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Social Media Policies: What Can and Can’t an Employer Prohibit?

Published in the December, 2019 issue of the PELRAS newsletter

Published on: Fri 13th Dec, 2019 By: Hobart J. Webster

Can a government employer discipline a public employee because of their social media post? The answer to this question is that famous lawyerly phrase, it depends. Luckily, three U.S. Supreme Court can help us answer that question: Pickering v. Board of Education, 391 U.S. 563 (1968), Connick v. Myers, 461 U.S. 138 (1983), and Garcetti v. Ceballos, 547 U.S. 410 (2006).

Pickering remains the Supreme Court’s seminal case on the First Amendment rights of public employees. Pickering established the principle that public employees do not relinquish their right to speak on matters of public importance, or “public concern,” simply because they have accepted government employment. In Pickering, school board officials terminated high school science teacher Marvin Pickering for writing a letter to the editor critical of the school board’s allocation of funds. He wrote, “To sod football fields on borrowed money and then not be able to pay teachers’ salaries is getting the cart before the horse.”

In its decision, the Supreme Court rejected the school board’s argument that public employees relinquish their constitutional rights when accepting government employment. “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employers.” Id, at 568.

The Supreme Court explained that the subject matter of Pickering’s letter — money spent by the school board on athletics and academics — was a matter of public concern and thus entitled to protection. See also, Baldassare v. New Jersey, 250 F.3d 188, 195 (3d Cir.2001) (“A public employee’s speech involves a matter of public concern if it can be fairly considered as relating to any matter of political, social or other concern to the community.”) The Supreme Court then conducted a balancing test to determine whether Pickering’s free speech rights outweighed the school board’s interests in a disruption-free workplace, and found in Pickering’s favor.

In Connick, New Orleans assistant district attorney, Shelia Myers, objected to being transferred to another section of her office. After receiving notice of the transfer, she prepared and distributed a questionnaire to the office staff that, in part, questioned whether their office was poorly run. District Attorney, Harry Connick Sr., (yes, it’s the musician’s father), terminated her for refusing the transfer and for undermining his authority with the questionnaire. Myers challenged her dismissal, arguing that she was fired because she had expressed her opinion of how Connick ran the office and that such a termination violated her First Amendment rights.

The Supreme Court held that Myers’s dismissal was constitutional. The Supreme Court applied the two prong Pickering test to determine whether Myers’ First Amendment rights were violated. In applying the first prong, the Supreme Court held that Myers was primarily speaking about matters that were not of public concern, because her questionnaire focused almost exclusively on the internal workings of the district attorney’s office. Essentially, the Supreme Court held that only one question — whether Connick forced office staff to perform political campaign work — was a public concern. The remaining questions were considered to be non-public concerns about the internal operations of the government functioning as an employer.

Applying the second prong, the Supreme Court concluded that Myers’s questionnaire had the potential to hinder the efficient operation of the district attorney’s office by questioning Connick’s authority. In addition, because Myers circulated the survey as a reaction to receiving an unfavorable assignment, the Supreme Court held that Connick had legitimate reasons to fire her.
In Garcetti, the Supreme Court ruled that public employees do not have First Amendment protection for speech made as part of their official duties. In Garcetti, California prosecutor, Richard Ceballos, alleged that his employer had retaliated against him after he criticized the handling of a search warrant affidavit that he believed contained untruthful statements. Ceballos claimed that his transfer was a direct result of his critical speech in the memo, his testimony at a court hearing, and a speech he gave at a conference.

The federal district court ruled that Ceballos had no First Amendment claim for speech delivered in the memo prepared as part of his routine job duties. The Ninth Circuit Court of Appeals reversed, determining that Ceballos’s memo concerning lack of veracity by law enforcement officials constituted speech on a matter of public concern within the meaning of Pickering. The U.S. Supreme Court, however, reversed the Ninth Circuit, and held that, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

Synthesizing Garcetti with Pickering and Connick, the Supreme Court has given us a useful three-part test to help us determine whether a public employer can discipline a public employee for their social media post. 1) Was the social media post at issue made pursuant to the employee’s official duties as a government employee or in the employee’s capacity as a private citizen?; 2) Did the employee’s post address a matter of larger societal significance or importance?; and 3) Does the employee’s social media post materially harm the government employer’s interests in an efficient, disruption-free workplace?

Finally, employers must also be aware that portions of the National Labor Relation Act (“NLRA”) and the Pennsylvania Labor Relations Act (“PLRA”) may also impact whether an employer can discipline an employee for their social media posts. Even if the employee is not in a union, these protections may apply to union organizing efforts. Section 7 of the NLRA protects employees’ rights to engage in “concerted activities” that are for “mutual aid and protection”, and the National Labor Relations Board has expressly held that this provision applies to social media posts. For example, where employees discuss working terms or conditions via social media, those discussions are in most circumstances protected under the PLRA or NLRA.

Employers should have a carefully drafted social media policy in place that takes into account employees’ limited rights to speak as a private citizen on a matter of public concern, as well as the right to engage in “concerted activity” for “mutual aid and protection”, but which also prohibits employees from violating other policies, such as anti-harassment, discrimination and workplace violence policies. As always, before taking action because of an employee’s social media activity, consult labor counsel.