Thursday, November 18, 2010

Another Facebook/Social Media Policy Attacked Over Speech Restrictions

In the wake of NLRB complaint out of Connecticut regarding an employee's Facebook posting that has caused quite the stir comes a complaint by the Teachers’ Union in Manatee County, Florida. The Union has filed a similar complaint alleging that a proposed social-media policy is overly broad so as to violate their right to free speech pursuant to the 1st Amendment. The Delaware Employment Law Blog picked up the story and has an excellent analysis of the case:

The basic free-speech analysis asks three questions. First, is the speech on a matter of public concern? If not, constitutional protections do not attach. For example, if the policy prohibits employees from discussing standard workplace grievances, such as work schedules or budget issues, the speech is not of a public concern and not protected.

Second, is the employee speaking as a citizen or as an employee? This step of the analysis is relatively new and derives from the Supreme Court’s Garcetti decision. The newness of the question means that the courts are still navigating the exact contours and the decisions vary greatly. Generally speaking, though, if an employee speaks only to his or her supervisor or coworkers, as opposed to, for example, writing a letter to the editor of a local newspaper, the speech is said to have been made as an employee and is not therefore protected.

Third, if the speech is on a matter of public concern and is made by an employee speaking as a citizen, the courts conduct a balancing test to determine whether the government’s interest in maintaining an effective, non-disruptive workplace outweighs the employee’s right to speak freely.

If the Florida case proceeds, the court will have to determine whether the proposed policy has the effect of prohibiting what would otherwise be protected speech. One problem for the Union, though, is whether the case will proceed at all. It is only a proposed policy, so there may be an issue of justiciability—whether the court has jurisdiction to hear the case when there has not yet been any harm to the plaintiff. Some may argue that, by merely filing suit instead of trying to negotiate the terms of the policy, the Union has acted in an unreasonable manner designed more for media attention than to effectuate meaningful change. We’ll have to wait to see what the court decides.

I expect to see a lot of these social media policies challenged because it was previously advised to many employers by counsel to implement them but as any clever attorney will do, theories of how they violate labor and employment laws have begun to circulate. Stay tuned!

Enochs Law Firm

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