The Florida Bar

Florida Bar Journal

The Times They Are a Changin’: The Impact of Technology and Social Media on the Public Workplace, Part I

Labor and Employment Law

The influence that technology has on the workplace is no secret. Can you imagine an office environment void of computers? The Internet is an almost indispensable part of business, allowing for more efficient forms of communication, unprecedented access to information, and greater flexibility in work hours and locations. Cell phones are a fixture in almost every home and office. Email permits the nearly instantaneous transmission of digital messages and images from one computer user to another. These technologies have become part of the fabric of our professional environments, and their uses are expanding daily. Desktop computers have given way to portable laptops with wireless capabilities that allow seemingly unlimited mobile Internet access. Cell phones, once costly and cumbersome, have given way to sleek “smart phones” and PDAs that function not only as telephones but also as mini computers, music players, and portable cameras. The advent of these devices has ushered in a technological world where the workplace is no longer confined to the office and where our ability to access information and to effectuate communication is seemingly limited only by our access to a server and the charge in our batteries. The bottom line is that the world we live in today is much smaller than it was even a few years ago. But, you already knew that, didn’t you?

Did you know that the social networking site LinkedIn, which was created on May 5, 2003, to provide professionals with access to networking, marketing, and job search opportunities, currently has more than 70 million users worldwide from more than 200 countries from every continent?

Did you know that YouTube, a video-sharing website on which users can upload, share, and view videos on topics ranging from professional “webinars” to movie trailers to funny home videos, estimates that more than 65,000 videos are being uploaded every day, where nearly 2 billion viewers per day have access to them? Estimates indicate that it would take approximately 1,000 years to watch all of the current video content maintained on YouTube.

Did you know that Twitter, a real-time information network that allows people to share and discover “what’s happening now” via “tweets” — short, text-like messages — currently has 110 million users, with an estimated 300,000 new users per day? More than a third of the users access Twitter via their mobile phone. Twitter recently donated access to all of its tweets to the Library of Congress for research and preservation.

Did you know that, as of the date of this writing, Facebook, a social networking site founded in February 2004, with a stated purpose of helping people “communicate more efficiently with their friends, family, and coworkers” has over 500 million active users worldwide, more than half of which log on to the site on a daily basis to post “status updates” detailing their daily activities, post personal pictures and videos, communicate directly with “Facebook friends,” or simply browse the status of others within their online community? There are more than 150 million active users currently accessing Facebook through their mobile devices, and these users are twice as active on Facebook than nonmobile users. More than 30 billion pieces of content (Web links, news stories, blog posts, notes, photo albums, etc.) are shared on Facebook each month. The average Facebook “user” has approximately 130 “Facebook friends,” is connected to an average of 80 community pages, groups, and events, and creates an estimated 90 pieces of content each month.

These numbers don’t lie. These and other social media platforms are readily available to anyone with Internet access via computer or smart phone, and their use as a means of information gathering and communication has fast become engrained in our culture. With a single “tweet” or “status update” or “mobile upload,” a social networker can distribute information to thousands, if not millions, of users on a global scale with a simple stroke of the keyboard or text pad. Businesses are getting in on the action as well, utilizing social networking platforms as a virtual cost-free resource to distribute information about products and services, develop brand recognition and public awareness, and promote open discussion between the company and its potential.

The explosion of technology and social media has impacted almost every aspect of daily life, including the workplace, and has given rise to a bevy of legal issues for employers to consider. Although many of these issues are not new, their manifestation in the context of social networking may present factual scenarios not previously considered by employers. For instance, the largest public sector labor union in Scotland recently began using Twitter, Facebook, and YouTube to “educate” current and potential union members. These efforts not only allowed the union to disseminate information in support of its efforts and agenda, but also provided the public with an open forum to discuss workplace ills and the merits of unionization.1 Section 8(a)(1) of the National Labor Relations Act prohibits an employer from interfering, coercing, or restraining employees from exercising their rights to collectively challenge workplace practices or participate in concerted union activities. In the context of workplace communications, including solicitation, the Supreme Court has made clear that “[n]o restriction may be placed on the employees’ right to discuss self-organization among themselves….”2 While the NLRB has yet to address the issue in the context of an employer’s utilization and oversight of social networking efforts, one could anticipate the board’s treatment of these virtual electronic bulletin boards in the context of unlawful interference, surveillance, or prohibition of solicitation.

Indeed, the NLRB recently issued a complaint against an employer who fired an employee, in part, for posting critical comments about her supervisor on her personal Facebook page. The employer, Emergency Medical Services Corporation of Greenwood Village, Colorado, published a Blogging and Internet Posting Policy in its employee handbook prohibiting employees from “posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance, unless the employee receives written approval” and from “making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.” Although the employer asserts that the employee was terminated for multiple, legitimate reasons, the NLRB’s complaint alleged that the employee’s Facebook comments constituted “protected concerted activity” for the purpose of the NLRA, and that the employer’s enforcement of the policy constitutes interference with employees in the exercise of their §8(a)(1) right to engage in that protected concerted activity.

As with any manner of communication, there is also the potential for defamatory impact. Sunda Croonquist, a noted comedian, was recently sued by her in-laws for defamation after she posted blog entries and a video clip of her stand up comedy routine on her MySpace page in which she accused her mother-in-law, brother-in-law, and sister-in-law of being racist.3 Employers have long been held accountable for potentially defamatory comments or job references concerning employees. The advent of social media poses foreseeable issues in this context, the most obvious factual scenario involving a critical post on a social networking site by a supervisor concerning a current or former employee.

Employers have often been confronted by wage and overtime claims by employees who allege to have performed “off-the-clock” work for the employer’s benefit. The ultimate standard in those cases is whether the employee actually performed uncompensated work and whether the employer knew or should have known about it.4 One can easily foresee circumstances in which the alleged “off-the-clock” work includes an employee’s work-related posts on a social networking site, and the employer’s alleged notice resulting from monitoring of the computer or device from which the posts were made or from the provision of the social networking site itself, particularly given the increasing use of technology to produce a more mobile workplace.

Aspects of social networking issues have also appeared in several civil rights cases. For instance, a plaintiff recently sued the City of Savannah under 42 U.S.C. §1983 and Title VII of the Civil Rights Act of 1964, alleging that the city subjected her to gender discrimination and retaliation through the enforcement of its workplace policies in the context of her social networking activity. The plaintiff, who was employed as a fire fighter, was reprimanded for conduct detrimental to the department when she posted work-related photos and department training and recruitment videos without authorization on her personal MySpace account, which also contained personal modeling photos of a provocative nature containing partial nudity. The employee claimed that she was not given the same opportunity to remove the offending photos as similarly situated male employees.5 Although the court ultimately found that the employee’s claims were meritless, the case raises issues concerning the ability of an employer to consistently enforce work standards in the context of social media where employee conduct commingles with the literally billions of comments and images that are exchanged daily.

Another plaintiff recently sued her former employer under Title VII for harassment on the basis of race due, in part, to allegedly racially derogatory comments by a co-worker concerning the plaintiff on a social networking site. The comments at issue were posted in the caption of a photo displayed on the co-worker’s personal Facebook page depicting the plaintiff and other co-workers at a work-related function. The plaintiff argued that her former employee was liable for the Facebook comment because it allowed employees to post comments and photos on social networking sites during company time and for company purposes. The harassment claim was ultimately dismissed by the court as not sufficiently severe and/or pervasive enough to create a hostile work environment, and also because the employer promptly investigated the plaintiff’s complaint and took prompt, remedial action, including blocking employee access to the various social media platforms on all office computers.6 However, the facts of the case raise questions concerning employee access to social media platforms during work hours or for work purposes, as well as an employer’s ability and obligation to police potentially harassing conduct on social media when it crosses into the workplace.

A professor at East Stroudsburg University in Pennsylvania was recently escorted off campus by security and suspended without pay for 30 days for posts she made on her personal Facebook page that the university deemed threatening. The offending posts included the inquiry: “Does anyone know where I can find a very discrete hitman? Yes, it’s been that kind of day…” as well as a subsequent comment that the professor “had a good day today, DIDN’T want to kill even one student :-). Now Friday was a different story.” Citing the recent occurences of on-campus violence, including the fatal shooting of three people by an allegedly disgruntled professor at the University of Alabama-Huntsville in February 2010, the university took prompt protective measures in the interest of workplace safety.7

These examples demonstrate that employers have very real practical and legal obligations to monitor employee performance and conduct, and that those obligations extend into the information and communication realm made possible by advancing technology. Failure to adequately do so can lead to significant consequences. In the private employment setting, the legal obligations and challenges presented by advancing technology and emerging social media can often be resolved through thoughtful expansion of traditional workplace policies and established practices. The same may not be true, however, of the challenges presented by technology and social media in the public employment arena, where the government employer’s actions must be balanced with constitutionally guaranteed rights.

For instance, the First Amendment prohibits a government employer from taking adverse employment action against a public employee in retaliation for speech involving matters of public concern. The U.S. Supreme Court has noted, however, that “[w]hen a citizen enters government service, that citizen by necessity must accept certain limitations on his or her freedom.”8 Specifically, “[w]hen 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.”9 Conversely, “[e]mployees who make public statements outside the course of performing their official duties do retain some possibility of First Amendment protection because that is the kind of activity engaged in by the citizens who do not work for the government.”10 Thus, the threshold inquiry for a court’s consideration in the context of First Amendment employment rights is to “discern the purpose of the employee’s speech — that is, whether she spoke on behalf of the public as a citizen, or whether the employee spoke on behalf of herself as an employee.”11

The problem is that this threshold inquiry relies upon consideration of the very distinctions that have been blurred by the ever-increasing use of technology and social media in the workplace. Montana Miller, an assistant professor of popular culture at Bowling Green State University in Ohio, who is an expert on Facebook, identified the crux of the issue facing public employers in the context of First Amendment protections. According to Miller, “[t]here is no longer really a boundary between off-campus and on-campus, or personal and professional — all because of Facebook.”12 Put another way, as the use of social networking has expanded, it is no longer “quite so easy to have segmented identities: now that so many people use a single platform to post constant status updates and photos about their private and public identities, the idea of a home self, a work self, a family self and a high school friends self has become increasingly untenable.”13 As a result, the distinction between “professional” and “personal” required in assessing the application of the First Amendment in the public workplace is one of the most complex issues facing public employers, in large part due to technology’s expansion of the traditional concept of the workplace and social media’s permeation into the work environment.

The complexities of this distinction in the context of social media were recently illustrated in the case of Ranck v. Rundle, 2009 WL 1684645 (S.D. Fla. 2009). In that case, the plaintiff was employed as an assistant state attorney (ASA) at the Miami-Dade Office of the State Attorney and was responsible for prosecuting homicide cases. In January 2004, the plaintiff was assigned a case involving the fatal shooting of a citizen by a Miami-Dade police officer. The investigation revealed that the citizen was not armed at the time of the shooting and that one of the shots hit the citizen at the top of the buttocks. Given the evidence, the plaintiff voiced concern to the investigating detective over whether the shooting was “justified” or “clean.” The plaintiff was subsequently removed from the case by his supervisors. In response, the plaintiff authored a memo to his supervisors which stated, in pertinent part:

I wish to expressly invoke any protections which I might have under Florida or federal “Whistleblower” laws. . . . These actions [to remove me] are not consistent with the avoidance of the appearance of impropriety. To just summarily remove an ASA from an investigation of a police shooting that he was assigned because of a call made by a POLICE MAJOR, when that ASA had expressed legitimate, justified reservations about the propriety of the shooting could hardly look worse to a community that has the right to expect independence of this office from the police agency involved. . . . The decision to remove me will only embolden Butler and perhaps other police officers and departments to “take the ball and go home” whenever there is a disagreement with an ASA, to bypass the ASA completely and go over his/her head and get the ASA removed. And when, not if, that happens I fear that an ASA, like me, who the police have complained about once, will be viewed as a “repeat offender,” as one who “can’t get along with the police,” rather than as one who did nothing wrong in the first place.

The plaintiff received no response to his memo and was not otherwise disciplined for any conduct related to the investigation. However, over three years later, while the shooting investigation was still ongoing, the plaintiff requested a copy of his prior memo via public records request, and, in May 2008, posted the memo on his personal blog and sent a link of his posting to the Justice Building blog, a well known public forum used by lawyers practicing criminal law in Dade County. Plaintiff was suspended without pay for 30 days, in large part due to his public posting of information about an ongoing police shooting investigation, the posting of derisive and offensive comments concerning senior ASAs, and inflicting harm to the integrity, reputation, and well-being of the office of the state attorney. Following the discipline, the plaintiff filed a complaint alleging retaliation for the exercise of his First Amendment rights to free expression.

In analyzing the distinction required under the threshold inquiry, the court found that the plaintiff’s 2004 memo was made by the plaintiff in the course of his official duties, and was, therefore, not entitled to First Amendment protection. According to the court:

Under the prevailing law of this [c]ircuit, [p]laintiff wrote this memo pursuant to his official duties. It is undisputed that [p]laintiff is the ASA originally assigned to the [shooting] and that his position required him to make findings and recommendations concerning investigations on which he is assigned. The memo recounted details concerning the investigation of the [shooting], his impressions of the shooting, the subsequent efforts by the police department to follow up on the investigation, and his removal from the investigation. Such speech falls within plaintiff’s official responsibilities as an ASA who was assigned to the [shooting] investigation.14

The court, however, found that the same memo, posted three years later in the form of a blog on a public social media forum was “an appropriate exercise of the plaintiff’s First Amendment rights meriting protection against adverse employment action by his employer.” In so finding, the court noted the differences in the purpose and motivations associated with each instance and determined that, in contrast with his initial work-related memo, the subsequent blog entry was personal speech due, in large part, to its posting on the social media platform “to alert the legal community about the possible wrongdoing involving a police agency and the appearance of impropriety …in the manner in which [plaintiff] was removed [from the police shooting investigation].”15 As a result, the court found that the plaintiff “was not speaking pursuant to his official duties, but as a citizen whose speech was to raise concerns about the handling of the [investigation] by the [Office of the State Attorney] after the ASA initially assigned to the investigation was removed due to his opinions about the legitimacy of the shooting.”16

The plaintiff’s First Amendment claim was ultimately dismissed by the court since the suspension at issue was legitimately justified on the basis of other instances of inappropriate conduct by the plaintiff, including his lack of candor with supervisors concerning the payment of fees to expert witnesses in his assigned cases and unrelated blog entries by the plaintiff containing disrespectful comments about his supervisors the court determined was not protected speech.17 However, the duality of the court’s treatment of this identical speech illustrates the complexities employers face in determining the constitutional validity of a response to social networking activities by employees. Of course, the drafters of our Constitution did not have tweets and blogs in mind when developing these rights, but what is social networking but an assembly of people gathered for the sharing of speech and the exchange of ideas? As the Ranck case demonstrates, the purpose of speech may be blurred when posted on a social media platform due to the commingling of work-related speech with speech of a personal nature and may be transformed altogether due to the inherent public nature of social media. Employment law jurisprudence in the public sector may undergo significant development to account for this trend.

In next month’s issue, the authors will examine the impact of social media on privacy rights and other emerging legal concerns.

1 Public Sector Union to Use Social Networking to Build Up Support (Aug. 4, 2010), http://news.jobsgopublic.com/2010/08/04/public-sector-union-to-use-social-networking-to-build-up-support/.

2 NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956).

3 Edelman v. Croonquist, 2010 WL 1816180 (Dist. N.J. 2010).

4 See, e.g. , Hertz v. Woodbury County, 566 F.3d 775, 781 (8th Cir. 2009); Davis v. Food Lion, 792 F.2d 1274 (4th Cir. 1986).

5 Marshall v. Mayor and Alderman of the City of Savannah, Georgia, 366 Fed. Appx. 91 (11th Cir. 2010).

6 Amira-Jabbar v. Travel Services, Inc., 2010 WL 2989852 (D. Puerto Rico 2010).

7 Dan Berrett, ESU Professor Suspended for Comments Made on Facebook Page,
Pocono Record, February 26, 2010.

8 Garcetti v. Cebellos, 547 U.S. 410, 418 (2006).

9 Ranck v. Rundle, 2009 WL 1684645 (S.D. Fla. 2009) (citing Garcetti, 547 U.S. at 421).

10 Garcetti, 547 U.S. at 421.

11 Boyce v. Andrew, 510 F. 3d 1333, 1343 (11th Cir. 2007).

12 Dan Berrett, ESU Professor Suspended for Comments Made on Facebook Page,
Pocono Record, February 26, 2010.

13 Jeffrey Rosen, The Web Means the End of Forgetting,
N.Y. Times, July 21, 2010.

14 Ranck, 2009 WL 1684645 at *5.

15 Id. at *6.

16 Id. at *7.

17 Id. at *13.

Gregory A. Hearing is the managing partner with the management labor and employment law firm of Thompson, Sizemore, Gonzalez & Hearing, P.A. He has practiced management labor and employment law for his entire career. He received his law degree from the Florida State University College of Law, cum laude , in 1989. He is board certified in labor and employment law by The Florida Bar, and serves as chair of the Labor and Employment Law Section.

Brian C. Ussery is the owner and founder of The Law Office of Brian C. Ussery, LLC, where he assists companies in all areas of labor and employment law, including the management of human resources and other aspects of the employment relationship, the management of relationships with both public and private sector labor organizations, and the development of sound personnel policies, practices, and training programs. He received his undergraduate degree from the University of Tampa in 1996, and his law degree from the Florida State University College of Law in 2001.

This column is submitted on behalf of the Labor and Employment Law Section, Gregory A. Hearing, chair, and Frank E. Brown, editor.

Labor and Employment Law