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Social networking, employee discipline and free speech

In the past year, the media have devoted much attention to cases in which an employer disciplined an employee for making negative comments about the workplace through Twitter, blogs and social networking sites.

The National Labor Relations Board has said it will thoroughly investigate any charge filed with it that involves discipline of an employee for complaints on social media sites about a manager or the employee’s working conditions.

Indeed, the board’s general counsel issued a report on Aug. 18 outlining recent developments in cases before the NLRB that concern employees engaging in social networking activities and employers’ policies on the use of social media.

The board said it will strike down any discipline resulting from an employee’s remarks in cyberspace when those remarks have stemmed from discussions with the employee’s co-workers regarding their terms and conditions of employment.

Less attention has been devoted to cases that raise constitutional arguments against an employer for disciplining an employee for postings on social media sites.

There is one recent suit, however, that could be the seminal case on that issue. Doherty v. Guerino and the Town of Bourne, C.A. No. 1:11-cv-10953, has been filed in U.S. District in Massachusetts and raises free speech claims under the First Amendment to the U.S. Constitution, Article XXI of the Massachusetts Declaration of Rights and the Massachusetts Civil Rights Act, G.L.c. 12, §11I.

In Doherty, the town of Bourne terminated Richard Doherty for a series of postings on his Facebook page about his superiors and other town officials.

Doherty alleges in his complaint that he posted comments on his Facebook page that only his 40 Facebook “friends” should have seen, as his account is password-protected. He admits that he criticized, among other things, the Bourne Police Department but that he did so as a private citizen among his friends and colleagues on Facebook.

Doherty also alleges that his complaints about his employer, the Bourne Fire Department, concerned mandatory overtime, staffing shortfalls and overtime pay.

The town publicly stated that it fired Doherty because his Facebook postings constituted misconduct and that his remarks disparaged the Police Department, other firefighters and the town. The town also alleged that Doherty made an anti-gay slur.

The 1st U.S. Circuit Court of Appeals has previously ruled that, under the First Amendment, public employees’ comments will be protected as free speech only when the individual employee is speaking of a matter of public concern. Foley v. Town of Randolph, 598 F.3d 1, 10 (1st Cir. Mass. 2010). Personal gripes about an employee’s work life will not be protected by the First Amendment (although it might be protected by the NLRB as concerted protected activity).

Currently, the test is whether the public employee is acting as a private citizen. If the employee is making comments that would be viewed as speech made by an ordinary citizen, like writing an article in a newspaper criticizing the policies of a city or town, then the First Amendment will protect such comments. Id. at 6. But an employee who is speaking in an official capacity will not enjoy such constitutional protections. Id. at 6-7.

The court further noted that public employers could place restrictions on employees’ speech to prevent them from undermining the goals and objectives of the public entity. Id. at 9. An employee’s statements cannot subvert or be disruptive to the government interest.

In essence, there is a balance “between the constitutional rights of government employees” to state their positions on matters of public interest and a government employer’s need to prevent employees from frustrating the interests of the government. Id.

The advent of social media sites, like Facebook, however, has changed how employees communicate. Employee advocates argue that posts on social media sites are tantamount to employees chatting at the office “water cooler” of yesteryear.

Public employers insist that they must take action when an employee makes inappropriate statements on social media sites because it can hurt their ability to manage the workplace and they can face liability, particularly when the employee’s remarks could be viewed as harassing or discriminatory.

Will the courts continue to analyze public employee speech as they have in the past? Or will they determine that a greater tolerance must be afforded to employees who blog, chat, post and twitter about their employer and life at work?

We must await the answer.

Claudia Centomini is senior counsel at Day Pitney in Boston. As a member of the firm’s labor and employment department, she advises and represents employers in wage and hour matters, discrimination claims, labor arbitrations, and other labor and employment matters.

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