The Supreme Court’s 1968 decision in Pickering v. Board of Education allows governmental employers, including law enforcement agencies, to fire or discipline employees for disrupting operations with excessive complaining, but it prohibits governmental employers from firing or disciplining an employee for speaking out on matters of public concern as a private citizen if the employee’s interest in speaking outweighs the agency’s interest in maintaining efficiency. While the line between disruptively complaining and responsibly speaking out may be clear enough in theory, however, it is often difficult to draw in practice, particularly when the employees in question work in law enforcement. The most recent case to dive into this thicket is Graziosi v. City of Greenville, from the Northern District of Mississippi.

We previously discussed the First Amendment rights of law enforcement personnel in connection with the Eleventh Circuit case Gresham v. City of Atlanta. In Gresham, the plaintiff was passed over for a promotion after making a Facebook post critical of what she saw as obstruction of justice by a fellow officer.  The court held that the plaintiff had spoken on a matter of public concern, but that her interest in speaking did not outweigh the government’s interest in promoting efficiency.  The key point was that the plaintiff had configured her Facebook post to be viewable only by her friends, which indicated that her post was not “calculated to bring an issue of public concern to the attention of persons with authority to make corrections . . . the context was more nearly one of Plaintiff’s venting her frustration with her superiors.”

The decision in Graziosi deals with the same elusive line between mere complaining on the one hand, and alerting the public to important information about the operations of government agencies on the other.  A member of the Greenville Police Department, Sergeant Graziosi, made a series of public Facebook posts criticizing the chief of police for failing to send a representative to the funeral of a fellow officer.  Graziosi posted these complaints first as her own Facebook status update, and then posted them on the campaign page of the local mayor.  The chief of police fired Graziosi for making the posts, which the chief of police contended violated several internal police department policies that forbid public criticism and excessive complaining by officers.  Graziosi filed a lawsuit alleging that her termination violated the First Amendment.

One pivotal issue in the case was whether the criticisms Graziosi posted on Facebook qualified as speaking out on a matter of public concern as a private citizen.  Graziosi argued that a decision about whether or not to send police officers to a funeral is inherently a matter of public concern because it involves the spending of public funds.  However, the court noted that if anything that involved spending funds was a matter of public concern, then “almost anything” would satisfy that requirement of the Pickering test.  Instead, the court looked to the primary motivation for speaking.  The court determined that “Graziosi’s comments to the Mayor, although on a sensitive subject, were more related to her own frustration of Chief Cannon’s decision not to send officers to the funeral and were not made to expose unlawful conduct within the Greenville Police Department.  Her posts were not intended to help the public actually evaluate the performance of the GPD.”  The court found that Graziosi was speaking out about a matter that was primarily internal to the police department, and hence, she was speaking not as a citizen, but as an employee, and not on a matter of public concern, but on a matter of personal concern.  Therefore, her comments did not pass the threshold requirement of the Pickering test.

This decision is similar to the decision in Gresham, but differs in important ways.  In both cases, the complaints that a law enforcement officer posted on Facebook were denied First Amendment protection because those complaints were more fairly described as venting frustrations than as attempts to get important information to the public.  In both cases, the court found that although the topic of the speech was of at least some concern to the public, the speaker was primarily motivated by a desire to vent frustration.  In Gresham, the court made this determination by considering the audience that the plaintiff spoke to; in Graziosi, the court made this determination by considering what the plaintiff spoke about.  However, the courts applied the determination that the speaker was motivated primarily by a desire to vent at different steps in the analysis.  In Gresham, the court found that the plaintiff’s interest in complaining was less weighty than the interest of the police department in preserving efficiency.  However, in Graziosi, the court found that the plaintiff’s primary purpose of venting personal grievances defeated her claim before the weighing stage was even reached.  Because the plaintiff’s intent was primarily to vent frustration, she was not speaking as a private citizen or speaking on a matter of public concern, and hence would not have been eligible for First Amendment protection even if her interest had outweighed the interest of the police department.

Viewed in the light of recent high profile situations involving governmental employees speaking out about matters of public concern contrary to applicable governmental policies, such as the leaks by Edward Snowden and Chelsea (formerly Bradley) Manning, clarifying the rules in this area is more important than ever.  And the fact that so much of the relevant communication now takes place in the diverse and always-changing world of social media only increases the complexity of the issues.  As a result, we can expect that the courts will continue to develop the law in this area for many years, but the outline of how the First Amendment applies to governmental employees using social media is at least beginning to take shape.

On September 27, 2012, California Governor Jerry Brown signed a bill that restricts employer access to the “personal social media” of employees and applicants for employment.

Assembly Bill 1844 (“AB 1844”) adds to the California Labor Code new section 980.  Under this section, an employer may not “require or request” an employee or applicant to do any of the following:

  • Disclose a username or password for the purpose of accessing personal social media;
  • Access personal social media in the employer’s presence; or
  • Divulge any personal social media, except in connection with the investigation of allegations of an employee’s misconduct or violation of applicable laws.

The exception for employee investigations applies if the employer reasonably believes that the personal social media is relevant to the investigation or to a related proceeding, and does not use the personal social media for any other purpose.

AB 1844 does not preclude an employer from requiring or requesting an employee “to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.”

AB 1844 expressly prohibits retaliation against an employee or applicant who declines to comply with a request that violates the terms of AB 1844, but it does not immunize the individual from any adverse action that is otherwise permitted by law.

Notably, the state Labor Commissioner is not required to investigate or determine violations of AB 1844.

AB 1844, which passed in both the California Senate and Assembly by wide margins, is similar to recently enacted laws in Delaware, Maryland, and Illinois.  During this legislative season, at least 13 states have proposed legislation restricting employer access to employee social media accounts, including Massachusetts, Michigan, Minnesota, New Jersey, New York, Ohio, Pennsylvania, South Carolina, and Washington.

With the issuance of its third guidance document on workplace social media policies in the past year, the National Labor Relations Board (NLRB) continues to refine its position on how to craft workplace social media policies that are consistent with the terms of the National Labor Relations Act (NLRA).

Section 7 of the NLRA provides employees with the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  This right applies regardless of whether the employees are members of a labor union.  The NLRB’s guidance on this subject suggests that employee social media policies that discourage the exercise of these rights may run afoul of the NLRA.

The NLRB’s third memorandum, issued by Acting General Counsel Lafe Solomon, analyzes in detail seven different social media policies at issue in recent cases before the NLRB.  Six of these policies were found by the NLRB to contain provisions that are contrary to the NLRA, while the seventh “revised” policy was upheld in its entirety as lawful.  The NLRB specifically questioned the breadth of the following types of provisions, many of which are commonly found in social media policies:

  • Prohibitions on the disclosure of confidential or “non-public” information, or of matters concerning individual privacy rights, via social media. Instructions not to reveal non-public information may be unenforceable as applied to discussions about, or criticism of, the employer’s labor policies and its treatment of employees. The NLRB noted such a tension in policy requiring social media users not to “reveal non-public company information on any public site,” where the explanation of non-public company information did not include appropriate carve-outs for activities protected under Section 7.
  • Prohibitions on the disclosure of an individual’s personal information via social media.  The NLRB took issue with a social media policy instructing employees: “[D]on’t disclose [personal information regarding employees and other third parties] in any way via social media or other online activities.” As the NLRB explained, “[I]n the absence of clarification, employees would reasonably construe it to include information about employee wages and their working conditions.”
  • Discouragements of the “friending” of one’s co-workers.  According to the third memorandum, a policy statement advising employees to “think carefully about ‘friending’ other co-workers” could be construed as unlawfully discouraging employees from communicating regarding the terms of their employment.
  • Requirements that employee grievances be addressed through internal procedures, rather than aired online.  A social media policy providing the employer “believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet” was found to be unlawful, according to the NLRB, because it might inhibit employees from “seeking redress through alternative forums.” The NLRB noted, however, that employers may “reasonably suggest” availing of internal dispute resolution procedures.
  • Prohibitions on the sending of unsolicited communications to other employees. The NLRB found a policy requiring employees to report receiving “unsolicited or inappropriate electronic communications” to be an impermissible restraint on employees’ right to discuss their employment conditions.
  • Restrictions on public discussions of personal opinions regarding work.  One policy discussed in the memorandum expressly permitted employees to discuss online their personal opinions about work-related issues, but only to other employees and not to the general public. The NLRB found this overbroad because the right to discuss employment conditions extends to discussions with non-employees.
  • Prohibitions on comments regarding pending legal matters.  A policy providing, “Don’t comment on any legal matters, including pending litigation or disputes,” was found to be unlawful on the basis that it “restricts employees from discussing the protected subject of potential claims” against their employer.
  • Prohibitions on responding to government inquiries.  The NLRB found that one employer’s direction to employees not to respond to communications from government agencies was overbroad “to the extent that it restricts employees from their protected right to converse with [NLRB] agents or otherwise concertedly seek the help of government agencies regarding working conditions, or respond to inquiries from government agencies regarding the same.”
  • Requirements that employees check with the legal department or human resources (HR) department prior to posting or communicating with the media.  Requiring employees to secure permission from their employer before engaging in activities protected under Section 7, the memorandum noted, is prohibited by the NLRA.

Analyzing employer social media policies under the NLRA continues to be major enforcement priority of the NLRB, although the NLRB’s position on social media policies remains, for the most part, untested by the courts.  The third memorandum underscores how the precise wording of the policy is critical to whether it is considered overbroad by the NLRB.  Social media policies that distinguish between the prohibited behavior and concerted activities excluded by the policy, and that provide examples of each, would be more likely to withstand NLRB scrutiny.  By contrast, the third memorandum cautions employers against relying on a so-called “savings clause” (such as a general statement that the policy will not be interpreted in a manner inconsistent with the NLRA) if “employees would not understand from this disclaimer that protected activities are in fact permitted.”

Alongside its long list of examples of potentially unlawful policy language, the third memorandum provides one example of a social media policy that it considered lawful.  Although this exemplar, which is attached to the NLRB memorandum in full, will not meet the needs of all employers, it may serve useful as a resource against which to compare your company’s social media policy.  As the NLRB’s position on this subject evolves, we suggest consulting counsel to address whether specific provisions of your company’s social media policy are consistent with the NLRB’s guidance.

On August 18, 2011, the National Labor Relations Board’s (“NLRB”) Office of the General Counsel released a report discussing the outcome of fourteen cases that its Division of Advice has investigated this year involving social media use in the employment context.  While the report does not reflect actual decisions of the NLRB, it does indicate the thinking of the NLRB’s Chief Attorney, who sets guidelines for what cases will be presented to the NLRB for litigation and decision.  In releasing the report, Acting General Counsel Lafe Solomon stated, “I hope that this report will be of assistance to practitioners and human resource professionals.”

In furtherance of Solomon’s goal, we have identified the major takeaways of this report, which can be divided into two categories:

First, when does employee social media use rise to the level of concerted activity that falls under the protection of the National Labor Relations Act (“NLRA”)?  The various decisions chronicled in the report provide some guidelines.  To begin, social media use is more likely to qualify as protected concerted activity where the employee discusses the terms and conditions of his or her employment in a manner that is meant to induce or further group action.  The General Counsel appears more inclined to characterize social media use in this fashion when it either is directed to fellow co-workers, or grows out of an earlier discussion about terms and conditions of employment among co-workers.

On the other hand, employee social media use is unlikely to rise to the level of protected concerted activity where it is best characterized as an individual complaint about working conditions specific to the employee, and is not directed to co-workers or meant to induce group action.

The report also suggests that employee comments that are “maliciously false,” a seemingly high standard, will not be protected under the NLRA and that offensive or inappropriate comments about an employer’s clients are also unlikely to be protected.

Second, where will the General Counsel draw the line between a valid and invalid employer social media policy?  The report suggests that social media policies will be found to be invalid where they would effectively prohibit employees from engaging in protected activity.  For example, the General Counsel found a social media policy to be overbroad where it prohibited “inappropriate discussions” about the company, its management, or its employees because this prohibition encompassed protected concerted activity.

Employers should not only avoid such overbroad prohibitions, but should also consider including a disclaimer in their social media policies specifically indicating that none of the prohibitions contained therein should be interpreted to interfere with employee rights under the NLRA.

At the end of the day, situations must always be examined on a case-by-case basis.  However, as the General Counsel investigates more cases and continues to issue guidance, and as the NLRB issues case decisions, the law in this area will quickly develop and produce more tangible guidelines for employers to consider.

The National Labor Relations Board (“NLRB”) remains vigilant regarding the interaction between social media and the workplace, and has continued to focus on the impact of restrictive social media policies on employee rights under the National Labor Relations Act (“NLRA”).  In an effort to issue uniform guidance on this emerging issue, all NLRB regional offices are now required to submit social media disputes to the NLRB’s Division of Advice before taking any action.  Specifically, the regional offices are required to submit for review all “cases involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter.”

Already, on April 21, 2011, the NLRB General Counsel published an Advice Memorandum regarding a social media complaint.  The case at issue involved an employee of The Arizona Daily Star (the “Daily Star”) who was terminated for posting “inappropriate and offensive” Tweets to a work-related Twitter account.  For example, the employee made the following posts:

“The Arizona Daily Star’s copy editors are the most witty and creative people in the world.  Or at least they think they are.”

“You stay homicidal, Tucson.
See Star Net for the bloody deets.”

“WHAT?!?!? No overnight homicide?
WTF? You’re slacking Tucson.”

The NLRB General Counsel centered his decision on whether these Tweets qualified as “protected, concerted activity,” and reasoned that they did not because the Tweets “did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.” Accordingly, the General Counsel concluded that the employee’s discharge did not run counter to the NLRA and declined to issue a complaint against the Daily Star.

In another social media case, the NLRB Regional Director in Buffalo, New York reached the opposite conclusion in a case involving a nonprofit organization.  Hispanics United, a group helping low-income Latinos, terminated five employees after they went on Facebook to criticize their working conditions.  Unlike the Tweets in Daily Star case, the comments posted on Facebook related to terms and conditions of employment, and the NLRB issued a complaint against the employer.  Trial in the Hispanics United case is expected to begin soon.

These cases illustrate the scrutiny that the NLRB is giving employer actions involving social media.  As the law continues to develop in this area, employers should review their current social media policies, consider revising overly broad restrictions and, as always, exercise caution before taking an adverse employment action against employees for their social media use.