California Public Agency Labor and Employment Blog - Useful Information for Navigating Legal Challenges

Last month, the National Labor Relations Board, the federal agency overseeing private sector labor relations, issued its much anticipated decision in Karl Knauz Motors, Inc dba Knauz BMW and Robert Becker (“Knauz BMW”).  The Board held that the BMW dealership’s “courtesy” rule, which among other things prohibited employees from making remarks that were “disrespectful” to the dealership, was an invalid restriction on what could constitute employee “concerted activities” for their “mutual aid or protection.”  Section 7 of the National Labor Relations Act (“NLRA”) prohibits employers from improperly restricting such employee concerted activities, including employee speech and discussion that meets the statutory definition, i.e., that addresses qualifying workplace issues.  As described below, Knauz BMW considers “concerted activities” in the rapidly developing context of social media.

The NLRA was passed in the midst of the Great Depression as part of Franklin D. Roosevelt’s New Deal.  The NLRA gave essentially all private sector workers in the country the right to have labor unions as their bargaining representatives and governed the bargaining relationship between unions and management.  But the Act also gave some substantial protections to employees who worked in non-union environments.  Section 7 of the Act gives private sector employees in general the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Since its creation, Section 7 has provided employees with rights in some unique situations.  In 1962, for example, in NLRB v. Washington Aluminum Co., the U.S. Supreme Court considered the case of employees in a Baltimore machine shop who had made the collective decision to walk off the job because, as one described, it was “too damned cold to work” in their facility.  (The high that day was 22 degrees, the low was 11 degrees, and the facility’s chief source of heating had broken.)  There was testimony that part of the reason for the walk-out was to protest the conditions in the hope management would improve them.  The Supreme Court concluded that the employees’ spontaneous decision as a group to walk out constituted protected concerted activity under Section 7, so that the employer had acted in violation of the Act in subsequently firing them.  The employer had to reinstate all the employees. 

Courts have subsequently held that this “concerted activity” for “mutual aid or protection” extends not just to employee action, but to employee discussions and speech that relate to workplace issues within the scope of the statute.  Section 7 thus creates a free speech right, of a limited sort, for private sector employees as against their employers.  Its appearance over the decades in the non-unionized workplace has been sparse in the case law, possibly because the Section 7 rights cannot be asserted by trial lawyers in traditional court proceedings.  Instead, they must be asserted through unfair labor practice charges instituted through the NLRB.  Also, in workplaces without unions (which is much of the nation’s private sector today), few employees know about these Section 7 rights. 

In recent years, however, the NLRB has brought about a resurgence in this area of the law, targeting non-unionized workforces.  First, the NLRB has made an effort to advise all private sector employees of their NLRA rights, by attempting to put in place a requirement that employers – even if non-unionized – put up posters advising employees of their NLRA rights.  (Some federal courts found this poster requirement to be outside the scope of the NLRB’s power, and the requirement has been stayed pending further judicial determination.) 

In addition, the NLRB has aggressively enforced Section 7 in the new area of social media.  Starting in the last several years, NLRB regional offices across the country have begun issuing complaints in response to unfair labor practice charges by employees who allege they were terminated for harsh, joking, or critical comments about their employers made on their Facebook pages or other social media sites.  Our blog has covered these cases extensively. Examples of these cases are Hispanics United of Buffalo, which involved termination of employees who had posted on Facebook criticisms of workload and staffing decisions of their employer, and American Medical Response of Connecticut, Inc., in which an ambulance company employee was terminated for posting on Facebook vulgar and negative comments about her supervisor.

Knauz BMW was one of these early social media cases.  It happens to be the first involving an actual firing based on social media posts to be heard by the full NLRB in Washington D.C.  In Knauz BMW, a sales employee at a BMW dealership in Illinois, Robert Becker, posted on Facebook (1) remarks critical of his dealership’s choice of food and beverage for an event to celebrate a new car line (hot dogs from a cart and 8-ounce water bottles), and (2) remarks and photographs that made light of an accident at a Land Rover dealership also owned by his employer, in which the underage son of a customer drove a vehicle into a pond.  Management learned of these posts, and directed that the employee remove them, which he did.  Several days later, according to the evidence in the administrative hearing, a manager called the employee into a meeting and tossed copies of the posts in front of him, asking him “What were you thinking?”  The employee was subsequently terminated.

The NLRB’s regional office issued a complaint on the ground that the dealership had infringed upon Becker’s Section 7 rights.  An administrative law judge at the Board conducted a hearing and concluded that the employee’s comments on Facebook about the quality of food at the opening event did qualify as protected concerted activity under Section 7, because the quality of the event as a whole would have an effect on the sales commissions salespersons like Becker could earn.  But the administrative law judge ultimately upheld the employee’s termination, finding that the management had decided to terminate the employee based not on the comments about the food and beverage at the event but because of the photos and off-color jokes about the accident at the Land Rover dealership.  The judge found that the speech on Facebook about the accident was not protected concerted activity. 

On September 28, 2012, the full Board in Washington D.C. agreed with the administrative law judge and determined that the termination was lawful.  What dominated the Board’s decision, however, was not the termination but another issue the regional office had asked the administrative law judge to decide – whether provisions in the dealership’s employee handbook were so broad that they in themselves operated to inhibit employees in their exercise of Section 7 rights, so that the provisions were unlawful.  The administrate law judge had determined that the dealership’s “Courtesy Rule,” and a few other broad provisions, violated Section 7.  The Courtesy Rule provided:

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The majority of the Board agreed with the administrative law judge.  The Board described that prior precedent required that any workplace rule which “reasonably tends to chill employees in the exercise of their Section 7 rights” violates the NLRA.  It found the BMW dealership’s Courtesy Rule unlawful “because employees would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or reputation of the Dealership’ as encompassing Section 7 activity, such as employees’ protected statements -- whether to coworkers, supervisors, managers, or third parties who deal with the Respondent -- that object to their working conditions and seek the support of others in improving them.”  The Board observed that nothing in the policy or handbook advised employees that Section 7 rights were excluded from this prohibition.  The Board also observed that an employee reading the policy would “reasonably assume” an employee’s statements of protest or criticism to be “disrespectful” or “injur[ious] to the reputation of the dealership” and thus prohibited by the Courtesy Rule.  

A few weeks before the full Board decided Knauz BMW, it issued a decision that did not involve a termination, but that does provide guidance on private employee free speech on social media in light of Section 7.  In Costco Wholesale Corp, on September 7, 2012, the Board held that Costco’s social media policy prohibiting the posting of any statements that “damage Costco . . . defame any individual or damage any person’s reputation” violated Section 7 by chilling employee’s speech that could constitute protected concerted activity.

What do these NLRB decisions mean for the public sector?  They are not binding on public sector employers, whose labor relations standards are instead governed by state law.  In addition, the California laws governing public sector labor relations have different language on employee rights.  Nevertheless, PERB and California courts interpreting these statutes often look to federal authorities for general guidance, and it is worthwhile for public sector employers to be vigilant of the private sector agency rulings and also to review employment policies that may affect employees’ abilities to criticize their workplace, complain about pay or workplace safety issues, or complain about the operations of their agency.  

The National Labor Relations Board issued a new report discussing seven social media cases handled by the agency.  This report is the third released by the NLRB regarding social media in the last year, and focuses on the policies of seven companies.  The report provides guidance to employers who have social media policies or are considering adopting them.  Of the seven cases detailed in the report, the NLRB found portions of the employers’ social media policies to be unlawful in all but one of the cases.

Section 7 of the National Relations Act gives both unionized and non-unionized employees the right to discuss the terms and conditions of their employment with co-workers and others.  Therefore, when evaluating an employer’s social media policy, the key question the NLRB will look at is whether the policy chills or restricts employees’ ability to discuss working conditions with one another.  Consequently, in the six cases where the NLRB found the employers’ social media policies to be unlawful, the policies contained ambiguous, overly broad language that could be interpreted as restricting employees’ ability to discuss their working conditions with co-workers or with the public.  The policies also contained no limiting language or provided any context that would clarify to employees that the policies did not restrict such rights.  

The report also discusses the revised Wal-Mart policy the NLRB deemed lawful and includes it as an attachment.  The NLRB found the policy lawful because it is unambiguous and provides examples of prohibited conduct so that, in context, employees would not reasonably read the policy to prohibit Section 7 activity. 

The NLRB’s report with its specific analysis of various employer social media policies offers the following guidelines for employers with existing social media policies or for employers in the process of adopting such policies:

1. Confidentiality provisions should include clarifying and restricting language with examples of clearly illegal or unprotected conduct to preclude the possibility that employees will believe the language to include protected activity.  For example, employees may be precluded from disclosing trade secrets, information subject to financial disclosure laws, and attorney-client privileged communications as they do not have a right to disclose this kind of confidential information.  When drafting language regarding confidentiality, employers should also include examples of what they consider to be trade secrets or financial information.  For example, the term “financial information” could be interpreted to include employee salaries which employees have the right to discuss under Section 7.  However it is illegal for employees to give “inside information” to others for purposes of buying or selling stocks.
2. Language that prohibits employees from posting material that could be viewed as malicious, obscene, threatening or intimidating should also include examples of such conduct.  The NLRB found the portion of Wal-Mart’s policy entitled “Be Respectful” lawful because it gave examples of prohibited conduct.  For example, the policy included language stating “Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.”  Similarly, language that prohibits bullying or retaliation would likely be upheld and found not to restrict Section 7 activity.
3. Employers may limit discriminatory remarks, harassment and threats of violence.  Because this type of conduct is also illegal under laws such as Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act, employers may properly limit such conduct on social media provided that such language is not being used to limit Section 7 conduct. 
4. Broad language discouraging employees from “friending” co-workers was found unlawful because it could be interpreted as restricting employees from discussing the terms and conditions of their employment with each other.
5. Employers may not instruct employees to report unusual or inappropriate social media activity.  NLRB cases have held an employer violates the National Labor Relations Act by encouraging employees to report union activities to management. 
6. An employer also has a legitimate need to protect itself from unauthorized postings that could be attributed to it.  Therefore, an employer may include a provision in its social media policy requiring employees to receive preauthorization before posting a message that is either in the employer’s name or that could be reasonably attributed to it.  An employer may also prohibit employees from attributing any opinions or statements to it on social networks.  Finally, the NLRB has also found lawful language requiring employees to explicitly state in their posts that the message reflects their own opinion, and not that of the employer. 
7. Employers may instruct employees to not use social media while on work time or on employer-owned equipment unless such use is work-related and authorized by the employer.  Employers may also prohibit employees from using their work e-mail addresses to register on social networks, blogs or other online tools for personal use. 

Because the NLRB’s report provides specific examples of language in social media policies it found to be lawful or unlawful, employers are encouraged to review the report when preparing their  own social media policy.  We also encourage employers with existing social media policies to review their policies for compliance with the most recent NLRB findings.  Employers may contact one of our attorneys at any of our four offices with any questions.

There is no getting around it anymore: your employees are on Facebook.  Recent statistics from Facebook’s website state that it has over 800 million users.  It is time for all employers to know the rules surrounding employee use of social media. 

For purposes of the National Labor Relations Board (NLRB), social media is described as online technology tools that include text messages, audio, video, image, podcast, and other multimedia communications. 

Even the NLRB General Counsel is on the bandwagon to educate employers about those developments.  An initial report was issued by the NLRB in August 2011.  Then, on January 24, 2012, the NLRB General Counsel issued a second, updated report describing 14 cases submitted to the NLRB’s Division of Advice pertaining to social media policies and employee discipline issues based on social media postings by employees.  These discipline cases are the focus of this blog post.  It is worth noting that the NLRB is applicable only to private employers.  While PERB has not weighed in on this issue, it will quite likely follow the NLRB's lead.

The basic issue before the NLRB was whether employees, by their online postings, were engaged in protected activity, and thereby immune from disciplining by their employers based on the content of the posts.  The NLRB analyzed the topic of the posts to determine whether they involved workplace issues, and it analyzed whether the posts involved discussions among employees concerning their working conditions. The NLRB explained that an employee is not engaged in protected concerted activity where posts concern “personal gripes.”  The analysis is very fact-specific, so the slightest change of facts can change the outcome.

In some of the cases, the NLRB found that the employee had not engaged in protected activity, and thereby discipline was permissible.  For example, in one case an employee was reprimanded and then posted an expletive on Facebook about her employer. Two of her co-workers “liked” the post. The same day, the employee posted again, complaining that her employer did not appreciate its employees, but none of her co-workers responded to this second post.  The NLRB concluded that the employee had merely communicated her own frustration, was not intending to initiate collective action or a discussion about terms and conditions of employment, so her discipline was upheld.

In contrast, in one case the NLRB disapproved discipline where an employee was found to have invited group discussion about the terms and conditions of employment. The employee posted a series of items on Facebook, complaining that she had been reprimanded for getting involved in her co-workers’ issues with their employer.  Although the Facebook posts did not actually generate collective discussion, the NLRB said they were protected because they were an outgrowth of the employee’s discussions with her co-workers about the terms and conditions of their employment.  In a similar case, an employee criticized her manager in a Facebook post. The NLRB found the post to be protected activity because it involved the employee’s belief concerning her supervisor’s performance and was part of a broader Facebook conversation about management. The NLRB examined whether the employee’s comments were too disparaging to be protected, but found that, since they were made at home and while off-duty, they did not sufficiently disrupt the workplace so as to be unprotected.

The NLRB’s updated report provides employers some guidance as to how social media issues will be evaluated.  The cases discussed in the report demonstrate the fact-specific nature of the analysis the NLRB will conduct.  Like the technology itself, the case law governing social media issues is evolving.  Employers are encouraged to consult with legal counsel regarding their social media policies, and regarding whether discipline may be imposed based on employee online conduct.

This post was co-authored by Elizabeth Arce

It seems that every time you turn on the news some new technological innovation is being announced.  For example, recent weeks have seen the unveiling of new tablet computers and smartphones.  In addition, social media platforms such as Facebook and LinkedIn are constantly announcing upgrades to their websites to improve the way users communicate with one another via the internet.  However, just as technology is rapidly changing, the law regulating the use of social media by employees also continues to evolve. 

Since our initial blog posts and article on legal developments regarding employee social media use, the National Labor Relations Board’s (NLRB) Office of General Counsel released a report analyzing various issues relating to social media use by employees and employer policies that attempt to regulate it.  In addition, two NLRB Administrative Law Judges (“ALJs”) issued decisions that provide further guidance in these areas. 

In Hispanic United of Buffalo (“HUB”), an ALJ ordered a nonprofit corporation to reinstate five employees who were fired after posting comments on Facebook criticizing workload and staffing issues.  The ALJ concluded that the employees engaged in protected concerted activity because they were discussing matters that involving terms and conditions of their employment. 

In Knauz BMW, an ALJ found that a car dealership’s employee handbook contained policies that restrict and limit an employee’s right to engage in concerted activity.  However, the ALJ upheld the employer’s termination of an employee who posted pictures of an accident at another dealership, also owned by his employer, with unflattering comments about the salesperson involved in it on the grounds that the posting was not protected concerted activity.

These recent pronouncements from the NLRB clarify the law regarding the scope of social media use by employees and provide the following guidance to employers:

1. Employees’ Social Media Postings With Each Other About The Terms and Conditions of Their Employment Are Protected.  Employees engage in protected concerted activity when they use social media to communicate with one another about work related issues.  Concerted activity will also be found when the employee posts comments that express the views of other employees or that attempt to initiate or induce coworkers to take group action.  This can include complaints among employees about commissions, tax withholding practices and workload and staffing issues.  Thus, posts that are not work related or that express individual gripes, frustrations or complaints are not protected. 
2. Work Related Postings That Are Sarcastic or Mocking in Tone May Be Protected.  In Knauz BMW, the ALJ considered two Facebook postings by the employee.  The first involved criticism of a sales event, including the inadequacy of the food being served, which employees felt could affect employee compensation.  The second posting involved an accident at another dealership.  The ALJ found that the posting concerning the accident was not protected concerted activity, and that the employer terminated the employee for that posting.  The decision discusses what language rises to the level of disparagement necessary find otherwise protected activities unprotected.  The NLRB has found statements that are mocking or sarcastic ,and terms such as “a-holes” and a “cheap son of a bitch” attributed to supervisors to be protected concerted activity when uttered in the course of otherwise protected concerted activity.  Employers must meet a very high threshold to prove language is disparaging and beyond protection in the context of employees acting together to challenge their working conditions.
3. Polices That Can Be Reasonably Interpreted to Restrict Employees’ Right to Engage In Concerted Activity Are Improper.  In evaluating whether a social media policy improperly limits an employee’s ability to engage in protected concerted activity, employers should ask whether the rule or policy explicitly prohibits the exercise of this right or would reasonably tend to chill the employee’s exercise of it.  In order words, policies that could be interpreted as discouraging an employee to discuss the terms and conditions of employment are likely improper.
4. Policies That Can Be Reasonably Interpreted to Protect the Relationship Between the Employer and Its Customers Are Proper.  In Knauz BMW, the ALJ determined that language in an employee handbook stating “[a] bad attitude creates a difficult working environment and prevents to [employer] from providing quality service to our customers” was proper.  The ALJ reasoned that the employer had a right to demand that its employees not display a bad attitude towards customers in order to protect the employer’s relationship with its customers.

Employers who have adopted social media policies should review them with the above guidelines in mind.  Finally, because the law in this area continues to rapidly change, employers should stay tuned to this blog and our Twitter (@lcwlegal and hashtag #lcwsocialmedia) for further updates.

As the summer draws to an end, parents and students are beginning to prepare for the start of the school year.  For many parents, sending their children off to school can be both a joyous and fearful occasion.  The worry experienced by parents is fueled, in part, by news headlines of teachers having inappropriate sexual relationships with their students.  In order to address these concerns, the Missouri Legislature recently signed into law the Amy Hestir Student Protection Act.  This so-called “Facebook Law,” which was named after a student who was sexually abused by her junior high school teacher, regulates communications between teachers and students on social media websites such as Facebook and Twitter.  State Senator Jane Cunningham, who sponsored the bill, said the purpose of the law is to discourage teachers and students from engaging in exclusive communications with each other through social networking platforms because such contact with each other “is a pathway into sexual misconduct.”

The new law requires school districts to develop a written policy concerning teacher-student and employee-student communications that include guidelines on the appropriate use of electronic media including text messaging and social networking sites.  In addition, the new law prohibits teachers from establishing, maintaining, or using a work-related website unless it is available to school administrators and the child's parents or legal guardian. Finally, the law prohibits teachers from establishing, maintaining, or using a nonwork-related website that allows exclusive access with a current or former student. 

Passage of the “Facebook Law,” which is believed to be the first of its kind in the country, drew immediate criticism.  Opponents argue that the law will cause teachers to communicate less with their students resulting in weaker teacher-student relationships.  Opponents also argue that the law chills free speech.  However, those in favor of the law insist that it does not restrict speech between educators and students.  Rather, the law merely provides transparency to the process by giving parents, guardians, and social administrators access to the websites where teachers and students are communicating with one another.

It remains to be seen how long Missouri’s “Facebook Law” will remain in effect and whether it will prompt other states such as California to adopt similar legislation.  Opponents of the law have already started a campaign to repeal the law.  The law may also be subject to court challenges on constitutional grounds.

Regardless of whether the “Facebook Law” survives, the reality is that teachers and students are increasingly using social networking sites as a vehicle to communicate with each other.  Consequently, school districts should adopt policies and guidelines regarding the appropriate use of social media platforms.  This may include deciding whether to allow teachers and students to communicate through social media at all, or to prohibit it altogether.  If the district allows such contact, then guidelines should remind teachers and school staff to consider the content on their social media sites including their profile, pictures, and postings on their wall.  Anything that they would not feel comfortable sharing in a classroom setting or in the presence of parents, should not be shared with students via social media.  Educators should be trained on using social media to foster learning and enhance the educational experience.  Finally, educators should be trained about separating their professional from their private life, and they should be reminded that their relationships with students, both in and out of the classroom, must be appropriate and comply with legal and professional standards. 

This guest post was authored by Liebert Cassidy Whitmore

In two weeks, more than 1,000 California water district professionals will gather at ACWA's 2011 Spring Conference & Exhibition. Liebert Cassidy Whitmore Attorneys, Shelline Bennett and Morin Jacob will be presenting on two areas of our practice: hiring/reference checks and social media.  In addition, we will be live tweeting Morin’s presentation on social media, “Caught in the Net: Tools and Tips for Managing Employee Misconduct and Other Issues Arising in Social Media Sites” on Thursday, May 12 from 2:15 p.m. to 3:45 p.m. Join us on Twitter and use the hashtags #lcwsocialmedia #ACWAConf.

Here is a calendar of the LCW presentations:

Wednesday, May 11 | 2:15 p.m. to 3:45 p.m. | Human Resources Program: "You’re Not the Person I Hired!" Unearthing an Applicant’s Past Before it Buries You | Shelline Bennett

Thursday, May 12 | 2:15 p.m. to 3:45 p.m.  | Caught in the Net: Tools and Tips for Managing Employee Misconduct and Other Issues Arising in Social Media Sites | Morin Jacob

For those attending the ACWA Conference, please stop by the Liebert Cassidy Whitmore booth in the exhibition hall to meet Susan Bonner from our San Francisco Office and learn more about services.

To view other upcoming LCW speaking engagements, please visit our website.  To learn how you can have an LCW presentation at your association meeting, contact info@lcwlegal.com.

This post was co-authored by Elizabeth Arce

The popularity of social media websites such as Facebook and Twitter have created new and unprecedented challenges for employers.  The New York Times reported recently that even commanders in our Armed Forces have expressed concern about troops playing with iPhones and BlackBerrys when they should be working.  Because the law has not caught up with the use of social media, navigating through issues raised by this technology can be a difficult, complicated and frustrating process for employers.  Further, as we recently reported, employment law enforcement agencies such as the National Labor Relations Board will continue to scrutinize employer social media policies.  Thus, employers can no longer afford to ignore social media.  Both employers and employees should be aware of the following 10 issues raised by this growing medium.  

1.   The Internet is a Public Place.  Employees need to be aware that everything posted on the Internet is either public or can be made public.  For example, although you may set your Facebook account privacy settings as accessible to “friends only,” there is no guarantee that a “friend” will not download the picture, show your page to a “non-friend” or disseminate the picture via email or other social media. at a recent conference addressing social media issues in law enforcement, our partner Melanie Poturica reminded the audience, “Never put in electronic form what you wouldn’t want to be received by at least one million people.”  Employees should exercise common sense and good, ethical judgment when using social media.  They should also consider the power of words and images and think about how they will be viewed by others, including current and future employers. 

2.   The First Amendment Does Not Protect All Internet Speech.  Employees generally believe everything they say on the Internet is protected under the First Amendment.  This is a common misconception.  First, the First Amendment only applies to government employers, thus, employees working for private entities are not protected by the First Amendment.  Second, the First Amendment only protects speech made by an individual acting as a citizen on matters of public concern.  Speech made by employees as part of their job duties or speech that is not about a matter of public concern is not protected.  Additionally, speech that violates the law is not protected.  For example, false or harassing speech can give rise to defamation or harassment claims.  Disclosing confidential information can lead to invasion of privacy claims.  

3.   Social Media May Be Reviewed as Part of Pre-Employment Background Checks.  A prospective employer may legally use social media if the information obtained is publicly available (i.e. not password protected) and is posted by the job applicant (e.g. on Facebook).  However, employers should never create an alias or provide false information to gain access to a website as doing so violates federal and state law.  Employers should also keep in mind that the information is unverified.  Importantly, employers must refrain from using the information for discriminatory purposes.  Employers should only consider information that relates to the applicant’s ability to perform the job, and that could have been legally elicited during an interview.  The best practice is to use a third party or designated individual to conduct the background check and to identify specific job related criteria that will be covered by the background check. 

4.   Content May Be Subject to a Public Records Act Request.  Pubic employers are subject to the Public Records Act (“Act”) in California.  The Act provides that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in the state.”  The term “public records” is broadly defined to include “any writing[s] containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Thus, employees must not open a social networking account using their agency issued email without agency authorization.  Any information related to the conduct of the public agency’s business communicated by a public agency or employee via a social networking site may potentially be subject to the public records act.  Although the Act exempts personnel, medical or other information that would constitute an unwarranted invasion of privacy, no court has yet examined the issue whether information communicated via social networking sites sent through agency-owned property falls within this exemption.    

5.   Separate Work Related Social Media Use from Personal.  Employers should also encourage employees to separate their work related use of social media from their personal use by using privacy settings to restrict access to personal information on private websites.  Both employers and employees should also consider whom to invite or accept into their social network.   These individuals will have access to “private” information that they can easily print, save, or forward to others.  

6.   Personal Electronic Communications May Be Subject to Monitoring.  If an employer provides employees access to its electronic communications resources, such the Internet, computers, and email, it should adopt a policy putting employees on notice that communications on those resources are agency property, are not private and are subject to monitoring.  

7.   Employee Off-Duty Social Networking Use May Give Rise to Discipline.  An employer may discipline employees for social networking conduct that undermines its mission, purpose and credibility with the public.  This can include harassment, bullying or other conduct that affects the agency.  Employees may also be disciplined for social media conduct that violates agency rules or policies or that discloses proprietary information. 

8.   Improper Use of Social Media May Lead to Liability.  Employee postings of confidential information on the Internet such as third party (other employees, personal employee and student information could open employers up to liability for violating privacy laws.  In addition, employees who post negative comments about one another on social networking sites may give rise to harassment, defamation or discrimination claims against the employer.  Finally, information obtained from social networking sites, workplace emails and Internet usage can be used as evidence against the employer. 

9.   Posting Content Anonymously Does Not Necessarily Protect One’s Identity.  Posting anonymously or under a pseudonym will not necessarily protect an author’s identity.  A person seeking the identity of an anonymous user can serve a subpoena on the user’s Internet service provider (ISP), email provider, or web hosts that ask for documents or information that will reveal the user’s identity.  Although the user can attempt to block or quash the subpoena, courts have discretion to allow the disclosure of identifying information. 

10. Social Media Policies Should Be Narrowly Tailored.  Employees have the right to discuss their wages, hours and working conditions.  Thus, social media policies should not be overly broad and must balance the employer’s needs with the right of employees to discuss working conditions.  Properly worded policies may prohibit employees from making disparaging comments unrelated to work, abusive, libelous or obscene statements, and anticompetitive, disloyal behavior.

A session will be conducted on this topic at the annual LCW Public Sector Employment Law Conference to be held March 17-18, 2011 in Newport Beach, CA.  Please click here to view the conference brochure. Additionally, the conference binder, containing all conference handouts, will be available for purchase following the conference. Please visit our website after the conference, or email us if you would like to purchase the materials in either binder or CD format.