Mike Tedesco Tedesco Law Group miketlaw@ miketlaw 866.697.6015

1. Firefighters and Social Media: What Happens in Vegas … Ends Up on Facebook April 23, 2014 Mike TedescoTedesco Law Groupmiketlaw@miketlaw.com866.697.6015

2. Overview • Labor Law Rights • Employer surveillance • Protected Activities • Use of Employer Email/Equipment • Individual Employee Rights • Privacy • Search & Seizures • Free Speech • Contract Considerations • Just Cause • Off-duty Conduct

3. Labor Law Rights

4. Labor Law Rights: Bargaining Rights Social media policies = mandatory for bargaining ??? YES • Off-duty conduct • Discipline

5. Labor Law Rights: Surveillance • Fake Facebook accounts for monitoring • U.S. Border Patrol, 132 LA 161 (Scholtz, 2013) • Employee “talking trash” on FB. • FB settings: private • Supervisor set up fake FB account to monitor employee. • FB: no false information/names when sign up

6. Labor Law Rights: Surveillance • Private social media posts = protected by Electronic Stored Communications Act (ECSA) = expectation of privacy (But be careful who you friend = “frenemies”) Crispin v. Christian Audigier, Inc., 717 F.Supp.2d9 65 (CD Cal., 2010) Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-03305 (D.N.J. Aug. 20, 2013)

7. Labor Law Rights: Surveillance • Fake Facebook accounts for monitoring • Facebook charge thrown out • Supervisor improperly obtained FB material from private account through deception. • Discharge of border patrol agent rescinded. U.S. Border Patrol, 132 LA 161 (Scholtz, 2013)

8. Labor Law Rights: Surveillance • Facebook state laws (RCW 49.44.200) • No employer access to FB account • No passwords or viewing • No mandatory “friending” • New hires + current employees

9. Labor Law Rights: PROTECTED ACTIVITIES • State law or local ordinances. “No public employer, or other person, shall directly or indirectly, interfere with, restrain, coerce, or discriminate against any public employee or group of public employees in the free exercise of their right to organize and designate representatives of their own choosing for the purpose of collective bargaining, or in the free exercise of any other right under this chapter.” RCW 41.56.040

10. PROTECTED ACTIVITIES & SOCIAL MEDIA • Facebook Post: My Chief is an idiot. Two firefighters on a rig? We’re going to get killed out there. That’s why we have minimum staffing in our contract. Time to file a grievance, eh? Maybe if the Chief wasn’t getting paid $180k/year to sit in his office and stare out the window, we’d actually have enough guys to fight fires. • Two other employees like the post. • All three employees disciplined. • Lawful?

11. PROTECTED ACTIVITIES & SOCIAL MEDIA • RULE: Employer cannot establish a policy that interferes with your right to engage in protected union activities. • Unlawful: Policy preventing employees from releasing any “confidential information about the employer” or using “disparaging language” on social media sites. • Discussing/disclosing/complaining about conditions of employment = protected union activities.

12. Labor Law Rights:determining when employer action interferes with protected activities • Does the rule prohibit employees from identifying themselves as working for employer? • Does the rule prevent “disparaging,” “disrespectful” or “inappropriate” comments? • Does the rule prevent sharing “confidential information” without examples?

13. Labor Law Rights: Use Of Computers/Emails • WA labor law does not give public employees an independent right to use an employer’s equipment or facilities for union business, including for union organizing. General Rule: • If an employer consistently enforces policies that preclude employees from sending non-work messages, then an employee may be disciplined for sending non-work related e-mails, even if the subject matter of the e-mail is a form of protected union activity. 

14. Labor Law Rights: Use Of Computers/Emails • However, an employer may not prohibit union related e-mails or discriminate against employees who send them when it allows other non-work related emails, such as personal items for sale, non-work related services, or announcements about outside clubs or events, to be sent through employer-owned e-mail. 

15. Individual Employee Rights

16. Individual Employee Rights: Employee Privacy Interests Public employees DO NOT have an expectation of privacy if using the employer’s equipment, network, or account. • Thygeson v. U.S. Bancorp, 2004 U.S. Dist. LEXIS 18863, (D. Or. Sept. 15, 2004): • Employer: Terminated employee after he sent sexually offensive email attachments to co-workers and downloaded sexual material from internet sites and stored them in a personal folder. • Employee sued: Claimed employer’s access of his personal file invaded his privacy. • Court: Concluded the employee did not have expectation of privacy because he stored information on employer’s network.

17. Individual Employee Rights: Unreasonable Search & Seizure City of Ontario v. Quon, 130 S.Ct. 2619 (2010). • The City issued officers pagers to send/receive text messages. • City maintained a policy reserving the right to monitor all network activity and advising employees that users should have no expectation of privacy or confidentiality. • City police officer alleged that the City’s review of his text messages violated his Fourth Amendment right to be free from unreasonable searches/seizures.

18. Individual Employee Rights: Unreasonable Search & Seizure City of Ontario v. Quon, 130 S.Ct. 2619 (2010). • U.S. Supreme Court ruled the City did notviolate Quon’s Fourth Amendment rights: • Quon was put on notice that his text messages were subject to audit. • The City had a legitimate purpose behind its investigation of Quon’s messages.

19. Individual Employee Rights: Employee Privacy Interests • An employee uses the employer’s equipment/network/account for social media = • The employee does not have an expectation of privacy.

20. Individual Employee Rights: Employee Privacy Interests • An employee uses his own equipment/network/account for social media and the social media post is public or widely accessible by others = • The employee does not have an expectation of privacy.

21. Individual Employee Rights: Employee Privacy Interests “Private” settings on social media + own equipment = protected by Electronic Stored Communications Act (ECSA) = expectation of privacy

22. Individual Employee Rights: Free Speech YOU HAVE NO ABSOLUTE FREE SPEECH RIGHTS! Garcetti v. Ceballos, 547 U.S. 410 (2006) • Speech made by an employee pursuant to official duties is NOT protected by the 1st Amendment. • Speech made by an employee in his/her capacity as a private citizen that is of public concernmay be protected. • BUT an employer maystill restrict speech if it disrupts or undermines employer.

23. Free Speech Limits: Undermines the Employer Roe v. City of San Diego, 543 U.S. 77 (2004). • Off-duty San Diego police officer. • Sells X-Rated videos of himself on eBay under the name “Codestud3@aol.com”. • Never identified himself as a “San Diego police officer”. • Did sell a video showing him stripping off a police uniform and masturbating. Also sold police equipment, including San Diego police uniforms.

24. Free Speech Limits: Undermines the Employer Roe v. City of San Diego, 543 U.S. 77 (2004). • Employee terminated; claimed free speech. • Supreme Court: Speech NOT protected. • Use of uniform, law enforcement references, and the striptease video brought disrepute on employer.

25. Individual Employee Rights: Free Speech Ellins v. City of Sierra Madre, 710 F.3d 1049 (9th Cir. 2013) • Union President led no-confidence vote against Chief of Police and issued two press releases that criticized the Chief. • The Chief withheld/delayed a five percent salary increase for the Union President. • Union President sued, alleging that City retaliated against him for exercising his First Amendment rights.

26. Individual Employee Rights: Free Speech Ellins v. City of Sierra Madre, 710 F.3d 1049 (9th Cir. 2013) • Court: • Union President speaking as private citizen – as Union President. • No confidence vote in Chief + press releases = protected speech because it was a matter of public concern. • Departmental problems could affect the ability of the Sierra Madre police force to attract and retain officers.

27. Individual Employee Rights: Free Speech Sierra Madre Lessons: • When acting as a union representative, employees are still speaking as private citizens and retain First Amendment rights. • Speak as union official. • Speak as a union member. • For public employees, speech that concerns working conditions is a matter of public concern.

28. Is Free Speech? Bland v. Roberts (4th Cir. 2013) • Deputies disciplined by sheriff for Facebook activities. • Some had “liked” the Facebook page of the candidate running against the sitting sheriff. • “Liking” a page = widely disseminated = form of speech. • Deputies’ interest in speaking as private citizens about a matter of public concern (support for favored political candidate) outweighed sheriff’s interest in efficient operations (no dissenters amongst rank-and-file). • “Liking” = protected First Amendment political speech.

29. Contract Considerations

30. Just Cause Three Core Components (1) Has the employer proven the alleged misconduct? • Is the policy reasonable, clear, disseminated? • Did the employee actually send the tweet? (2) Was there due process? • Full and fair investigation; Loudermill • Copies of Facebook post v. hearsay accounts. (3) Is the level of punishment appropriate? • Suspension v. termination

31. Just Cause: Off Duty Conduct

32. Off-Duty Conduct: Considerations • Has social media changed the off duty conduct analysis? • What happens when a public employee: • Commits a crime? • Engages in highly publicized, unpopular activities? • Posts lewd messages on Facebook? • Balance: employee rights v. employer’s reputation

33. Off-Duty Conduct • General Rule: An employer may not discipline an employee for off-duty conduct. • Has the exception swallowed the rule in the public sector? • In public safety…YES!!!

34. Off-Duty Conduct: Three Factors Three Factors Does the employee’s conduct: (1) Harm the employer’s reputation or services; (2) Render the employee unable to perform his duties or appear at work; or (3) Lead to refusal, reluctance or inability of other employees to work with the employee.

35. Off-Duty Conduct: Examples • State of Ohio, Dept. of Corrections and AFSCME, Arbitrator Pincus (March 6, 2013): • Grievant was a corrections officer employed by the State of Ohio. • While off-duty, posted on his Facebook page: • “OK, we got Bin Ladin .. . Let’s go get [the Governor] next. Who’s with me?” • The Employer discharged the Grievant. • Employer perceived Facebook post as a threat against the Governor.

36. Off-Duty Conduct: Examples • State of Ohio, Dept. of Corrections and AFSCME, Arbitrator Pincus (March 6, 2013): • The Arbitrator found a nexus between the Facebook posting and the employer’s business: • “His Facebook profile designated his job location and public employee status.” • These conditions supported that the post brought discredit to the Employer. • The Arbitrator reduced discharge to a LONG suspension (penalty too severe). • Ignored First Amendment.

37. Off-Duty Conduct: Examples Off-duty Blogging About The Boss Baker Hughes, Inc., 128 LA 37 (Baroni, 2010) • The employee was terminated after he wrote on his public MySpace page: “Ask any employee what they think of upper management. You might hear the words German, green card terminator…. I could have sworn that Hitler committed suicide. Is there such a thing as reincarnation?”

38. Off-Duty Conduct: Examples Off-duty Blogging About The Boss • Arbitrator determined a nexus to the workplace because of the reference to the supervisor. • Employees who read the post knew the supervisor being referenced because of his heritage. • Upheld termination. • Employee engaged in insubordination and discrimination/harassment in violation of the Company’s policy.