Face Book Issue
cappy
217 Posts
I need some advice about employees posting on Face Book.
First, I have deliberately not visited Face Book to view any of the comments that were revealed to me. I want to know what I may be getting into first.
As some of you know I am the H/R Captain of an emergency service organization. We have a unit that everyone strives (fights) to get on. It carries with it some amount of (perceived) prestige and signifies a high level of training and skill. In reality that may not always be true but it is enough that the members think that way. We have females here in our department and they do their job like anyone else. However there is an undercurrent that one female should not be utilized on this unit. The officer has made a decision that she is adequately qualified to be used and it is the officer's decision. So now we have some of our male members carrying on a complaint forum on Face Book against this female being used on this unit. I do not know but have to assume that as the complaint on Face Book gains popularity and momentum that the attitudes displayed there will if not already, spill into how this employee will be treated while riding the unit.
Most of the females and even the minorities that have been hired in this department, I hired. With the full cooperation of the Chief the department has worked very hard to eliminate discrimination (overt or covert) and to eliminate any glass ceiling. I do not know if the female employee is aware of the Face Book complaints.
What can or should I do if anything? I do not want to wait until this becomes a full blown issue. I am not concerned about the complainers free speech, period. I am concerned about if they have **protected speech** rights as public employees to carry on such impactive discussion against a protected class. What may the deparment's liabilities become?
This Face Book thing is new to me and I know there is not a lot of case law out there for this subject. What would best practice tell me to do? What would you do?
Comments
I need some advice about employees posting on Face Book.
First, I have deliberately not visited Face Book to view any of the comments that were revealed to me. I want to know what I may be getting into first.
As some of you know I am the H/R Captain of an emergency service organization. We have a unit that everyone strives (fights) to get on. It carries with it some amount of (perceived) prestige and signifies a high level of training and skill. In reality that may not always be true but it is enough that the members think that way. We have females here in our department and they do their job like anyone else. However there is an undercurrent that one female should not be utilized on this unit. The officer has made a decision that she is adequately qualified to be used and it is the officer's decision. So now we have some of our male members carrying on a complaint forum on Face Book against this female being used on this unit. I do not know but have to assume that as the complaint on Face Book gains popularity and momentum that the attitudes displayed there will if not already, spill into how this employee will be treated while riding the unit.
Most of the females and even the minorities that have been hired in this department, I hired. With the full cooperation of the Chief the department has worked very hard to eliminate discrimination (overt or covert) and to eliminate any glass ceiling. I do not know if the female employee is aware of the Face Book complaints.
What can or should I do if anything? I do not want to wait until this becomes a full blown issue. I am not concerned about the complainers free speech, period. I am concerned about if they have **protected speech** rights as public employees to carry on such impactive discussion against a protected class. What may the deparment's liabilities become?
This Face Book thing is new to me and I know there is not a lot of case law out there for this subject. What would best practice tell me to do? What would you do?
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Let us know what you find out when you talk to counsel.
Well that says it all! If the TX man has a one sentence answer and that is seek counsel then I guess that is the only thing left to do.[:S]
I'll get back with you on that. [Y]
Cappy - I agree with TXHRGuy that counsel should be involved. I think the one thing you are going to find with public employees with regards to freedom of speech, especially public safety is that they don't have as much freedom as they think. I can't think of the exact term, and my husband is at work and I can't reach him at the moment to ask him, but it goes something like conduct unbecoming a public safety official. Basically the comments they are making are a detrement to the entire department. Public safety officials are really put up on a pedestal because they are out in front of the public and must maintain a certain level of professionalism on and off the job or else it can have an effect on their position. There are a lot of off the job things that a private employer is not allowed to have any say so in, however, that is not always the case with public employees.
I have seen more and more information lately about companies (both private and public) going after employees for stuff that is written on Facebook, Myspace, etc. that seems to be a defamation of character to the organization. I think we are going to see some interesting case law come out in the next year or so. I would say that what these people are doing is a detrement to not only your organization but to the person they are talking about as well.
I hope this makes sense, I am really having a hard time putting this all into coherent terms at the moment. I think I really need to get some sleep this weekend!!
Let us know what counsel says.
This is a pretty open area right now and I imagine it's much tougher in the public domain than in the private domain.
There are a few interesting angles on this.
On one hand, a person who is a self avowed member of the KKK is not, on that basis alone, creating harassment in the workplace. On the other hand, it's hard to reconcile public acts of hate speech with being the manager of a diverse workforce or a workforce that might ever be diverse if it is not already.
Additionally, posting things on face book or creating other forms of written records are not exactly the same as having a conversation among friends around a table at a bar one time. However, you end up with the "hard to reconcile" issue. It's hard to reconcile a person making statements outside of work that, if made inside of the workplace, would violate the Company's harassment policy with a person who is not creating a hostile work environment.
I really don't know how this is panning out in practice.
Cappy - Any update on this situation?
Cappy - Any update on this situation?[/quote]
Yes but not very much. The attorney has said what we all know. . .this is really new territory. However her first reaction was this. If the employees are engaging in personal banter on their own equipment away from the station then there is probably little control the department has over it. Similar to what was expressed above. However if the comments are being made at the station on city equipment and time then the issue changes and some control can be exercised. Of course the best case is if the employees are not engaging in such banter to start with but you know how that goes.
I know that is not much but she promised to get back with me by Friday with more definitive information. When I have that I will share it with the rest of you. [Y]
Ask your attorney this question:
"What if they are using their own equipment on their own time to make these statements, but the statements they are making would violate the harassment policy were they to be made at work, and the statements are known by people at work, including the targets of the work-inappropriate speech, and it is affecting the workplace environment?"
This situation is analagous to me being sitting in a coffee shop, among other co-workers, and minding my own business when a bunch of other co-workers come in and start speaking of me in what would be a violation of the Company's harassment policy in volumes loud enough to be heard by the other co-workers. We could take this a step further and say that a transcript of the conversation was put up on the bathroom wall for everyone of whatever gender I am not to read at their pleasure.
I don't know how public the relevant facebook discourse is, but I would probe down this line.
Here's another I might ask, "what does the law say about a known KKK member being a supervisor in their working life?" "What about if they are just a co-worker of the complainant, does that matter?"
Cappy - you bring up a good point that you need to find out if station equipment (and time) was used to make these postings. Does the department have computer usage policies that you can use to displine if you find out this is the case?
TX - your first question is a good one. I would be curious to see the attorneys response to the question.
Well folks I received an answer from the attorney. It is rather lengthy but I will try to post the really important points. All of this will boil down to [i][b]PROTECTED SPEECH[/i][/b] under First Amendment rights.
There are two issues at play. First, the employer, must consider its ability to investigate the alleged on line misconduct. Second, the employer must consider government employees’ free speech rights. If the employer can show the comments are not protected by the First Amendment and are disrupting the workplace then discipline maybe appropriate.
Government employers must act cautiously and deliberately when investigating alleged on line misconduct. Employers should consider the following when investigating allegations of on line misconduct.
Employers should consider the following when investigating on line misconduct: <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
If there is on line misconduct and that misconduct violates policy or is disruptive to the workplace environment then the employer should consider the following:
Review the spreading of the posted content and the employee’s ability to do his or her job. Determine if the posting has disrupted the workplace.
Comments focused on personal grievances and workplace issues are not protected speech under the First Amendment.
The test for First Amendment protection of government employees’ speech rights was outlined by the United States Supreme Court in Pickering v. Board of Education, and clarified in Connick v. Myers. A two prong Pickering-Connick test was established for government employees to prove they have been disciplined in violation of their First Amendment rights:
1. The employee must show that his or her speech addresses a matter of “public concern”; and
2. The speech must be balanced between the employee’s free speech interest and the employer’s interest in promoting the efficiency of
the public services it performs through its employees.
What is a “public concern?” Speech involves a matter of public concern when it involves a matter of social, political, or other interest to a community, regardless of where the speech occurs. If a “public concern” is established then the employer must balance the employee’s interest in speaking out against the employer’s interest in maintaining a non-disrupted workplace.
The employer must consider:
In the hypothetical, it is clear that the alleged comments are not protected by the First Amendment and maybe subject to discipline. However, while the First Amendment is not an issue in this hypothetical as presented government employers must still prove disruption to the workplace and follow polices prior to any discipline.
Of course there were a lot of other details but this is the gist of the response I received. Hope this is helpful. It has been to me.
Quick note: As a user of FaceBook (FB), I learned that they recently changed their terms of service (ToS) to where almost everything uploaded to FB becomes their property. I'm not sure if this applies to "Notes" or comments on the "Wall," but I do know this applies to pictures, videos, etc. If the comments and "Notes" are owned by FB due to the updated ToS, would this have an impact on the situation at all?
Due to this little change, I removed everything I had on there.
Thanks for posting that, Cappy.
It requires an account to view. After Googling "Offensive Blogs Facebook Postings" (just like the URL says), I found an article about a teacher who may be fired due to risqué pictures and a bad posting of a former mood. I assume that's it?
Sorry, I didn't realize this article was only available to SHRM members! The article reported on an attorney's presentation at the SHRM Employment Law & Legislative Conference in Washington, D.C. The session, entitled “Sex Offenders, Terrorists & Video Resumes,” addressed appropriate employer responses to employees’ off-duty use of blogging and social networking sites.
The attorney advises that there may be several responses: ignore it--sometimes acting will draw more attention, tell the employee to take down the blog/photos or at least ensure the company is not identifiable, discipline the employee, or terminate the employee.
She reminded everyone that employers may not interfere with or discipline employees for engaging in "concerted activitiy" whether union or not. "Five states (California, Colorado, Connecticut, New York and North Dakota) have statutes protecting an employee’s lawful off-duty conduct, and similar legislation is pending in Michigan"
That said, the lawyer went on to explain that, by law, an employee has a "duty of loyalty" to the company and that no law protects conduct that creates a conflict of interest so an employee may not post "trade secrets".
The lawyer also cautioned about uniformly applying monitoring and discipline to avoid claims of discrimination. He also recommended reserving termination for only the most egregious cases to avoid destroying morale.
Her recommendations for a blogging policy (either stand alone, or part of your electronic communications policy)
Do not blog on company time.Do not disclose confidential information.
Do not include defamatory or racially or sexually offensive material.
Do not disparage the employer or its products, or a competitor.
Do not use the company logo.
Be truthful and respectful.