Social Media Policies
Employees use many different types of technology at work and at home to communicate. The legal balancing act that is now taking place may be stated as follows: how much of this communication may an employer restrict before it violates an employee’s rights to free speech and privacy?
On 6/23/2010, Rubino, a tenured teacher at P.S. 203 in Brooklyn, posted a Facebook message alluding to drowning her 5th grade class, a day after a student drowned during a field trip. One of Rubino's friends showed the post to the school and the New York City School District (SC) started an investigation, which recommended that Rubino be fired after the postings had been reviewed and accounted for the fact that Rubino's e-mail address is linked to her Facebook account. Rubino was fired after the final report was issued.
The SC reopened the case after Rubino provided contract information for a friend that could have made the postings, instead of her. The SC later found that Rubino asked the friend to take responsibility for the postings for her. The SC again recommended that Rubino be fired. Rubino was charged with "misconduct, neglect of duty and conduct unbecoming her profession." An arbitration hearings was later held where Rubino admitted to the posting and apologized for them. The arbitrator decided that that Rubino's employment be terminated. The arbitrator declined to render a decision on the first amendment right of a person making inappropriate comments of Facebook, but determined that by referring to her students, Rubino was acting as a teacher and not as a private citizen. Termination was recommended because of Rubino's misconduct, the public nature of the online postings, and for breaching the employer’s trust.
Rubino later challenged this decision in court, believing that the first amendment protected her from being fired over her speech and her offense bore no relation to her teaching ability or history. The court agreed with her that she had a belief that only her adult friends would ever see the postings. The court also agreed that the posting had no effect on her teaching ability, nor that the posting hurt any child/student. The court did not condone the conduct, but agreed that termination was the wrong course of action. Therefore, the court vacated her termination and recommended a lesser penalty.
Am organized database that includes 238 social media policies for a variety of industries and types of companies.
In 2012, the National Labor Relations Board filed a report on recent social media cases where the Board looked at many social media policies that resulted in adverse employment action. Also in that Report, the NLRB included the full text of a policy the board found to be lawful, this is what is listed below.
When drawing up a social media policy, there are several important guidelines or policies that must be kept in mind that include: being respectful, honest, and accurate online, posting only appropriate and respectful content, appropriate uses of social media at work, online retaliation policy, and media contacts. The NLRB will be active in the coming years in further defining the restrictions on employers and employees in regard to social media policies. Consequently, it is imperative to look for the newest case law and most recent NLRB postings before drafting or amending a social media policy.
Page last modified November 14, 2013