THINK BEFORE YOU POST
February 26, 2013
By Audrey Fraizer
A police dispatcher posted derogatory comments on Facebook about the police department following an incident of mistaken identity she said resulted in the death of her nephew.1 In a situation involving an emergency services employee working for a private ambulance company, an EMT posted disparaging remarks about her boss and then traded Facebook messages she received in response with other employees.2
Although in some ways the social networkers might have done everything right— the Facebook pages were private and the initial postings did not occur during scheduled work time—the comments resulted in unintended consequences, at least for the employees.
They were both fired.
“Everything we do reflects upon our profession,” said Priority Dispatch Corp. (PDC) Consultant Ross Rutschman during the NAVIGATOR 2012 social media presentation How To Get Fired on Facebook. “What happens when the media picks something up? Should First Amendment rights come into play when we make a blunder on Facebook that might affect our agencies?”
Protection under the law
Like it or not, free speech protections are at best nebulous when it comes to job security in the public sector and social media. According to the report Balancing Act: Public Employees and Free Speech, while the First Amendment prevents police from arresting a person for publicly criticizing the chief of police, the mayor, the governor, or even the president of the United States, the job of a public employee who speaks critically of his or her employer may or may not be protected by the First Amendment. If a reviewing court determines that the employee’s speech was disruptive or subversive to the employer’s interest in maintaining an efficient workplace, the employee may lose the case. 3
But there’s a second layer to consider.
The National Labor Relations Act (NLRA), established in 1935, protects workers engaged in “concerted” (i.e., collective) activities to improve workplace conditions. In some cases, the National Labor Relations Board (NLRB) might consider Facebook “Likes” and associated comments enough to satisfy the NLRA requirement. If comments were about making positive changes to the workplace—and an employee was terminated for the post—there might be cause to appeal on grounds of unlawful termination. 4
In other words, maybe the offended party found the remarks disruptive, while the intention was actually to the contrary.
“People have the right to speak without interference from government but people don’t always understand the impact of what they’re posting,” said Louise Ganley, PDC clinical support representative and co-presenter for the NAVIGATOR session on social media. “It becomes a question of where do you, as an agency, draw the line.”
Think about it
Perhaps the best protection for a public employee is withholding judgment from a very public place, like Facebook or Twitter. After all, a social media posting can take on a life of its own and, no matter how unintentional to offend, turn an innocuous ripple into one of tsunami proportions.
Ganley suggests standing back and taking a deep breath before diving headfirst by hitting the send button.
“What you post on Facebook doesn’t go away,” Ganley said. “The wrong thing might stick just because someone didn’t take a minute to think about it.”
The potential for bad outcomes prompted Montgomery County 911 (Clarksville, Tenn.) Director Betty Miller to develop a Social Media and Social Networking Policy. The policy neither forbids employees from establishing Facebook accounts nor does it discourage them from engaging in other forms of social media when not at work. At the same time, Miller does not consider a policy suggesting discretion at all times an infringement of Free Speech protections.
“That’s something I can’t and wouldn’t do,” she said. “But, as I told my people, be cautious about what you say and think before doing. Any mistake you make is there for the world to see.”
The policy provides guidance regarding use of the Internet as a medium of communication affecting the E9-1-1 center. While the policy includes improper use of the Web in general, the focus lies in social communication.
Miller said she was concerned about comments or actions that could erode public trust of 9-1-1; she was concerned about giving the advantage of accidental but incriminating information that could be used against the agency or employee in a court of law.
“Attorneys, especially the defense in criminal cases, search postings to find statements or actions that could help their case,” Miller said. “I don’t want to see my people put in that situation, so I also discourage staff from identifying themselves as 9-1-1 operators and making comments about the job [when using social media].”
The policy prohibits employees from engaging in social networking while at work and from posting information at any time that is related to the business of the agency, unless prior permission is granted. This includes the obvious, such as calls or active investigations, and, also, symbols associated with the agency (badges).
Employees are asked to maintain an appropriate level of professionalism when using social network sites in private settings and to refrain from posting violent, derogatory, and sexually explicit comments, pictures, or videos.
Wendi Lively, QA for Spartanburg (S.C.) 9-1-1, said their social media policy addresses what staff shouldn’t do, similar to the cautionary approach taken by Miller in Montgomery County.
“I wanted to put the agency on Twitter to assist our other emergency responders,” she said. “When we did, it turned into more than that. The news media became our biggest follower.”
The policy, effective Sept. 1, 2011, addresses social media the center created and supports an employee’s personal use of social media. It covers existing tools and advances in technology that will add to the scope available. The policy reminds staff that nothing is immune from view and that they should never assume personal information on sites is guaranteed protection.
The in-house social media sites maintained in an official capacity is limited by password access; only certain specified employees can create content. A list of unauthorized types of communication is followed by a list of potential uses. For example, Facebook is dedicated to community outreach and education. Twitter provides information of public concern: road closures, weather, missing persons, and special events.
Personal use regulations prohibit content that jeopardizes Spartanburg County Communications, and that applies to operations, coworkers, and public perception. Employees are encouraged against identifying their place of work in personal posts and to refrain from using derogatory language and/or posting disparaging comments that could open them up to civil litigation.
Employees found in violation of the policy are subject to disciplinary action up to and including dismissal.
Lively said the regulations are not meant to be punitive.
“It’s cautionary,” she said. “We wanted to make sure we had our ducks in a row. You never know what people will do with the information they find or how it might be turned around.”
Lively is co-chair of the National Emergency Number Association (NENA) PSAP Operation Committee. In August 2012, the [subcommittee] Social Networking Workgroup released an 18-page document of recommendations for developing social media policies exclusive to agency dissemination. Nothing in the policy addresses personal use by social media account owners.
How to save your job
Ganley and Rutschman recommended the following points for those eager to leave their current job and, possibly, not find another. While they certainly apply to an agency’s created and maintained site, they are also important considerations for social networking from the perceived privacy of your own site.
•Bad-mouth your employer, customers (agencies your center serves), and callers
•Display sexually explicit or other potentially offensive graphic photos
•Release confidential information
•Brag about doing something illegal and how you got away with it
•Post derogatory, insensitive, and inflammatory remarks about an individual’s race or sexual orientation
•Post all the fun stuff you’re up to on the day you called in sick
•Blog about inappropriate topics
•Pick a public fight
Rutschman also advised picking your friends wisely if you would rather stay employed at your current position.
“You don’t know what some people might use against you,” he said. “You don’t want to be the next Facebook blunder.”γ
1 Mitch Hotts, Macom Daily, Facebook comments may get police dispatcher fired, Oct. 7, 2012, http://www.macombdaily.com/article/20121007/NEWS01/121009580/facebook-co... (retrieved Oct. 9, 2012).
2 Conn. EMT’s Facebook firing could set precedent for social media, Nov. 10, 2010, EMS1.com, http://www.ems1.com/ems-advocacy/articles/907641-Conn-EMTs-Facebook-firi...(retrieved Oct. 9, 2012).
3 David L. Hudson, Jr., Balancing Act: Public Employees and Free Speech, A First Amendment Center Publication, Vol. 3, No. 2, published December 2002 http://www.firstamendmentcenter.org/madison/wp-content/uploads/2011/03/F... (retrieved Oct. 9, 2012).
4 Adriana Lee, Fired for Griping About Work on Facebook? How to Know If It’s Unlawful, TechnoBuffalo, http://www.technobuffalo.com/news/fired-for-griping-about-work-on-facebo..., published Sept. 4, 2012 (retrieved Oct. 9, 2012).