Government Employers Can (and Should) Have a Social-Media Policy: Part 2

Posted by Molly DiBiancaOn September 20, 2011In: Social Media in the Workplace

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Yesterday, I promised to discuss the analysis that a court applies to determine whether a government employer has unlawfully retaliated against an employee in violation of the employee's right to free speech. As promised, the analysis is discussed below. In the next post in this series, I'll discuss the cases that have been applied to employee's off-duty, online, and social-media speech.

The Analysis
In order to establish a claim under the First Amendment, an employee must first show that the speech in question meets three requirements. First, the employee must demonstrate that his or her speech was made as a “citizen” in accordance with the U.S. Supreme Court’s decision, Garcetti v. Ceballos, 547 U.S. 410, 419 (2006). Second, the employee must show that the speech addressed a matter of “public concern. Third, the employee must show that his interest in the speech outweighs the employer’s countervailing interest in “promoting workplace efficiency and avoiding workplace disruption.”

If the employee successfully establishes each of these three elements, he must then prove that the speech was a “substantial or motivating factor” in the action taken against him by the employer. If he meets this burden, the burden then shifts to the employer to prove that the adverse action would have been taken absent the protected speech.

Because we are talking only about social-media policies, i.e., no employee is claiming that he has been disciplined for his speech, our analysis is limited to the first three steps, discussed above, which establish the test to determine whether speech is protected. If the speech that is restricted or prohibited in a policy is not protected speech, then the policy can be implemented without implicating the First Amendment. If the speech is protected, then the policy should be revised.

Step 1: Did the Employee Speak as a Citizen or as an Employee?
Speech made by an employee about matters relating to his employment is not protected by the Constitution. Thus, a government employer may discipline an employee who speaks (online or otherwise), about his or her job without triggering the protections of the First Amendment. So, the first question is whether the speech can be said to relate to the employee’s job.

Speech that is most easily classified as “employee speech” is speech that relates to the employee’s job responsibilities. For example, a teacher who posts complaints about the required curriculum is said to be speaking as an employee and receives no constitutional protection. On the other hand, a teacher who complains about increases in property taxes would be speaking as a citizen because taxes are unrelated to his job duties and he is, therefore, speaking as a citizen.

Step 2: Did the Speech Address a Matter of Public Concern?
If the employee can show that his speech was made in his capacity as a citizen and did not relate to his job duties or responsibilities as a government employee, then he proceeds to the second step of the analysis. Here, the employee must show that his speech addressed a matter of public concern.

In the hypothetical described above, taxes easily qualifies as a subject for public concern. On the other hand, it would be difficult to conclude that a matter for public concern is involved where a teacher who posts about the poor lunch selection offered in the teacher's lounge. Just for purposes of contrast, though, if the teacher's comments were about the poor nutritional content of lunches provided to the student body, a public concern may be at issue.

Step 3: Is the Employee’s Interest Outweighed by the Employer’s Interest in an Effective and Productive Workplace?
Speech that relates to a matter of public concern is next subject to what is known as the Pickering balancing test whereby the employee's interest in her speech is compared to the employer's interest in promoting wrokplace efficiency and avoiding workplace disruption. Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

The application of this balancing test is not a precise science. In some cases, this balancing test gives the employer a tremendous amount of leeway when considering whether it can discipline an employee for his or her speech. Some of the factors considered at this step is whether the speech impairs disciplien or control by supervisors; whether it disrupts co-worker relations or erods close working relationships based on personal loyalty or confidentiality; interferes with the speaker's performance of his or her job duties; or obstructs routine office operations.

It's this last step that gives employers the most protection--particularly in the context of a negative comment made by an employee on his or her Facebook profile. But for more about that, you'll have to tune in for the next post in the series. Stay tuned!!

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