connick v. Meyers, supra, 461 U.S. at 152. Because the employee s speech in Pickering constituted matters of public concern, the employer s burden was higher. The Court found that the school board did not meet its burden because the teacher s relationship with the school board did not require the teacher s loyalty, and the teacher s statements did not disrupt the working environment. Pickering v. Bd. of Ed., supra, 391 U.S. at In Connick, the Court held that when an employee s complaint about an office policy arises out of a dispute concerning the application of the policy to the employee, the employer s burden is lower. Connick v. Myers, supra, 461 U.S. at 152. The Court found that the employee s speech adequately disrupted the office and impeded her ability to fulfill her job responsibilities. Id. at 151. The Court noted that the government must retain significant discretion to make management and personnel decisions. That discretion includes the ability to remove insubordinate employees because retaining problematic employees can hamper the efficiency and effectiveness of a public agency. Id.

4 City Attorneys Department 2010 Annual Conference Page 3 4. Speech Regarding Official Duties is not Protected The U.S. Supreme Court further clarified in Garcetti v. Ceballos (2006) 126 S.Ct that courts will only engage in the Pickering balancing of public and private interests when the government moves to penalize speech that public employees utter as citizens. When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. In Garcetti, a deputy district attorney alleged he was subjected to adverse employment actions in retaliation for engaging in protected speech (for writing a disposition memorandum in which he recommended dismissal of a case on the basis of purported governmental misconduct). Since he was not speaking as a citizen when he wrote his memo, the speech was not protected by the First Amendment. 5. Recent Cases Upholding Public Employer Terminations for Inappropriate Speech or Conduct The Ninth Circuit recently applied Connick, Pickering, and Garcetti in a termination case, reinforcing that a public employer may restrict speech as necessary for the employer to operate efficiently. In Richerson v. Beckon (9 th Cir., June 16, 2009, No ) [nonpub. opn.], a public school teacher maintained a publicly-available blog which, according to the Court, contained several highly personal and vituperative comments about her employer, union representatives, and fellow teachers. The following is one such blog entry about her replacement: Save us White Boy! I met with the new me today: the person who will take my summer work and make it a full-time year-round position. I was on the interview committee for this job and this guy was my third choice... and a reluctant one at that. I truly hope that I have to eat my words about this guy... But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him... He comes across as a smug know-it-all creep. And that s probably the nicest way I can describe him... He has a reputation for crapping on secretaries and not being able to finish tasks on his own... And he s white. And male. I know he can t help that, but I think the District would have done well to recruit someone who has other connections to the community.... Mighty White Boy looks like he s going to crash and burn. Unsurprisingly, the blog spurred complaints and disruption within the district. Because of the blog comments, the district removed plaintiff from her position as an instructional coach and demoted her to a lower position in the district. Plaintiff sued, arguing that her transfer violated her speech rights. The Ninth Circuit affirmed summary judgment in favor of the district. The Court found that Plaintiff spoke as a private citizen in her blog, and thus the Pickering balancing test did not apply. Even if the Pickering balancing test was applicable, since some of her writings touched on matters of public concern, the Court held that the district s

5 City Attorneys Department 2010 Annual Conference Page 4 interests in promoting harmony among coworkers, fostering close working relationships where loyalty and confidence are necessary, and managing the resulting interference with Plaintiff s job duties outweighed Plaintiff s speech rights. Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog. Richerson v. Beckon, supra. In Snyder v. Millersville Univ. (E.D. Pa., December 3, 2008, No ) [nonpub. opn.], the court held that a university did not violate a student teacher s free speech rights by terminating her assignment due, at least in part, to unprofessional content on her MySpace page which included a photo of the student teacher wearing a pirate hat and holding a plastic cup with a sign that read drunken pirate. In Spanierman v. Hughes (D. Conn. 2008) 576 F.Supp.2d 292, the court held that school administrators did not violate a teacher s free speech rights by refusing to renew his contract due to content on his MySpace page which he shared with students, because the teacher s online exchanges with students showed an unprofessional rapport with students (including commenting on whether he was getting any ). In City of San Diego v. Roe (2004) 543 U.S. 77, the court held that terminating a police officer who participated in and sold sex videos on the internet did not violate the First Amendment since the employee took deliberate steps to link the videos to police work, the speech did not implicate a matter of public concern, and the conduct was widely broadcast. In Locurto, Walters, and Steiner v. Giuliani (2 nd Cir. 2006) 447 F.3d 159, the court upheld the termination of firefighters and police officers who participated on a parade float that featured mocking stereotypes of African-Americans. The court found the action did not violate the First Amendment because defendants fired plaintiffs out of a reasonable concern for disruption, and their interest in maintaining a relationship of trust with the community members outweighed plaintiffs First Amendment interests. Id. at In Pappas v. Giuliani (2d Cir. N.Y. 2002) 290 F.3d 143, a New York court held that a police department did not violate a police officer s First Amendment speech rights when the department terminated the officer for anonymously sending bigoted racist anti-black and anti- Semitic leaflets while off duty. The court applied the Pickering balancing test, and held that an individual police officer s right to express his personal opinions was outweighed by the risk of harm to the police department. Id. at 147. The court clarified that government employers are allowed to sanction lower level employees when their statements have the capacity to harm the employer s performance of its mission, even though high-ranking policy-makers have a higher likelihood of harming the accomplishment of the entity s mission. Id. at 148. B. First Amendment Protection of Association The U.S. and California Constitutions afford privacy protections to matters relating to marriage, family, sexual relations, and associational relations. Despite these constitutional protections, courts have upheld employer discipline based on public employee associations in specific instances.

6 City Attorneys Department 2010 Annual Conference Page 5 1. Romance between co-workers Given the amount of time employees spend at work, it is inevitable that employees will develop personal and romantic relationships with one another. There are several reasons an employer has an interest in monitoring and/or regulating employees relationships in the workplace: Preventing conflict of interest issues Preventing claims of sexual harassment, hostile work environment and retaliation 1 Preventing claims of favoritism Maintaining employee morale and a sense of fairness One California court held that an employee does not have a reasonable expectation of privacy in having an intimate relationship with a subordinate where the employer has an express policy requiring that any supervisor who wanted to maintain an intimate relationship with a subordinate bring the matter to the attention of management to allow management the opportunity to take appropriate action to avoid the potential conflict of interest. Barbee v. Household Automotive Finance Corporation (2003) 113 Cal.App.4th 525, 533. In a partially unpublished decision, the Court in Sanchez v. County of San Bernardino (2009) 176 Cal.App.4th 516 reinforced the notion that personal employee relationships, which ordinarily would be private matters, become matters of public concern if they raise potential work-related conflicts of interest. In Sanchez, plaintiff was a high-level official who negotiated a new Memorandum of Understanding with one of the employee associations. She thereafter began an intimate relationship with the president of the association. The County s personnel rules included a conflict of interest policy stating, No official or employee... shall have a financial or other personal interest or association which is in conflict with the proper discharge of official duties or would tend to impair independence of judgment or action in the performance of official duties. Personal as distinguished from financial interest includes an interest arising from blood or marriage relationships or close business, personal, or political association. When Sanchez s supervisor learned of the relationship, he required her to resign. Because of the conflict of interest issue, the Court found that the relationship was not a private matter, but one of public concern. Arbitrators also have upheld rules restricting whom employees may marry because of special circumstances even in the private sector. For example, in Robertshaw Control Co., 55 LA 283, 70-2 ARB 8756 (Bloch, 1970), an arbitrator upheld a marital restriction on the basis that an employee might have divided loyalties as between the company and a relative. In National Tea Co., 69 LA 509 (Kelliher, 1977), an arbitrator upheld an employer s rule because of the possible resulting carryover of marital disharmony to the workplace. 1 Indeed, in one case, Miller v. Department of Corrections (2005) 36 Cal.4th 446, the court found that a plaintiff may establish a hostile work environment claim even in the absence of unwanted comments and advances. In that case, the warden s favoritism towards his many paramours conveyed a demeaning message towards other women (who were not benefitting from the favoritism) sufficient to support a hostile work environment claim.

7 City Attorneys Department 2010 Annual Conference Page 6 2. Personal relationships with third parties Public employers may face larger obstacles when trying to regulate employee relationships with third parties, even though public employee relationships with third parties can be just as detrimental to the government s reputation or efficiency. Last year, a town council fired its city manager after learning his wife was a porn star. Although the council argued they did not fire the city manager because of his wife s occupation, they explained the action was taken because the wife s profession brought an inaccurate image to the town. When you become a public figure you are held to a different level of scrutiny and ethics, said one councilmember. ( Fired for Marrying a Porn-Star The Aftermath. July 24, Although many public employers can empathize with the town council, disciplining an employee for an off-duty personal relationship may be considered discriminatory or a violation of an individual s right to privacy. In Via v. Taylor (D. Del. 2002) 224 F. Supp. 2d 753, the court deemed it unlawful for a public employer to terminate an employee of a state department of corrections as a result of her off-duty relationship with a paroled former inmate. The department of corrections had established a Code of Conduct that prohibited employees from having relationships or sexual contact with offenders, both incarcerated and non-incarcerated. The court applied a heightened standard of review to the Code and concluded that it was not substantially related to the department s goal of ensuring discipline and security within the prison, and thus application of the policy was unconstitutional on the bases of association and privacy. In Piscottano v. Murphy (2d Cir. 2007) 511 F.3d 247, the Second Circuit upheld a department of corrections discipline of former employees on the account of their membership in and association with the Outlaws Motorcycle Club, an organization for motorcycle enthusiasts which also was notorious for members that engaged in violent criminal activity. The Court applied the Pickering test and dismissed the former employees freedom of expression claims. The court held that the former employees involvement with the Outlaws had the potential in several ways to disrupt and reflect negatively on the department s operations, and the department s interest in maintaining the efficiency, security, and integrity of its operations outweighed the associational interests of those employees. Id. at 278. The Court also held that membership in an organization that was a large or non-selective group, such as the Outlaws, did not qualify as an intimate relationship that warranted associational protection under the Constitution. In Hamilton v. City of Mesa (Ariz. Ct. App. 1995) 916 P.2d 1136, an Arizona court upheld a personnel rule that an employee may be dismissed for conduct that will bring discredit or embarrassment to the City. A 17-year police officer was terminated when he was discovered to have engaged in off-duty sexual conduct with his subordinate s wife, because that conduct clearly had the effect of bringing discredit or embarrassment to the City in violation of the rule. Id. at Bottom line: beware when developing policies concerning the regulating of employee relationships in the workplace. Employers must consider statutory protections in addition to constitutional privacy and other concerns. For instance, California Labor Code sections 96(k)

8 City Attorneys Department 2010 Annual Conference Page 7 and 98.6 provide additional protections for lawful off-duty conduct. See below for further analysis of State law issues. In addition, the Fair Employment and Housing Act prohibits marital status discrimination. See Cal. Gov. Code 12940(a). C. Privacy The word privacy is not mentioned anywhere in the United States Constitution The U.S. Supreme Court nevertheless has declared on multiple occasions that the Bill of Rights impliedly forbids governmental intrusion on various zones of privacy. The most frequentlyinvoked federal constitutional provision in the privacy area is the Fourth Amendment which prohibits unreasonable searches and seizures by the government. Courts have interpreted this prohibition to grant public employees limited rights of privacy in their workplace. O Connor v. Ortega (1987) 480 U.S The California s Constitution contains an explicit right to privacy that operates against private and governmental agencies: All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. Cal. Const. article 1, section 1. Constitutional privacy interests are not absolute, however. They must be balanced against other important interests. Gilbert v. City of San Jose (2003) 114 Cal.App.4th 606, 613. Given the great variety of work environments in the public sector, the question of whether a search or seizure is reasonable depends on the specific context and turns on the employee s reasonable expectation of privacy. 1. Off-duty Sexting In City of Ontario v. Quon, the U.S. Supreme Court will determine whether, under the Fourth Amendment, the City s Police Department s employees should expect that personal text messages they send and receive on police pagers are private, where the Department s official no-privacy policy may conflict with its informal policy of allowing some personal use of pagers. The underlying suit was filed by Sgt. Jeff Quon, his wife, his girlfriend, and another police sergeant after one of Quon s supervisors audited his messages and found that many of them were sexually explicit and personal in nature. The Ninth Circuit sided with the police officer, ruling that Quon had a reasonable expectation of privacy regarding messages stored on the service provider s network, and that the government s search was unreasonable under the circumstances. The Court cited the Supreme Court decision in O'Connor v. Ortega (1987) 480 U.S. 706, 715, 717 (while searches and seizures of the private property of their employees... are subject to the restraints of the Fourth Amendment... the operational realities of the workplace... may make some employees' expectations of privacy unreasonable. ). The Court

9 City Attorneys Department 2010 Annual Conference Page 8 relied on its own decision in United States v. Forrester (9 th Cir. 2008) 512 F.3d 500 and analogized that text messages (and presumably s) are similar to letters or packages or telephone communications, for which there is no reasonable expectation of privacy as to the identity of the sender or recipient, or the external writings on an envelope, or the telephone numbers called to or from; however, in all cases, there was a reasonable expectation of privacy with regard to the subject matter of the communications. The Supreme Court s ruling in Quon will determine whether public employees have a reasonable expectation of privacy in this particular circumstance. However, public employees are already protected through workplace privacy rights arising from common law and other statutes. 2. Tracking employees through GPS Global Positioning Systems (GPS) are more and more common in vehicles and mobile phones. In 2009, the Boston Globe reported that GPS tracking devices installed on government-issued vehicles are helping communities around the country reduce waste and abuse, in part by catching employees shopping, working out at the gym, or otherwise loafing while on the clock. 2 In Islip, New York, [t]he use of a Global Positioning System has led to firings, stoking complaints from employees and unions that the devices are intrusive, Big Brother technology. But city officials say that monitoring employees movements has deterred abuses, saving the taxpayers money and lost productivity. Although this would be a matter of first impression by the courts, this type of monitoring is very risky for public employers. California Penal Code section prohibits persons or entities from using an electronic tracking device to determine the location or movement of a person unless the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle. In this context, electronic tracking device means any device attached to a vehicle or other movable thing that reveals its location or movement by the transmission of electronic signals. Cal. Penal Code 637.7(d). The section does not apply to the lawful use of an electronic tracking device by a law enforcement agency. Cal. Penal Code 637.7(c). Under the provision, GPS monitoring of employees is not lawful when the employee is using his or her own vehicle unless the employee consents. If the employee is using an employer-issued vehicle (i.e., the employer is the registered owner, lessor, or lessee), it appears that GPS monitoring may be permissible, subject to constitutional considerations, and provided that employees off-duty movements are not monitored (such as rest and meal periods and if the employee uses a take-home vehicle). 2 Frank Eltman, Associated Press, November 16, 2007, Islip, N.Y., The Boston Globe,

10 City Attorneys Department 2010 Annual Conference Page 9 III. California Labor Code Section 96(k) California law specifically protects an employee s legal off-duty activities. Labor Code section 96(k), which became law in 1999, provides that: The Labor Commissioner and his or her deputies and representatives authorized by him or her in writing shall, upon the filing of a claim therefor by an employee, or an employee representative authorized in writing by an employee, with the Labor Commissioner, take assignments of: (k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises. (Emphasis added.) Labor Code section 98.6, amended in 2001 to provides new actions and remedies for employees and applicants, and prohibits discrimination against an applicant or employee because he or she exercised any right afforded him or her that is specifically protected by section 96(k). There is an exemption from section 98.6 if the employer and the employee have entered into a "signed contract" to protect the employer against any conduct by the employee that is in direct conflict with the employer's "essential enterprise-related interests." An employee handbook or personnel policy might fit the description of a contract. In Barbee v. Household Automotive Finance Corp. (2003) 113 Cal App 4th 525, the Court held that the employer did not violate Section 96(k) by discharging a supervisor for dating a subordinate. The supervisor also alleged the discharge violated his state constitutional privacy rights, though the supervisor had no reasonable expectation of privacy in his relationship with his subordinate because the employer had a policy that prohibited intimate relationships between supervisors and employees reporting to the supervisors. Supervisors were required to notify management of any such relationship so management could take appropriate action to avoid conflicts. The court found the policy was reasonably related to the employer's legitimate interest in avoiding conflicts of interest and sexual harassment claims. 1. Off-duty Alcohol and Drug Use A California public employer may be prohibited from terminating an employee who, for example, posts pictures of himself intoxicated at a party (especially if the employee is over the age of 21). However, an employer has the right to discipline an employee because he or she drinks or uses drugs while off duty if, and only if, the off duty behavior has some effect on the employee s work or on the company s business, such as most obviously when an employee shows up for work under the influence of alcohol or drugs. In New York Department of Correctional Servs, 87 LA 165 (Babiskin, 1986), an arbitrator decided that two correctional officers were properly discharged after they were observed snorting cocaine in a night-club parking lot while off duty. The arbitrator found there was a direct and substantial relationship between their off-duty conduct and their fitness to perform their duties as correctional officers. Another arbitrator in Wayne State Univ., 87 LA 953 (Lipson, 1986) found that a university facilities manager was properly discharged after being arrested for possession of

11 City Attorneys Department 2010 Annual Conference Page 10 cocaine, since his position required substantial contact with the community and his success in the position depended upon leadership and trust attributes. 2. Moonlighting The scope of section 96(k) is broad. By its terms, the statute appears to prohibit employers from preventing or disciplining employees for holding second jobs. But section 98.6 allows an employer to enter into an agreement under which employees outside activities are limited if the agreement is necessary to protect the essential enterprise-related operations of the employer and breach of the agreement will result in a material disruption of the essential enterprise related operations of the employer. At least one Deputy Labor Commissioner has indicated he would find a violation of section 96(k) if an employee were fired for working another job during hours when the employee was not otherwise required to be at work for the employer. Such an interpretation has clear implications for "moonlighting" policies many employers include in employee handbooks. That said, a properly-drafted conflict of interest policy likely would survive a challenge that it violates section Typically, rules against moonlighting have been held to be reasonable on the basis of either adverse impact or a conflict of interest. Examples of an adverse impact on the primary employer include causing excessive absenteeism or tardiness (or both), or preventing the employee from giving his full attention and effort to his primary job. In return for wages paid, employees are under an obligation to regularly report for work and, to the best of their abilities, meet the physical demands place upon them by their duties. If they are engaged in other activities which in any way make it difficult or impossible to fulfill their responsibilities, management acts with full justification when enforcing prohibitions against such outside conduct. An example is a case where the pressure of working two jobs caused a bus driver not only to miss time from his primary job, but also to falsify the reasons for his absences and accept sick leave benefits under false pretenses. Alameda-Contra Costa Transit Dist., 76 LA 770 (Koven, 1981). However, every moonlighting case has to be considered on its individual facts. 3. Unlawful Conduct In California, the law is far from clear as to whether an employer may discipline an employee for illegal off-duty conduct. An arbitrator in Space Gateway Support, 118 LA 1633, (Abrams, 2003) ruled that two off-duty misdemeanor arrests for alleged drunk and disorderly conduct did not constitute just cause for termination for the following reasons: (1) The Company failed to prove in a convincing fashion the nexus between the out-of-plant conduct and the Employer s business. (2) The Company failed to do an adequate investigation of the facts before it acted. Thus, a cautious employer is reminded to conduct a prompt and fair investigation and then carefully consider the level of detriment to the organization before disciplining an employee.

12 City Attorneys Department 2010 Annual Conference Page 11 Generally speaking, if off-site unlawful conduct occurs, and the conduct is not connected with the employment and is not apt to reflect upon the employer s reputation or impair operations, morale, safety, or efficiency, it is not then the proper basis for disciplinary action against the employee. In Victorian Instrument Co., 40 LA 435, 436 (Kates, 1963), however, an arbitrator held that when an employee went to work in the employer s Assembly Department, a coworker jumped to the conclusion that she was literally throwing her weight around bumping other employees when passing through the narrow aisles. The employee in return, felt insulted by uncomplimentary personal remarks a coworker made about her privately and in the presence of other employees. Finally deciding she had enough, the employee attacked her tormenter one day during the lunch break off site. While the latter was walking toward a local restaurant, the employee leapt upon her from behind with a fingernail cleaner in hand, scratching her face and cutting her clothes. The ensuing struggle, in which two other employees became involved, was finally broken up by a bartender from a nearby tavern. Both women were discharged. This type of scenario is a classic case of off-premises misconduct that supported disciplinary action because of its close connection to the employees working lives. 4. Will You Win The Arbitration? Each arbitration decision is very fact specific. Since section 96(k) has such a broad scope, it may seem as if a public employer cannot regulate or monitor any lawful off-duty conduct of their employees. However, arbitrators Hill and Kahn have identified the following five criteria applied by arbitrators in determining whether off-duty conduct is a legitimate concern of the employer: 1. the characteristics of the employer whether the employer has high public visibility so that adverse publicity might affect its reputation or operations the likelihood that the employer will suffer adverse consequences if the employee is not disciplined how much contact the employee has with the public whether success in the position is based on leadership and trust; 2. the location of the employer e.g. a prominent employer in a small town may legitimately be more sensitive to a scandal based on off-duty misconduct than an employer in a large metropolitan area; 3. the nature of the misconduct whether it is violent or destructive and whether, if criminal, it is a misdemeanor or a felony; 4. the occupation of the offender whether there is a link between his or her duties and responsibilities and the outside conduct (the extent to which the publicity surrounding the conduct has connected the employee to the employer in the public mind); and 5. the extent and kind of publicity whether the public s attention has been focused on the misconduct the amount of adverse publicity and the embarrassment to the employer.

13 City Attorneys Department 2010 Annual Conference Page 12 (M. Hill, Jr. & M.L. Kahn, Discipline and Discharge for Off-Duty Misconduct: What are the Arbitral Standards? Arbitration (Proceedings of the 39 th Annual Meeting, National Academy of Arbitrators 1987).) IV. Social Media Considerations Social media applications such as blogs, social networking, and video sharing have surged in popularity over the past few years and, in one form or another, are used by employees both inside the workplace and off-duty. According to its own statistics, Facebook, the most popular social networking site in the U.S., has over 400 million active users who, in total, post more than 60 million status updates each day and upload more than 3 billion photos each month. (Facebook Press Room, (last visited Mar. 3, 2010). Several legal issues are implicated by attempting to regulate off-duty internet activity. From an employee s perspective, an employer regulating internet activity may violate constitutional rights (as addressed above), the Stored Communications Act, political activity statutes, lawful activity statutes (as addressed above through analysis of Labor Code sections 96(k) and 98.6), collective bargaining statutes, and whistle blowing protections. On the other hand, from the employer s perspective, regulating employees off-duty internet activity may prevent harassment and discrimination, damage to the government s reputation, interference with job functions and the workplace in general, protection of confidential information, and negligent hiring/retention. Such employer concerns are not frivolous or unjustified. Last year an ex-convict arrested in New York City for possession of a weapon was able to have his charges dismissed by using the arresting officer s MySpace and Facebook status against him. At the criminal trial, a NYPD officer was questioned by defense counsel as to why his Facebook status as the trial neared had him watching Training Day to brush up on proper police procedure. He further had to explain why his MySpace page was set to the mood of devious on the day of the arrest, and why he made certain comments on a video he made about using excessive force on suspects. The suspect alleged the officer planted the gun found on him and, with the help of the officer s online postings, was able to convince a jury the officer could not be believed. (Gothamist, March 3, 2009, review.blogspot.com/2010/02/pitfalls-in-social-networking-sites-for.html.) In order to prevent situations like this from occurring, many public employers want to know whether they may discipline or terminate their employees for what they say or do on the internet on their own time that is in some way damaging to the employer. The term dooced is new vernacular that refers to being fired for putting content on a website or blog. ( For example, an assistant public defender in Winnebago County, Illinois was dooced after 19 years of service because of her blog postings. She wrote posts to her blog in 2007 and 2008 that referred to one jurist as Judge Clueless and thinly veiled the identities of clients and confidential details of a case, including statements like, This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because he s no snitch. ( Recently, a North Carolina middle school teacher was placed on leave pending an investigation into her remarks on Facebook about her students, the South, and Christianity (referencing ignorant Southern rednecks ).

14 City Attorneys Department 2010 Annual Conference Page 13 In 2009, a court held that a prosecuting attorney engaged in protected speech when he published a letter on his blog which he had written four years earlier questioning the justification for a police shooting. Ranck v. Rundle, 29 I.E.R. Cases 576 (S.D. Fla. 2009). In 2004, the prosecutor was sent to the scene of a police shooting, and expressed his opinion that it was not a clean shoot, and the prosecutor was then removed from the investigation. He wrote a memo to his boss objecting to his removal, and then several years later made a public records request for the memo. He then published it on his criminal law blog and was suspended for 30 days for that and other conduct, including commentary about his supervisors veracity, failing to follow office procedure in hiring expert witnesses, and in-court misconduct. The Court applied similar principles as were used in Garcetti, Connick, and Pickering (as discussed above) and held that the employee was speaking as a citizen on a matter of public concern when he published the memo on his blog. The memo may have been originally written in the course of his duties, but it was published later when he was in the role of a private citizen. The court dismissed the case in favor of the employer nonetheless because the employer demonstrated that the other misconduct was sufficient to warrant discipline. A. Guidelines for a Work Rule on Off-Duty Internet Activity In order to avoid butting heads with any constitutional protections or California state laws, public employers should use the following guidelines: Recognize that employees have the right to participate in off-duty social networking, other internet activity, and texting that does not involve the employer s equipment and does not adversely impact their job or the employer s interests No information shall be posted or communicated in such a forum which is discriminatory, derogatory, abusive, profane, or offensive towards another employee, contractor, vendor, or other person with whom the employee comes in contract in the course of their job. Employees are expected to comport themselves professionally both on and off duty. Any employee who expresses opinions on civic affairs in such a forum should include a disclaimer stating that any opinions expressed are the employee s own and do not represent the opinion of the entity of its officials Failure to follow the policy will result in discipline up to and including termination.