Social media free speech rights complicated for workers

Kirsti Marohn | St. Cloud (Minn.) Times

ST. CLOUD, Minn. -- An anonymous "Suzy Citizen" leaves fliers criticizing management in a public area of the St. Cloud Public Library, and the Great River Regional Library board of trustees hires an investigator to find out if an employee is the culprit.

A library aide is fired for repeatedly complaining about her supervisors on Facebook and refusing to sign an agreement to refrain from making disparaging public comments about Great River Regional Library staff.

Do employees have free-speech rights to publicly criticize their bosses or workplaces, especially in the social media age when venting on Facebook or Twitter has replaced traditional complaining around the water cooler?

The answer: Sometimes.

Experts say it's a complex and gray area of the law. There are protections in the law for employees to speak out on matters of public concern or the conditions of the workplace, but they are not absolute.

"There's this misperception by some that we enjoy free speech in all the facets of our lives, but we don't," said Ken Paulson, president of the First Amendment Center.

The question of employees' rights when it comes to social media is "the hottest issue going right now," said Dorraine Larison, a St. Cloud employment law attorney who frequently counsels businesses on developing social media policies.

Generally, employees don't enjoy broad First Amendment rights to say whatever they want without risk, Larison said. However, employees do have protections under the National Labor Relations Act, passed in 1935, which include the right to engage in "concerted activity" for collective bargaining or other mutual aid.

Although many workers don't realize it, the law applies to all employees, not just those who belong to a union, Larison said. Before the rise of social media, the law rarely was used in non-union workplaces, she said. Workers complained about their jobs, but not in such a visible way.

"They would talk to each other, but it's not like everyone heard about it," Larison said.

Employers started taking action against employees for Twitter or Facebook comments and developing policies that restricted what workers could say on social media. But the National Labor Relations Board found that some of those actions and policies were illegal because they were overly broad and too restrictive, saying workers have a right to discuss work conditions whether at the office or on Facebook.

The question often comes down to whether the speech is considered concerted activity, Larison said.

"The problem with social media is how do we decide if it's concerted?" she asked.

Generally, that's been interpreted to mean it has to involve more than one employee, Larison said. If someone posts something on Facebook and no one comments, it's probably not concerted, she said. And court decisions have made clear that the language that is threatening in any way is also not acceptable.

Public employees

For public employees like those of the Great River Regional Library, the rules vary slightly. Their speech is protected if they are talking about matters of "public concern," wrote attorney Tom Jovanovich in a June 28 memo to Great River Regional Library administrators.

In the 1968 case of Pickering v. Board of Education, the U.S. Supreme Court established a test to determine whether the public employer can discipline an employee for speech. To be protected, the speech must involve a public rather than a private concern. Also, the employee's right to free speech must outweigh the government's interest in efficient governmental service, Jovanovich wrote.

A public employee probably couldn't be fired for a Facebook post announcing which presidential candidate he planned to vote for, Paulson said, because that qualifies as an issue of public concern. However, public agencies "generally have considerable latitude in dismissing people for insubordinate comments whether they're made in the workplace or not," Paulson said.

Paulson cited a case from January, where the Idaho Supreme Court ruled against a professor who criticized his university's administration. The court ruled that he was terminated not because of the content of what he said, but because of his disruptive behavior.

Clear guidelines

In the wake of constantly changing technology and federal decisions, many companies and organizations are scrambling to write or rewrite their social media policies.

Great River has policies that cover communications, although they do not specifically address social media, Smith said. A social media policy is being drafted and should be completed by the end of the year, she said.

In his memo, Jovanovich advised that guidelines are important to keep employees and the library out of trouble.

"The lines between personal and work lives are getting blurrier each day," Jovanovich wrote. "For better or worse, at some point an employee's personal social media activity will relate to something that happened at work."

Laura Olson, a library aide in Foley, says she was fired Dec. 3 after a disagreement about status updates she wrote on her personal Facebook page. According to Great River, Olson was terminated for "inappropriate behavior and refusal to agree to performance expectations."

Olson said she voiced her opinion at a May 2012 staff meeting that pay for library aides needs to be increased, and was told later that her tone was disrespectful. Olson said she was being her typical self — outspoken, but not angry.

Olson frequently vented about Great River management on her Facebook page and reposted humorous sayings, occasionally using her second-level supervisor's first name and sometimes expletives. Her Facebook account settings allowed the public to view her posts.

Olson said she was called into a meeting with administrators, who handed her printouts of her Facebook posts from the past several months. She was suspended and later terminated when she refused to sign a performance expectation letter. Olson said she feels that library managers monitoring her personal Facebook page intruded on her privacy.

Forming policies

The law trails far behind technology and is trying to catch up, Larison said. She counsels her corporate clients not to make rash decisions, but to look at each case individually, what was said and who was involved.

She encourages her clients to have social media policies, but not to tell employees they can't comment about certain things. Rather, the policies should tell people to use discretion and not post any confidential information. If they comment about their company, they should identify themselves as an employee, Larison said.

Larison said she often lectures friends to be cautious about how they use social media, and advises supervisors not to "friend" those they supervise.

"You may discover information you don't want to know," she said.

Jovanovich wrote that employees should consider anything they post to be "permanent and public."

"It is a good idea to advise employees to refrain from sending or posting information that they would not want their boss or other employees to read, or that they would be embarrassed to see in the newspaper," he wrote.