Legal & Ethics Conference in Indianapolis

On December 4, 2013, blog author Julie Tappendorf will present a session on the legal and ethical issues with government use of social media at the Legal & Ethics Conference in Indianapolis.  500 state government lawyers and other government officials are expected to attend the conference, including the Indiana Governor, Lt. Governor, Attorney General, and Inspector General. among others.

NLRB Upholds Termination of Teen Center Employees for Facebook Posts

In reviewing cases involving employee discipline or termination for social media conduct, the National Labor Review Board distinguishes between an employee simply griping about his job or employer or co-workers engaging in protected concerted activity.  As a general rule, the employer can discipline or even terminate the griping employee in the first circumstance but must proceed more cautiously in the second. 

In a recent ruling, however, the NLRB upheld the termination of two teen center employees for their Facebook conversation.  Although the ALJ found the employees were engaged in protected concerted activities, their conversations were not protected because they could harm the employer's reputation and the safety of the teens served by the organization. 

Hap tip to the Employer Handbook blog.  To read more:  NLRB ok's firing of two employees who trashed their company on Facebook. 

Employee's Termination for Derogatory Facebook Posts Upheld

Government can regulate its employee's speech on social media sites without offending the First Amendment. In Shepherd v. McGee, (D. Or. Nov. 7, 2013), an employee sued her former employer, the Oregon Department of Health Services, alleging First Amendment retaliation under Section 1983. Specifically, she alleged she was fired because of derogatory Facebook comments she made in violation of her First Amendment rights to free speech.

 

The plaintiff was employed as a child protective services worker who determined child custody cases. On multiple occasions, she posted to her Facebook derogatory remarks about individuals on public assistance, including the following post:

I was listening to the radio and they were making up rules for society. Here are my rules: (1) If you are on public assistance, you may not have additional children and must be on reliable birth control (e.g. an IUD), (2) If you've had your parental rights terminated by DHS, you may not have more children.... it's sterilization for you buddy! (3) If you are on public assistance and don't pay taxes, you shouldn't get taxes back from that child tax credit[,] (4) If you are on public assistance, you may not own a big flat screen television, (5) If you receive food stamps, you should be limited on what you may purchase (no more ribeye steaks, candy, soda, chips, etc), (6) If you physically abuse your child, someone should physically abuse you, (7) I should be president so I can make up more rules, (8) If you don't like my rules, too bad. I have a Ph.D. and you don't so I get to make up my own imaginary rules.

After an investigation, DHS fired the plaintiff, and she sued.

In ruling in favor of DHS against the employee, the court looked at "whether the state had adequate justification for treating the employee differently from other members of the general public." The court agreed that the state had adequate justification for treating the plaintiff differently by firing her.

 

First, the court agreed with DHS that her posts irreparably impaired her ability to perform her duties, since every time she appeared in court to testify on a CPS matter, she would immediately be impeached by the defense attorney. In fact, DHS had already concluded that the employee's Facebook posts would prevent her from ever being called as a witness prospectively, even though she had been doing so 6 to 8 times per month as part of her job responsibilities.

 

Second, the court agreed with DHS that the Facebook posts caused disruption in the workplace sufficient to warrant her firing. Specifically, as a result of the Facebook posts, two coworkers doubted plaintiff's ability to be effective in her role. This was considered by the court to be sufficient evidence of a "substantial disruption" in their working relationships.

 

Finally, the court noted that the speech was not at the core of the First Amendment nor had it been disseminated to a wider audience, although the court noted that even if plaintiff's speech met either or both of these tests, the balance would still tip in the employer's favor. 

Plaintiff's Termination for Facebook Post Upheld

After an employee was fired from his job as a teacher's aide at a preschool center, he sued claiming that the center violated his civil rights by discriminating against him because he was male and for defamation.  The center claims the plaintiff was fired because of derogatory comments he posted on his Facebook page about a family situation (his boss at the center was also his mother).  The district court ruled in favor of the center, finding that plaintiff did not provide any evidence that the firing was a pretext for discrimination.  The Seventh Circuit Court of Appeals agreed, upholding the ruling in favor of the employer.  Smizer v. Community Mennonite Early Learning Center (7th Cir. Oct. 25, 2013)(unpublished opinion).

 

Although the decision was not published, it provides some guidance to employers who may be hesitant to take any action with respect to social media activities because an employee can simply deny having posted a particular comment.  In this case, the center could not provide actual evidence of the social media posting; nevertheless, the court found that the employer believed that the plaintiff wrote the post, providing the center with a legitimate basis for the firing.  The court concluded that plaintiff did not carry his burden to show that the purported reason for this firing (the Facebook post) was a pretext for gender discrimination.

 

Hat tip to Employment Law Matters for reporting on this case.

Police Officer's Facebook Posts Not Protected Speech

In an unpublished opinion, the 11th Circuit Court of Appeals recently addressed a police officer's lawsuit against the City of Atlanta alleging that the chief failed to promote the officer in retaliation for a comment she posted on Facebook criticizing another officer.  Gresham v. City of Atlanta (11th Cir., October 17, 2013). 

 

The officer had posted a comment on her personal Facebook page criticizing a fellow officer for interfering in an unethical manner with plaintiff's investigation of a suspect for alleged fraud and financial identity theft.  Although the officer's Facebook page's privacy settings allowed only "friends" to view posts, her comments found their way to the City's police department's office of professional standards.  Plaintiff was investigated for an alleged violation of the department's work rule requiring that any criticism of a fellow officer be directed through official department channels, and not be used to the "disadvantage of the reputation or operation of the Department or any employees."  Plaintiff argued that the reason she was not promoted when eligible was in retaliation for her comments, which were being investigated at the time of departmental promotions.  The City argued that she was not promoted because department policy prohibited any promotions during pending disciplinary investigations.

 

The district court ruled in favor of the City, and dismissed the officer's Section 1983, First Amendment lawsuit.  The 11th Circuit agreed, applying the four-part Pickering test for employee speech requiring the court to determine whether (1) plaintiff's speech involved a matter of public concern; (2) plaintiff's interest in speaking outweighed the government's legitimate interest in efficient government service; (3) the speech played a substantial part in the government's challenged employment decision.  If plaintiff establishes the first 3 prongs, then she will prevail unless defendants can prove that (4) they would have made the same employment decision even in the absence of protected speech. 

 

Here, the court determined that the government's interest in avoiding disruption outweighed plaintiff's interest in speaking on this matter.  Furthermore, plaintiff violated a clear departmental rule in commenting on a fellow officer outside of official department channels.  Finally, the court determined that plaintiff's speech interest was not a strong one, and merely reflected "venting her frustration with her superiors."  Thus, the appellate court agreed with the district court's decision to dismiss plaintiff's claims against the City. 

Making the Switch to Feedblitz

I've been blogging for a little over two years on Municipal Minute and about a year on this blog, Strategically Social.  All bloggers understand the importance of "getting the word out," and I'm no exception.  Shortly after starting Municipal Minute, I began using Feedburner to "push" or deliver my blog posts to email subscribers.  Feedburner was easy to set up and once I input my scheduling preferences, it didn't require anything more from me.  

 

Everything worked quite well until a month or two ago, when I noticed that I was not getting regular email updates from my own blogs.  Although I was posting daily on Municipal Minute and weekly on Strategically Social, at least once or twice a week, I was not getting the blog post delivered via email.  I reached out to a few of my email subscribers and learned that some were experiencing the same inconsistency while others continued to receive all email updates.  I couldn't find any solution on Feedburner's forums nor was Feedburner responding to my requests for help.  It was time to change.

 

After much research, I chose to switch to Feedblitz.  I must not be the only former Feedburner customer to make that choice, because Feedblitz has put together a "Feedburner to Feedblitz" migration guide that walks you through each step of the process of moving your subscribers over to the new service.  I hit a few snags with the integration process (first, I had to learn what migration and integration meant - I'm a lawyer, not a techie after all) but Feedblitz support was so helpful - customer support promptly responded to every email I sent with helpful tips on getting everything working.  Within 30 minutes, I had all of my email subscribers for both blogs switched over and within a day or two most of my RSS subscribers are coming over too.

 

So, all in all, this process has been fairly painless.  There are a few things about Feedblitz that I'm not crazy about, but unreliable service is no longer an issue fortunately.  First, you have to pay for Feedblitz where Feedburner is a free service (some would say you get what you pay for).  Second, those who subscribe by RSS directly through Feedburner cannot be automatically migrated over to Feedblitz - you have to "encourage" them to switch over.  Three, you can only link one Twitter account to your blog feed, meaning that you may still have to use a third party service like Tweetfeed for multiple Twitter accounts.  On the other hand, Feedblitz provides the user with a lot more data than Feedburner.  My first blog post using Feedblitz was delivered seamlessly.  You can send messages to your email subscribers through Feedblitz without posting on your blog.   

 

I'm still figuring it all out, and it may take a week or two to get used to the new service and to learn all of the new features.