By Traci Park and Kelly Trainer, Burke, Williams & Sorensen, LLP.
The impact of social media in the public workplace continues to raise questions more rapidly than courts can provide answers. As one question is answered, new legal issues and forms of social media emerge to raise new questions. Traci Park and Kelly Trainer, with the law firm of Burke, Williams & Sorensen, LLP, are aware of the questions arising in regard to social media. Here, they’ve worked to answer some of the most popular questions.
What kinds of things should be in my district’s social media policy?
Who should be included on a social media policy development team?
The policy development team should include human resources, IT, and a district’s legal professionals, with input from individual departments as appropriate.
If our district has a Facebook page and a citizen makes a negative comment about a board member, can we just delete the comment?
Removal of comments on social media pages will raise First Amendment issues for a public entity. It is entirely possible that such comments, even those critical of the district, are protected free speech. While there are some steps a district can take to limit the First Amendment protections afforded online speech, many districts have failed to put such policies in place.
Is the content on the district’s social media site subject to the Public Records Act?
The California courts have not yet applied the Public Records Act to social media content. However, there is a possibility that a court would find that content posted on a district’s social media site does not have a material impact on the conduct of official district business, is not necessary for the discharge of public duties, and is not made for the purpose of preserving informational content for the future. A district should include language stating the district’s position on whether such material will be retained in its policy.
Can a district have a policy regulating an employee’s own personal use of social media?
Yes. Among other provisions, the policy should remind and caution employees that information posted on a social media site is not private and may be used as evidence in administrative or legal proceedings, and any employee use of social media in a manner that violates district policies may be grounds for disciplinary action. However, districts have to carefully draft such policies to ensure they do not violate any laws, such as applicable labor relations statutes or the First Amendment.
Can we prohibit employees from accessing social media sites on district equipment?
Yes. A district’s own electronic communication devices, including computers, tablets, and smart phones, are the sole property of the district, and the district can regulate the use of such devices. Many employers have elected to block access to social media sites on employer-owned devices and networks.
Can I use social media to screen applicants?
While it is not strictly unlawful to use social media to screen applicants, there are significant legal risks in this practice. Managers are likely to gain information about protected characteristics, such as age, race, sexual orientation, or religion, which can form the basis of a discrimination lawsuit. Districts should also determine whether use of information obtained online, and outside the regular recruitment process, would violate internal rules and policies on recruitment. Districts should also remember that information obtained online is inherently unreliable.
Can I use social media evidence against an employee in disciplinary proceedings?
Such evidence is generally appropriate in disciplinary proceedings, but districts should consult with legal counsel as disciplinary proceedings are highly factual in nature.
Can I discipline an employee for comments he/she makes on social media?
It depends. Employee comments on social media can be entitled to protection under a number of laws, including the First Amendment, labor relations statutes, and whistleblower statutes. If the comments are protected, then an employee should not be disciplined for them. Whether the comments are entitled to protection is a fact-specific analysis regarding, among other things, the capacity in which the employee was speaking, the content and context of the speech, and the impact the speech had on the district. Find out more on this topic by visiting our website at www.csda.net.
Is information posted on a social media site private?
Most likely not. Even when privacy settings are in place, there is never a guarantee that anything someone posts online will be private or remain with an intended limited audience. Indeed, a theme being repeated in appellate decisions across the country is that users have no expectation of privacy in any social media website. To the contrary, many courts routinely conclude that using social media is the opposite of expecting privacy. According to one of the first decisions in California, no reasonable person who takes the affirmative act of posting information on a social media website has an expectation of privacy.