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Social Media in the Workplace
Mar 11, 2019


By:  Daniel Leffler, OPBA Attorney

Recently, I attended an FMCS seminar on labor arbitration.  One of the topics was on the pitfalls of the social media in the workplace which was moderated by the OPBA Special Counselor Michelle Sullivan.  The discussion covered employee discipline as a result of a wide range of circumstances that employees either actively participated in or were passively involved.  With the advent of modern technology, including Facebook, Twitter, YouTube and scores of other social media, the rules and regulations of the “pencil and paper” workplace are changing quickly and likely do not adequately address the new age.

We all know (but hopefully do not have personal experience with) the employer’s catch-all rule “Conduct Unbecoming.”  The rule is often applied in off-duty situations.  Well what does that mean?  The regulation cannot be simply defined and really depends on each case-by-case situation, but the employer “knows it when he sees it.”  The arbitration standard used to be that management’s right to discipline an employee for off-duty conduct, “depends upon the effect of that conduct upon the [employer’s] operation.” Elkouri and Elkouri, How Arbitration Works, 5th Ed., p. 896.  Arbitrators have also stressed that the effect of the activity on the operations must be reasonably discernable and not just speculative.  A classic example of this rule applied prior to modern social media is the DUI situation.  The employee was off duty, the conduct was in no way linked or related to the employee’s job and there was no damage other than to the employee’s driving record.  For the employee in the private sector (other than CDL holders) there is probably not any discernable effect on the employer’s operation.  However, police officers are subject to a higher standard, are employed to uphold the law and are required, at some time, to testify about a DUI arrest.  Having a criminal record has been argued by the employer to have a detrimental effect on the officer’s testimony in future cases.  Thus, the employer attempts to establish the nexus between the off-duty conduct and the employer’s operation.

So what has changed?  People, and most people are also employees, can now log onto chat rooms, blogs, Facebook, Twitter, or can post pictures, videos and any other form of media or communication just about anywhere through the internet.  What used to be gossip around the roll call room or “bitch sessions” over the phone are now open to the world and usually memorialized in the memory of some computer.  Trust me, this stuff gets back to the boss.  One of the most prominent early examples of discipline as a result of “modern” technology was in 1999. (I say “modern” because inevitably someone will call and say, “in 1985 I was written up for using my cell phone on duty.”)  Employees of Raytheon were commenting over a public chat room about the new labor contract, company finances and company operations.  Raytheon filed a lawsuit against AOL and Yahoo! to disclose the identities of the posters.  The company discovered, through other means, the names of the employees and terminated them.  The lawsuit was later dismissed.

Here is a scenario: The Police Dept. has the Standard Rules and Regulations of Disciplinary Offenses: 1) Prohibiting disparaging or disrespectful comments about the public, supervisors, the chief, or the employer; 2) Prohibiting any act which brings discredit to the Department, and 3) Conduct unbecoming.  Officer X posts on his Facebook page that, “the Chief doesn’t know his head from a hole in the ground.  I can’t believe he’s friends with those criminals.”  Officer X’s Facebook page is designated “Friends Only” and the comment was posted in a string to a non-police department friend.  The Employer suspends Officer X for 10 days.  Is the discipline for cause?  In some recent cases, arbitrators have upheld discipline for employees posting comments or pictures on the internet.[i]

One aspect of social communication that all employees should be aware of relates to department issued cell phones or email accounts.  DO NOT use those accounts for anything other than work purposes even if the employer has a permitted personal use policy.  In a recent United States Supreme Court case, the Court held that a warrantless search of a police officer’s text messages on a department issued pager was permissible. City of Ontario v. Quon, 130 S. Ct. 2619 (U.S. 2010).[ii]  The Court found, “when conducted for a ‘non-investigatory, work-related purpos[e]’ or for the ‘investigatio[n] of work-related misconduct,’ a government employer’s warrantless search is reasonable if it is justified at its inception and if the measures adopted are reasonably related to the objectives of the search.” Id., at 2630.

All of these circumstances raise First Amendment issues which may or may not exonerate the disciplined employee.  That analysis is saved for another day.  However, if employees are going to email, post, comment, blog or share photos and videos on the internet, be aware of the potential pitfalls.  Don’t use the department email, pagers or cell phones to send non-work related, disparaging or questionable content.  If you must have a Facebook page, make your Facebook page a private page only.  Don’t post pictures of yourself smoking marijuana. These are easy solutions.  But be aware that seemingly innocuous postings can have dire consequences.

[i] 2004 AAA LEXIS 500 (AAA 2004, Sperka)
Grievant, police officer, was issued a 10-day suspension for Grievant’s website which contained some comments, including:

NEW! Director of Public Safety & Police disciplines Grievant for reporting convicted felon and Department of Public Works Superintendent’s illegal activities to Emergency Financial Manager & the City council (more)

NEW! Director of Public Safety & Police recently reversed one of his earlier lies about police staffing, but in the process: a) lies again or b) has no idea about staffing levels in the departments he is supposed to be effectively running. You decide (more)

NEW! The power generator that was used for the police department during times of emergency is missing. Do you know where your tax owned property is? Do your City officials? (more)

NEW! Department of Public Works Superintendent neglects his duty, has City employees working on his house on company time, and is discovered to be a currently convicted felon on probation (more)

NEW! Employer Hypocrite and City Controller City Controller and Deputy Financial Manager declare layoffs are coming without union concessions but gladly accepts a $ 10,000 raise over the last two years (more)”

2010 AAA LEXIS 559 (AAA 2010, Lowe)
The Arbitrator reduced a termination to a 30 day suspension for the following: On one Facebook page was a picture of what appeared to be the Nursing Station in the Emergency Department with a splay of hundred dollar bills across the table with a notation underneath the picture, “THE THINGS YOU FIND ON YOUR PATIENTS WITH NO JOBS. . . LOL.” Then, on another Facebook page was a comment, “City general can GFY!!!” The Arbitrator held, “The grievance was sustained in part and denied in part. Just cause does not exist for the Grievant’s termination, but does exist for the imposition of a thirty (30) calendar-day suspension.”

2008 AAA LEXIS 889  (AAA 2008, Siegel)

A grievance filed by the Union on March 23, 2007 challenging the discipline of two security officers employed by the University. Both officers were disciplined for certain listings on their personal web pages.  In the case, the issue consists of three (3) pages. The first page of the three is what appears to be a Website title page for Officer A and shows only a small frontal face photo of him with the words alongside, “City Staff — Criminal Justice”. The second page of the Exhibit however, is listed as being part of Officer B’s webpages and is labeled as “page 2 of 4”. It shows a photo of a uniformed officer sitting at a desk with his legs and feet up on it. In addition, this webpage lists Officer B’s employer as the “University”, and his job position as “Public Safety Officer.” The third page shows Officer A in uniform with what appears to be in his hand a flashlight shining on two young women looking distressed. Officer A is specifically identified under the photo with the names of the two women. The Arbitrator found the University had just cause when it disciplined Officer A and B.

[ii] When officers exceeded their monthly character limits for several months running, OPD’s chief, sought to determine whether the existing limit was too low, i.e., whether the officers had to pay fees for sending work-related messages or, conversely, whether the overages were for personal messages. After Arch Wireless provided transcripts of the officers’ August and September 2002 text messages, it was discovered that many of the messages were not work related, and some were sexually explicit. The officers were disciplined for violating OPD rules.  The Court reasoned that even if Quon had a reasonable expectation of privacy in his text messages, the City did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. Although as a general matter, warrantless searches “are per se unreasonable under the Fourth Amendment,” there are “a few specifically established and well-delineated exceptions” to that general rule. City of Ontario v. Quon, 130 S. Ct. 2619, at 2625-26; citing Katz, supra, at 357, 88 S. Ct. 507, 19 L. Ed. 2d 576. The Court has held that the “‘special needs'” of the workplace justify one such exception. O’Connor, 480 U.S., at 725, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (plurality opinion); id., at 732, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (SCALIA , J., concurring in judgment); Von Raab, 489 U.S., at 666-667, 109 S. Ct. 1384, 103 L. Ed. 2d 685.

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