Social Media and the Local Government Employer:

#complicated

Timothy M. Boughey

Elarbee, Thompson, Sapp, & Wilson, LLP

Overview

I. Background

II. Risks Associated with Social Media in the Workplace

III. Managing Risks via a Social Media Policy

IV. Employer Use of Social Media to Forward Mission and Engage with the Public

V. Integration with Existing Policies and Procedures

I. What is Social Media and why should I Care as a Local Government Employer?

What is Social Media?

• Social Media: Term Used to Describe the Variety of Web-Based Technologies That Enable People to Socially Interact Online

• Often Referred to as “Web 2.0”

– Web 2.0 is the collection of websites “that get their value from the actions of users.”

• Hundreds of Access Points, including “Personal Technology Devices”

– Easily and instantaneously share of information, pictures, videos, news articles, etc.

Web 2.0

• Web 2.0 Technologies:–Blogging –Wikis– Social Networking–Photo Sharing– Twitter–Discussion Groups–Communities –Podcasts– Tags –RSS Feeds

What is Personal Technology?

• Broad definition can include:

–Literally any piece of technology that a person can bring into the workplace

•Eyewear that Operates Computer Applications or “Apps” or live streams video or audio to Web 2.0 platforms

•Wristwear (Apple Watch, Fitbit, etc.)

•Smartphones

• Personal Technology is one way to access and engage on social media

Who Actually Uses Social Media?

• As of March 2017, 1.95 billion people use Facebook

– 1.2 Billion people use the Facebook Messenger ”App” at least once every month

• Every second, around 6,000 tweets are tweeted on Twitter, over 350,000 tweets sent per minute, 500 million tweets per day and around 200 billion tweets per year

• 700 Million Instagram users

• Almost 5 billion videos are watched on YouTube every single day. In an average month, 8 out of 10 18-49 year-olds watch YouTube.

• 75 percent of employees access social media daily on the job, with 60 percent doing it multiple times per day

• Studies show that, on average, employees spend about one to two hours a day using the Internet for personal use

Why is this Important?

• Employees can be highly distracted in the Workplace

• Notice to Employees of How Information Stored on Personal Devices will be treated at termination/retirement/etc.

• Regulate Conduct

• Prevent complaints of Discrimination

• Place employees on notice that social media harassment, discrimination, and retaliation still violates policy

• Limit Confusion

Employer Response to Social Media

• 36% monitor employee use of social media

• 25% use social media to conduct background checks

• 40% block employee access to social media

• 26% encourage employees to use social media for

work-related purposes

• 69% do not have a social media policy

II. What Risks can be Associated with Social Media in the Workplace?

HIGH RISK AREAS

• Wage and Hour

• Retaliation / Whistleblower Liability

• Harassment Liability

• Negligent Hiring / Retention Liability

• Discrimination Liability

FLSA / OVERTIME LIABILITY

• Off-Duty Use of Social Media for Benefit of Government Employer

–Potential Liability to Non-Exempt (Hourly) Employees Only

• Must Be Paid for All Time Worked

• Can Discipline, But Cannot Deny Pay

Constitutional Liability

• Equal Protection Clause / 14th

Amendment

• First Amendment

• Fourth Amendment

FIRST AMENDMENT

• Employee as Citizen:

–Public employees retain their identity as citizens and do not surrender all rights under Free Speech Clause by virtue of government employment.

• Local Gov’t as Employer:

–Local Gov’ts retain their identity as employers and have a legitimate interest in promoting the efficiency of public services it provides through its employees.

–Local Gov’ts must be permitted to take action against employees who act against this interest.

THE COMPETING INTERESTS FRAME THE ANALYSIS

• Does the local gov’t employer’s interest in the effective and efficient fulfillment of its responsibilities to the public outweigh the employee’s interest in engaging in the speech in question?

• Did the employee’s overall conduct include non-speech or speech not on a matter of public concern?

Factors to Consider• Did the conduct disrupt (or threaten to disrupt)

important working relationships?

• Did the conduct interfere (or threaten to interfere) with internal operations?

• Did the conduct undermine (or threaten to undermine) leadership’s authority?

• Did the conduct have the potential to create disrespect for leadership?

• Did the conduct cause (or threaten to cause) any internal disciplinary problems?

• Did the conduct affect (or threaten to affect) morale?

• Did the conduct damage (or threaten to damage) the view of the employer in the public eye?

Paramilitary Organizations

• A heightened need for order, loyalty, and harmony in quasi-military organization

–Does the speech interfere with confidentiality of department?

–Does the speech undermine the chain of command?

–Does the speech strain critical relationships that could impact public safety?

Fourth Amendment

• Reasonable expectation of privacy• Policy should reduce expectations of

privacy• Require Consent before Allowing a

Personal Device • An employer's intrusion “for non-

investigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.”

RETALIATION / WHISTLEBLOWER LIABILITY

• State whistleblower protection laws

–Fraud, abuse, or waste involving public funds

–Violation of / non-compliance with law, rule, or regulation

RETALIATION

• Title VII / ADEA / ADA

–Participation (absolute protection)

–Opposition (qualified protection)

Harassment

• Title VII / ADEA / ADA / USERRA

• Equal Protection Clause / 14th

Amendment

• City/County Must Address:

– Even if off-duty; and

– Even if off-site.

Negligent Hiring or Retention

• Enhanced Liability Where Simple

Google Search Would Have

Revealed Unfitness

– E.g., threats, racist/sexist comments,

drug use or other illegal activity

• Law Requires Juries to Second-

Guess Hiring & Retention Decisions

Confidentiality Issues

• Medical Information

–HIPAA

–ADA

• Bid Information

• Real Estate Transactions

• Attorney-Client Communications

• Executive Session

Copyright Issues

• Posting Text, Audio, Video, or

Images Created By a Third Party

– Without permission, without attribution

• Fair Use Exception

– For purposes of criticism, comment,

news reporting, education

Record Retention

• Federal Retention Requirements

–Title VII / ADEA / ADA / FLSA

• State Retention Requirements

–Retention schedules

–FOIA / sunshine laws

• Spoliation / Adverse Inference

(Poor) Use in Hiring Practices

• Enhanced Liability Where Same

Google Search Reveals Protected

Status

– E.g., disability or association with a

disabled person, prior EEOC charge,

pregnant, bi-racial marriage, or group

association (political party, tea party

movement, immigration reform activist,

etc.)

(Effective) Use in Hiring Practices

• Have non-decision maker conduct search, filtering out protected class information

• Hiring decision must be supported by:

–legitimate, non-discriminatory reason(s) and

–Documentation

(Effective) Use in Hiring Practices

• Screen applicants in a uniform manner:

–Create list of social media sites that will be

searched for each applicant

–Create list of lawful information about

applicants desired from every search

–Screen all applicants (or a non-discriminatory

subset) using that lawful criteria

–Don’t “friend” applicants to gain access to

non-public social networking profiles

III. How can Risks be Effectively Managed via a Social Media Policy?

Questionable Policies and Practices: “Reserving Right to…”

• Require, demand, or force an employee to provide password/log-in information for personal accounts

• Use an employee’s log-in credentials – with or without “permission”

• Force an Employee to “friend” or link personal social media account information to supervisor/co-employee/etc.

• Prohibit social media activities on: – employee’s off-duty time

– personal device(s) (phone, tablet, etc.)

• Shut Down Employee’s Personal Social Media Account(s)

Do Reserve Right to…

• Reserve Right to Monitor Social

Media Activities

– Obtain acknowledgment

– Disclaim privacy

– Monitor uniformly and consistently

Effective Social Media Policy

• Notice: employees have right to engage in social media activities; do so at own risk

• Improper use of social media can lead to disciplinary action

– Workplace harassment, conduct unbecoming / damaging public confidence, etc.

Effective Social Media Policy

• Place Employees on Notice That

Social Media Activities Will Be More

Closely Scrutinized If They Identify

Themselves As City Employees

– Will be treated as if done on the job;

– Will be evaluated for compliance with

other City policies

Effective Social Media Policy

• Employer should periodically:

• Train All Employees

• Review and Update Policy

IV. How Can a Local Government Employer Use Social Media to Forward Mission and Engage with the Public?

Define Use

• Who Owns the Website, Blog, Etc.?

– Employee who started it years ago?

– Or the government?

• Issue Should Be Addressed &

Resolved During Employment

Relationship

Who Can Post on Behalf of Government Employer?

• Notice: employees have no authority

to speak for City - Personal capacity

only;

–Employee will bear consequences

alone;

–City reserves the right to pursue

indemnification/contribution claim

against employee if sued.

How Can a Local Government Use Social Media?

• Announce Events

• Advertise or Post Job Openings

• Foster Relationships with the Community

–Community Outreach

• Post Information

–Emergency Alerts

• Promote Services

• Proactively Share Stories

–Current Issues, Projects, Successes, etc.

Employees Should Not Post About:

• Matters in Litigation or Pending Litigation

• Nonpublic Information

• Illegal or Banned Substances

• Pornography or other illegal, offensive matters

• Defamatory, Libelous, Offensive, or Demeaning Material

• Disparaging or Threatening Matters

• Personnel, Confidential, Personal or other Sensitive Matters

Other Challenges to Consider

• Information Security Risk

• Device becomes lost or stolen

–Address if Employee needs to Report a lost or stolen device to a supervisor or HR

• Malware, virus, etc.

• Security Breaches

Questions and Answers

• For questions about the HR Express Program, contact: Aileen Harris

Training Manager

(678)-686-6293

• For questions relating to this webinar, contact:Elarbee Thompson’s Public Sector Group

(404) 659-6700

www.PublicEmploymentLaw.com