PRACTICAL ADVICE IN THE TIME OF SOCIAL MEDIA Department-Issued Equipment Personal Equipment Brought to the Work Place

Carol is a native of Arizona, born and raised in Phoenix. Carol received her Juris Doctorate in 1986 from the University of Arizona Law School. In 1987, Carol helped to establish the law firm of Yen & Pilch, (eventually becoming Yen Pilch & Landeen). Her practice focuses on employment law, civil and commercial litigation and elections law. Caroline A. Pilch For more than 27 years, Carol has represented individuals and businesses in a wide range of matters including complex wage claims, personal injury and wrongful death claims, breach of contract, breach of warranty, trade secrets, breach of non-compete and anti-solicitation agreements, unfair competition, employment discrimination including Title VII discrimination claims, Age Discrimination in Employment claims, Americans with Disability claims, Family Medical Leave Act claims, matters brought under the National Labor Relations Act, wrongful termination, and other employment related matters.

Just a few years ago, there were no cell phones and no way to text, tweet, post, share, like, friend, unfriend……… Fast forward to today:

Communication through a social media outlet is the norm, not the exception. As a result of the social media explosion and court decisions, Police Departments are implementing social media use policies.

The Scope of Social Media Policies: Applies to ALL employees of a police department; Applies to all forms of social media; Grants the Department the right to inspect both Department-owned devices, and, personal devices used to conduct Department business; Grants the Department the right to inspect personal devices brought to the workplace, in certain situations; Subjects employees who violate the policy to discipline.

Department Related Uses of Social Media When using social media in a work related capacity, beware: – As public employees, Department personnel are cautioned that work-related speech (any speech made pursuant to their official duties and owing its existence to the employee’s professional duties and responsibilities) receives much less protection under the First Amendment than purely personal speech and may form the basis for discipline if the speech is deemed detrimental to the Department.

Statements made pursuant to official duties v. as a private citizen When public employees make statements pursuant to their official duties, they are not speaking as private citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Garcetti v. Ceballos, 547 U.S. at 421 Comments made by a police officer acting in his capacity as a union representative are spoken as a private citizen, rather than pursuant to the officer’s official duties. Ellins v. City of Sierra Madre,

No Expectation of Privacy Any personal electronic devices used on duty and/or in an official capacity may be subject to review, subpoena, discovery, … *Employees have no expectation of privacy for any personal communications or information sent or received via the Department network or Department devices.

Personal social media activity can get you in trouble Many Departments caution employees that their speech and related activity on social media sites may be considered a reflection upon their position, and, in some instances, the Department. Employees are often specifically prohibited from using social media in a manner that would cause embarrassment to or discredit the Department in any way.

Common Language in a Social Media Policy: “Department personnel are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships of this Department, are detrimental to the mission and functions of the Department, that undermine respect or public confidence in the Department, cause embarrassment to the Department or City, discredit the Department or City, or undermine the goals and mission of the Department or City.”

Agencies can place restrictions on speech An agency has a governmental interest in promoting the efficiency of the public services it performs through its employees. It can regulate speech and conduct that: – Affects the employee’s or agency coworkers’ job performance; – Affects management’s trust and confidence in the employee’s job performance; – Interferes or adversely affects the agency’s mission

The courts use a “balancing test” Courts, recognizing that technology is changing rapidly, continue to balance an employer's right to restrict certain employee activities with an employee's right to engage in free speech (First Amendment), and, right to be free from unreasonable search/seizure (Fourth Amendment). The U.S. Supreme Court has held that public agencies need only an "adequate" justification to punish an employee for off-duty comments

Courts uphold investigations into off- duty conduct/communication Courts continuously uphold reasonably “narrow-in-scope” investigations into conduct/communication that allegedly discredits or causes embarrassment to the Department---whether the comments, communication or conduct is conducted on or off-duty, through a personal social media technology, and most certainly, if done through the use of City-issued devices.

Our cautions to clients: If you are using any personal device (especially a phone) for work-related matters, do not expect a court to uphold an expectation of privacy claim if the Department searches your personal device and finds something that violates policy. If you make comments off-duty on any social media site, whatsoever, that are of the nature that could subject you to discipline under Policy, any argument that your First Amendment rights have been violated will probably not succeed.

Use the “front-page” newspaper test Do not post or otherwise transmit to any website, online forum or other public medium any statement, picture, video, comment, or otherwise if the content would not be something that could also be published on the front-page of the newspaper. If it cannot be published on the front-page of the newspaper, it is most likely something that is embarrassing or will bring discredit to you or the Department.

Last Thought And even aside from that and on a more personal level. You are a public employee. Pretty much every record you create is a public document subject to release to a PRR. If you use your Department-issued cell phone to text private messages, those messages are not really private; If you use your Department issued laptop to send private s, those s are not really private If you don’t want anything that you are texting or e- mailing to be seen by others, do not send it on Department issued equipment.