by Cosmas P. Diamantis
Social media platforms such as Facebook, Twitter, Instagram, LinkedIn, Snapchat and others, have had a profound impact on the way we communicate. Public-sector employees, however, should be mindful of social media’s unintended consequences. As a school employee, you may be affected by—and disciplined for—your use of social media.
While the First Amendment protects speech, such protections are not absolute for public employees. The U.S. Supreme Court has set forth a test that requires courts to balance the interests of the employee acting as a citizen and commenting upon matters of public concern, and the interests of the public employer in promoting the efficiency of the public services it provides. Courts may consider the nature of your speech and whether it impairs discipline or workplace harmony, whether it has a negative impact on close working relationships requiring personal loyalty and confidence, whether it impedes the performance of your duties, or whether it interferes with your employer’s regular operations.
Under New Jersey Public Law 2013, Chapter 155, your employer is prohibited from requesting access to your personal social media accounts. But they are not prohibited from viewing what you post publicly or what others, such as your co-workers, your students, or parents bring to their attention. Such posts can lead to disciplinary action.
The law also prohibits retaliation against you if you refuse to provide your employer with access to your personal accounts or if you exercise your other rights and protections under the law. An employer found guilty of violating the law is subject to a civil penalty of up to $1,000 for the first violation and up to $2,500 for each subsequent violation.
The law has four exceptions:
• Your employer is still obligated to comply with state and federal laws.
• Your employer can enforce their policies on the use of employer-issued electronic communication devices or any accounts or services provided by the employer or that you use for business purposes.
• Your employer can conduct investigations regarding your compliance with applicable laws, regulations or prohibitions against employee misconduct that arises from your employers’ receipt of information pertaining to your activity on a personal account. They can conduct investigations of your actions based upon the receipt of information regarding the unauthorized transfer of proprietary, confidential or financial information to your personal account.
• Your employer can view, access and use information from a prospective or current employee’s personal account that is available in the
Discipline of public employees
While teachers are specifically held to a high standard of conduct, all school employees should be mindful of the possibility for discipline stemming from inappropriate social media activity. You can be disciplined for violating your employer’s policies, rules and regulations, standard operating procedures, code of conduct, general orders, applicable statutes and regulations, or engaging in conduct unbecoming a public employee. Given that few members would follow the safest advice—refrain from using social media altogether—these recommendations can help reduce your exposure to potential discipline resulting from your use of social media.
• Keep all social media settings private. This strengthens your protection under state law and prevents your employer from being able to routinely inspect your social media accounts.
• Scrutinize friends/connections. Carefully review and manage your social media inner circle. For instance, supervisors that are part of your social media inner circle are given direct access to any social media communications you make, which may nullify your protections under the law.
While the First Amendment seeks to protect speech, such protections are not absolute for public employees.
Co-workers, parents, students, and others who can view your posts can bring them to your employer for their review and discipline, which may be permitted under the law. If social media communication is necessary for your employment, you should consider creating a separate social media account where the communications are strictly limited to work-related topics.
• Review your school district’s social media policy. Being aware of and understanding the parameters of your employers’ social media policy can guide you when using social media and provide a better understanding of what supervisors may be looking for when reviewing whether communications are in violation of the policy.
• Become educated. Take advantage of workshops on social media.
• Review the content of all your social media communications carefully. Scrutinize each social media communication in the most negative light and assume all social media communications will be read by your employer. A common expression such as “I could have killed them” may result in disciplinary action and/or a fitness-for-duty examination. All communications should be limited to matters of “public concern” and not to your job.
• Exercise self-control. Social media provides the opportunity to engage, communicate, vent, and otherwise distract them from your duties and responsibilities. Be mindful that you are in control of what social media platforms you use, and how and when to use them.