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It’s generally a good practice to set standards of online employee conduct to prevent the social media activity of employees from disrupting the workplace or tarnishing your organization’s reputation.  But the mere fact that an employee comments on controversial subjects on social media doesn’t necessarily justify disciplinary action.  That’s especially true in the case of a public employer.  Disciplining a government employee for posting social media messages about a topic of public concern could violate the First Amendment, as illustrated by a recent Ohio decision.  Hamm v. Williams, Case No. 1:15CV273 (N.D. Ohio, Sept. 29, 2016).

Hamm centered around the controversy over the fatal police shooting of two unarmed African-Americans following a high-speed car chase.  The incident — sometimes known as the “137 shots” in reference to the number of bullets that were fired at the couple — was highly publicized and the target of protests by the Black Lives Matter movement.  Seven Cleveland police officers were indicted as a result.  While off-duty, a Cleveland police officer (Hamm) used his home computer to post Facebook comments criticizing the indictments and showing support for his colleagues.  Approximately one week later, Hamm wrote on Facebook that an unidentified individual found his original comments offensive and had reported the first post to his supervisors.

After conducting an investigation, the supervisors determined that Hamm had breached department rules against using social media to discuss a criminal investigation involving the department or posting material that would “tend to diminish” public esteem for the department.  The department suspended Hamm for 10 days.  Hamm sued the city for retaliating against him for exercising his First Amendment right to free expression.

Under U.S. Supreme Court precedent, government employees have a First Amendment right to speak as private citizens on matters of public concern.  However, an employee’s constitutionally protected right to free expression must be balanced against a public employer’s interest in efficient delivery of public services.

The court determined that Hamm was speaking as a private citizen, as he had posted the Facebook comments while he was off-duty using his home computer.  The subject of his comments – a highly publicized police shooting and the aftermath – was a matter of “political, social or other concern to the community” and not just a “quintessential employee beef.”

The city argued that a police department, as a paramilitary organization charged with maintaining public safety and order, had a greater interest in regulating the speech of its employees than an ordinary public employer.  The city contended that it was justified in ensuring that officers are not publicly criticizing an investigation or placing a stigma on the criminal justice system or internal police operations.

The court rejected the city’s arguments because it found no evidence that Hamm’s posts actually resulted in work stoppages or that any officers declined to fulfill his or her duties because of Hamm’s posts.  The court therefore allowed Hamm to proceed to trial on his First Amendment retaliation claim.

Hamm is a good reminder that discipline should not be a knee-jerk reaction to controversial social media posts of an employee.  Conduct an investigation and collect evidence of the actual or potential disruptive impact of the comments before taking disciplinary action.  If you’re a public employer, the First Amendment adds an extra layer of protection for employees.  Consult experienced counsel to help you analyze the impact of constitutional protections for online employee speech.

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You’ve adopted a social media policy after hearing all the warnings about employees behaving badly on social media. But do you enforce the policy consistently? Failure to do so can be risky business, as illustrated by a recent federal court decision, Redford v. KTBS, LLC, 2015 WL 5708218 (W.D. La. Sept. 28, 2015). The court in Redford allowed an employment discrimination claim to continue because of management’s uneven enforcement of its social media policy.

The social media policy of KTBS, a Louisiana TV station, instructs employees not to respond to viewer complaints on social media. Chris Redford, an on-air crime reporter for KTBS and a white male, posted a negative comment on his Facebook page in response to a viewer’s comment on a KTBS story. Redford was fired for violating the KTBS social media policy.

Redford sued KTBS for race and sex-based employment discrimination. Redford pointed to KTBS’ treatment of two other employees for their social media conduct. Lee, an on-air personality and an African-American female, responded multiple times to negative viewer comments on the official KTBS Facebook page. She received numerous warnings from management before being fired on the same day as Redford. Sarah Machi, an on-air personality and a white female, responded negatively to a KTBS viewer’s comment on her personal Facebook page, but received no warning or discipline. Based on this evidence, Redford argued that KTBS fired him not for violating the social media policy, but to prevent a potential lawsuit by Lee for race or sex discrimination. According to the court, Redford had a viable claim that he was treated less favorably than Lee and Machi because of his race or sex.

KTBS argued that it took no action against Machi because she posted her comments on her personal Facebook page, which was set to “private” so that only her Facebook friends could access it. Redford’s Facebook page did not have privacy filters turned on, and he often used his page to promote his work at KTBS. Since KTBS apparently considered comments posted on an employee’s “private” Facebook page to be outside the scope of its social media policy, the court reasoned that KTBS’ stated reason for firing Redford could be pretextual if Redford’s Facebook page was considered “private.” This issue had to be resolved at trial, so the court denied summary judgment to KTBS on the pretext issue.

Redford is a good reminder of the importance of consistent enforcement of social media policies. Even-handed enforcement is made easier by clearly spelling out the scope of the policy. If the policy makes a distinction between “company” and “personal” pages, for example, describe the specifically and consider providing examples. Ambiguity and inconsistency are your worst enemies when it comes to enforcing a social media policy.

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Have you ever been tempted to delete a social media message you posted that exposes you or your company to liability? That post that seemed like a harmless joke but now could turn into evidence in a wrongful termination lawsuit. Or that photo that could cast you in an unflattering light. If it ever crossed your mind that no one will notice if you simply pressed the “delete” button, here’s a case illustrating why succumbing to the temptation doesn’t end well.

In Crowe v. Marquette Transportation Company, Gulf-Inland, LLC, 2015 WL 254633 (E.D. La. Jan. 20, 2015), Brannon Crowe sued his employer, Marquette, for injuries he sustained due to an accident that allegedly occurred at work. Marquette discovered a Facebook message Crowe had allegedly sent to a co-worker in which he admitted injuring himself while fishing. This prompted Marquette’s lawyers to serve Crowe with a discovery request for a complete copy of Crowe’s Facebook history.

Crowe’s response to the request was that he didn’t “presently” have a Facebook account. When confronted in his deposition with a printout of a Facebook message that appeared to have been sent from an account with the username “Brannon CroWe,” Crowe claimed that he stopped having a Facebook account around October 2014, and that his account had been hacked. To substantiate his hacking claim, Crowe pointed out rather unconvincingly that, unlike the username on the printout, there’s no capital “W” in his name.

Crowe wasn’t entirely forthcoming. Although Crowe was technically correct that he didn’t have an active Facebook account when he responded to the request in December 2014, the truth was that Crowe deactivated his Facebook account four days after receiving the discovery request in October 2014. To make things worse for Crowe, data in a deactivated Facebook account isn’t deleted. A deactivated Facebook account can be reactivated at any time. Needless to say, the court was displeased with Crowe’s attempts to evade discovery. The court ordered Crowe to provide Marquette with his entire Facebook account history and the login information for all his Facebook accounts.

Although Crowe involved an employee who tried to hide unhelpful social media information, the lessons from the case apply equally to employers. Deactivating a social media account doesn’t necessarily shield information in the account from discovery because the information is probably still available. Deleting a social media account also doesn’t always mean the information in the account is gone forever. It’s not unusual for social media providers to store deleted user data in its servers before permanently deleting the information. And even if social media information is truly deleted, that in itself can be problematic. A person (or company) has a duty to preserve evidence that’s relevant to reasonably anticipated litigation. Violating the duty to preserve can lead to unpleasant consequences, including court sanctions.

Learn from Crowe’s example. The next time you’re tempted to dispose of an incriminating Facebook post, deactivate the temptation, not your Facebook account.

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In the last few years, we’ve seen how the private social media activity of employees can get employers in trouble for violating a variety of laws. The National Labor Relations Act. HIPAA. Title VII. Now you can add the Americans With Disabilities Act (ADA) to the list.

In Shoun v. Best Formed Plastics, Inc., 2014 WL 2815483 (N.D. Ind. June 23, 2014), a federal judge held that an employer may be liable under the ADA for an employee’s Facebook comments about the medical condition of a co-worker. George Shoun, an employee at Best Formed Plastics, sustained a workplace injury and took leave to recover. Shoun’s co-worker, Jane Stewart, learned about his injury because she processed his worker’s compensation claim and monitored his medical treatment for the company. Stewart posted this snarky message on her personal Facebook account: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.”

Shoun sued the company, alleging that Stewart’s post made it liable for violating the ADA. According to Shoun, the post was visible to the business community. Shoun claimed that prospective employers refused to hire him because of the post, causing him emotional distress and mental pain and suffering.

The court refused to dismiss the ADA claim against the company, reasoning that Stewart obtained the information through an employment-related medical inquiry and then wrongfully disclosed it. As a result, Shoun could sue for violation of Section 102 of the ADA, which provides that any information relating to a medical condition of an employee obtained by an employer during “voluntary medical examinations, including voluntary work histories, which are part of an employee health program available to employees at that work site,” must be “collected and maintained on separate forms and in separate medical files and [be] treated as a confidential medical record.” Moreover, the company could be liable for Stewart’s actions even though she posted the message on her private Facebook account in her own time.

Shoun is another reminder of how easily the lines between personal and professional conduct can get blurred on social media. Employers must train their employees about what they may and may not disclose on social media. It is almost never proper for an employee to share medical information obtained at work on his or her personal social media account. The confidential nature of medical information needs to be emphasized especially when training employees who handle workers’ compensation claims, medical leave requests, billing for health services, FMLA claims, etc.

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“It’s my First Amendment right to say what I want!”  The First Amendment is commonly invoked to justify personal expression.  But did you know that the First Amendment applies only when the government is involved?  For example, the First Amendment wouldn’t prevent a private company from firing an employee for making offensive comments about the governor.  If the same employee worked for a government office, then the First Amendment might apply.  As a lawsuit recently filed against the County of Maui illustrates, the First Amendment adds a layer of complexity for public employers dealing with controversial social media activity of its employees.

The First Amendment Lawsuit Against Maui County

Neldon Mamuad is a volunteer Liquor Commissioner for Maui County and part-time aide to a Maui County Council member.  In July 2013, Mamuad started a Facebook fan page called “TAGUMAWatch,” named after a Maui police officer well-known for strict enforcement of parking and traffic violations.  The page was intended to enable Facebook users to post about “Taguma sightings” and share their thoughts about him.  TAGUMAWatch gained popularity quickly and evolved into a discussion forum on a variety of topics including news, traffic, and politics.

Mamuad claims that he didn’t publicize his involvement with TAGUMAWatch until a TV news story about the page named him as its creator.   Mamuad also didn’t identify himself as a County employee when posting to the page or suggest that he spoke for the County.

The County somehow linked Mamuad to the page.  Allegedly under pressure from the County, Mamuad changed the page’s name to MAUIWatch.  A few days later, Officer Taguma submitted a complaint to the County alleging harassment via the page.  After notifying Mamuad of the complaint and conducting an investigation, the County determined that Mamuad had engaged in harassment and cyber-bullying through social media and required him to enroll in an employee counseling program.

On March 3, 2014, Mamuad sued the County in federal court for violating his First Amendment rights.  As of the time of this post, Mamuad’s motion for a TRO was pending.

When Does Employee Discipline Violate the First Amendment?

Most forms of internet expression qualify as “speech” under the First Amendment.  That point has been driven home by recent legal developments,  including a court decision that Facebook “likes” are protected by the First Amendment, a Ninth Circuit opinion recognizing that bloggers have the same First Amendment protections as traditional journalists, dismissal of an appeal from the termination of a public school teacher, and a federal lawsuit filed by a gun rights group alleging that the Honolulu Police Department censored comments on its Facebook page.  Whenever the government is the one restricting speech, the First Amendment becomes relevant.

So how does a public employer know when it may discipline an employee for his or her social media conduct without violating the First Amendment?  The general test in the Ninth Circuit, as spelled out in Mamuad’s TRO motion, looks at these factors:

  1. Did the employee speak on a matter of public concern?
  2. Did the employee speak as a private citizen or public employee?
  3. Was the employee’s protected speech a substantial or motivating factor in the adverse employment action?
  4. Did the government have an adequate justification for treating the employee differently from other members of the general public?
  5. Would the government have taken the adverse employment action even absent the protected speech?

Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (en banc).  For a court to find that employee discipline violates the First Amendment, the first and third question must be answered in the affirmative, the fourth and fifth question answered in the negative, and for the second question, the employee must have spoken as a private citizen.  The employee also has the burden to prove the first three factors.  If the employee is successful, then the burden shifts to the government to prove the fourth and fifth factors.

Applying this test to employee social media conduct isn’t simple, but it helps government employers assess whether the First Amendment counsels against disciplinary action.

Links:

Complaint in the Mamuad lawsuit
Motion for TRO in Mamuad lawsuit (w/o attached declarations and exhibits)

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