social media policies & guidance social media presentation... · 2017-02-09 · social media...

SOCIAL MEDIA POLICIES & GUIDANCE

DREW BRACKEN – KRISTY LATTA

AHLERS & COONEY, P.C.

© Ahlers & Cooney, P.C. 2017

WHY CARE ABOUT SOCIAL MEDIA?

•  Everyone is doing it!

•  Over 2.2 billion usernames are registered to the top four social networking sites (Facebook, Twitter, Google+ and LinkedIn)

•  Facebook alone has over 100 billion hits per day

•  Can be a valuable communication tool

WHY CARE ABOUT SOCIAL MEDIA?

•  Need for education regarding appropriate use of social media

•  Social media blurs the lines between what is private and what is public

•  Younger generations of employees have grown up with social media and often do not observe boundaries between work and play

EMPLOYEES AND SOCIAL MEDIA

EMPLOYEES AND SOCIAL MEDIA

•  Issues

• Use in Hiring/Retention Decisions

• NLRA Section 7 Considerations

•  The First Amendment

USE IN HIRING/RETENTION DECISIONS

• Can employers require applicants or employees to disclose their social media usernames/passwords?

•  Public employers - violation of Fourth Amendment

• Can employers use social media at all?

•  Potential for unlawful discrimination


• Using social media in hiring/retention decisions

• Decide whether or not to conduct social media investigation on applicants and employees

• Develop and utilize consistent investigation protocols



•  Separate people doing investigation from people making hiring and employment decisions

•  Relay only non-protected information pertaining to job duties



• Ensure the information you receive is accurate

• Consider inclusion of statements in employment application process

EXAMPLE

NOTICE TO APPLICANTS AND EMPLOYEES

To the fullest extent permitted by state and federal law, the Employer will consider all information concerning an applicant or

an employee in making hiring, firing and other employment-related decisions. The term “all information” includes information

of any kind (verbal, written, photographic, videographic, etc.) that is accessible in any medium (print, electronic, etc.) from any source. The Employer will consider public information and other

information to which it has lawful access. This may include information that is contained in social networking sites, blogs, and other electronic sites, such as YouTube. If there is information that

pertains to you that you believe requires explanation, interpretation, or clarification when it is considered by the

Employer, it is your obligation to communicate this information to the Employer. Information that is relevant to the Employer’s

decisions will be considered regardless of the date on which the Employer obtains the information and regardless of the date on

which the information was first published, created, or made accessible to the Employer.

NLRA SECTION 7 CONSIDERATIONS

•  Section 7 of the NLRA protects the rights of employees to engage in concerted activities

•  Concerted activities involve discussions with respect to wages, hours, and other terms and conditions of employment


• NLRB General Counsel has issued three memoranda specifically directed to regulation by employers of employee use of social media

•  Memorandum OM 11-74 •  Memorandum OM 12-31 •  Memorandum OM 12-59


•  NLRB has aggressively applied Section 7 to employer social media policies

•  NLRB has found various social media policies in violation of the NLRA

•  Any social media policy that restricts employee communications or conduct protected by Section 7 violates the NLRA

•  Iowa Public Employment Relations Act


•  Unlawful prohibitions on employee social media:

•  Making disparaging comments about the employer

•  Engag ing in d i s re spect fu l conduct o r participating in inappropriate conversations

•  Engaging in unprofessional communication that could negatively impact the employer’s reputation

•  Disclosing sensitive information


•  Acceptable restrictions on employee social media:

•  Prohibition on representing any employee opinion or statement as the policy or view of the employer

•  Requirement that employees expressly state that their postings are their own and do not represent the employer’s opinion

•  Prohibition on accessing employee social media accounts on employer time or on employer property

EXAMPLE

• Chipotle Services LLC, 04-CA-147314

• Chipotle employee tweeted a news article about having to work on snow days. Employee also tweeted about being paid a low hourly rate.

EXAMPLE

• Chipotle social media policy:

•  “If you aren’t careful and don’t use your head, your online activity can also damage Chipotle…”

•  “You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle...”

• Chipotle directed the employee to delete the tweets. He was eventually fired, and he sued.

EXAMPLE

•  The ALJ ruled that Chipotle violated Section 7, because the tweets concerned working conditions (snow days) and wages (hourly rate), which the NLRA protects.

•  The ALJ required Chipotle to rehire the employee, and struck down the policy.

THE FIRST AMENDMENT

• How does the Constitution apply here?

• Use of social media by public employees involves free speech rights.

THE FIRST AMENDMENT

•  In order for an employee’s speech to be protected, the employee must be:

•  speaking as a citizen (as opposed to an employee),

•  on a matter of public concern (as opposed to a personal concern), and

•  the interests of the employee’s speech outweigh the interests of the employer in promoting the efficiency of the public services it provides.

EXAMPLE

Negative criticism of the school district, its staff or students, Munroe v. Cent. Bucks Sch. Dist., 34 F. Supp. 3d 532 (E.D. Pa. 2014)

•  High school English teacher had a private blog in which she mostly wrote about personal matters.

•  However, there were also posts in which she complained about the rudeness and lack of motivation among her students

EXAMPLE

•  Referred to students as “jerk,” “rat-like,” “dunderhead,” “whiny, simpering grade-grubber with an unrealistically high perception of own ability level” and “frightfully dim.”

•  She also wrote that parents were “breeding a disgusting brood of insolent, unappreciative, selfish brats.”

•  The school district fired the teacher, and she sued.

EXAMPLE

•  The court first determined the employee was speaking as a private citizen in her blog.

•  The court next determined that although the blog was dominated by personal issues, there were occasional areas that touched upon broad issues of political and social concern . . .

EXAMPLE

. . . BUT the court analyzed the context of those areas and concluded that when the employee addressed issues of public concern she did so in order to discuss other, personal issues:

•  “Far from implicating larger discussions of educational reform, pedagogical methods, or specific school policies, Plaintiff mostly complained about the failure of her students to live up to her expectations, and focused on negative interactions between herself and her students.”

EXAMPLE

•  The court ultimately concluded that the blog eroded the necessary trust and respect between the employee and her students.

•  Reflected in the fact that concerned parents requested that their students not be in her class

•  The court also held that the employee’s speech was not protected because “in both effect and tone, [it] was sufficiently disruptive so as to diminish any legitimate interest in its expression.”

STUDENTS

SOCIAL MEDIA ISSUES

•  Students

•  The First Amendment • Use in Discipline Decisions •  Safety

THE FIRST AMENDMENT

•  The Constitution again??

• Use of social media by students involves free speech rights under the First Amendment

THE FIRST AMENDMENT

•  The Tinker standard for on-campus speech

•  In order to regulate student speech, the speech must create, or be reasonably certain to create, a material or substantial disruption to the school’s educational mission. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

•  “Schoolhouse gate”

• Does Tinker apply to student use of social media away from school?

EXAMPLE

Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir. 2011)

•  Layshock, a high school senior, used a computer at his grandmother’s home during nonschool hours and created a parody of the high school principal on MySpace.

•  Included a photograph of the principal, and depicted him as gay and a drunk. It also contained allegations that he was a steroid user, used other drugs, and was transgender.

•  The school district suspended the student, and he sued.

EXAMPLE

•  The court found in favor of the student based on the First Amendment.

•  The court found that there was not a sufficient nexus between the parody web page and the school district to establish foreseeable and substantial disruption of the school.

•  Since the website was not created on school grounds and did not result in disruption of school operations, any punishment of the student for creating the web page would be reaching too far outside the authority of the school.

USE IN DISCIPLINE DECISIONS

• Can a school district discipline a student for use of social media?

•  Social media at school – traditional First Amendment analysis, school regulations

• And don’t forget about the Fourth Amendment! •  Searches of student technology must: •  Be based on reasonable grounds •  Be limited in scope


• Can a school district discipline a student for use of social media?

•  Social media away from school – must be a sufficient nexus between the social media and material or substantial disruption at school


•  The Layschock court noted:

•  “With the tools of modern technology, a student could, with malice aforethought, engineer egregiously disruptive events and, if the trouble-maker were savvy enough to tweet the organizing communications from his or her cellphone while standing one foot outside the school property, the school administrators might succeed in heading off the actual disruption in the building but would be left powerless to discipline the student.”

SAFETY

•  School district employees must maintain professional relationships with all students, both in and out of the classroom.

•  BOEE rules prohibit “soliciting, encouraging, or consummating a romantic or otherwise inappropriate relationship with a student.”

SAFETY

•  Legitimate school business can be conducted between teachers and students on school-based sites and social media

•  But teachers must be mindful of physical and emotional boundaries that staff should observe with students

•  Need to protect students from school staff who could use social media to bring vulnerable students into their confidence

SAFETY

•  Social media communication with students should be accessible, open and transparent, and professional

•  Schools should provide training to their

employees about social media for professional and personal use

•  Practice should be grounded in policy

SOCIAL MEDIA POLICY – WHAT NOT TO DO

•  In 2011, the state of Missouri tried to prevent all use of social media by school employees.

•  Motivated by threats posed to students by teachers who misuse social media to cultivate improper relationships with vulnerable students

•  The law prohibited teachers from establishing, maintaining or using a “non-work-related Internet site which allows exclusive access with a current or former student.”

SOCIAL MEDIA POLICY – WHAT NOT TO DO

•  The result?

•  Public outcry (especially from the teachers’ union)

•  By banning the use of any tool by which a private conversation between a teacher and a student could take place, the law effectively silenced much more speech than was necessary to address the problem

•  Ultimately, the law was repealed

SOCIAL MEDIA POLICY – WHAT TO DO

•  Understand social media as an education and communication tool, and know the rights of teachers and students to engage in social media

•  Recognize that the lines between educational and personal use of social media can be confusing

•  Strike a reasonable balance between the viable use of social media, teachers’ and students’ rights, and school efficiency and safety

SOCIAL MEDIA POLICY – WHAT TO DO

•  Require employees and students to conduct themselves in such a way that their educational or personal use of social media does not adversely affect their status with the district

•  Establish protocols and expectations for use of social media by employees and students

•  The focus should be on behaviors that would be inappropriate

SOCIAL MEDIA POLICY TIPS

• DO consider whether you want to have a stand-alone policy for social media or incorporate social media into existing policies

•  DO consider whether you want to have

separate policies for employees and students or address these two groups together


• DO define “social media” • Any form of online publication or presence

that allows interactive communication, including, but not l imited to, social networking websites such as Facebook, Twitter, Instagram, or similar sites now and in the future •  In addition, personal web pages or blogs,

educational networking sites, and electronic messaging

SOCIAL MEDIA POLICY TIPS •  DON’T be overly broad

•  DON’T prohibit employees from discussing and disclosing information regarding conditions of employment

•  DON’T prohibit “offensive” expressions

•  DON’T go too far •  DON’T prohibit employees from “friending” or

engaging other employees •  DON’T prohibit employees from communicating

with students with whom they have a relationship independent of the school (i.e., teacher’s own child)


•  Expectations for all use of social media

•  Maintain appropriate social networking privacy settings

•  Exercise caution about the type and amount of personal information shared on social media

•  Only predetermined staff members are to act as representatives of or spokespersons for the district

•  Do not post content that is defamatory or obscene, or which constitutes an incitement to imminent violence or a true threat, or which violates copyright or other intellectual property laws

•  Do not post information that is confidential by law


•  Expectations for educational use of social media

•  Social media accessed through a district-owned computer or network is subject to district policies and rules regarding acceptable use of district technology resources

•  Social media accessed at school is subject to district policies and rules regarding appropriate conduct

•  E.g., bullying and harassment

•  Social media sites for a school, class, or program may be created only with prior approval of the district


•  Expectations for personal use of social media

•  Employees should carefully consider the pros and cons, potential difficulties, and additional responsibilities that may be involved if they accept current district students as “friends” or “follow” them on social media

•  Employees should consider whether a particular posting on social media puts their professional reputation and effectiveness as a district employee at risk

•  Students should consider that their social media use may result in disruption at school and the school may need to get involved


•  Notice that employees found to have engaged in inappropriate use of social media may be subject to disciplinary action by the district, up to and including termination

•  Notice that students found to have engaged in inappropriate use of social media may be subject to disciplinary action by the district, up to and including expulsion

WHERE TO GO FROM HERE?

•  Social media remains a new, evolving, and untested area

• Best thing you can do is apply established

legal principles to social media practices •  Legal challenges still possible •  Implementation will be key

Questions?

Thank you!

social media policies & guidance social media presentation... · 2017-02-09 · social media...

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