Reprinted and abridged from NJEA Review, December 2019
By Cosmas P. Diamantis, senior associate at Zeller and Wieliczko, LLP.
Social media platforms have had a profound impact on the way we communicate. Public-sector employees should be mindful of its 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.
Your employer is prohibited from requesting access to your personal social media accounts, but they are not prohibited from viewing what you post publicly. Moreover, co-workers, parents, students, and others can bring your social media posts to your employer’s attention. Such posts can lead to disciplinary action.
State law 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, but the law has exceptions:
- Your employer can view, access and use information from a prospective or current employee’s personal account that is available in the public domain.
- Your employer can enforce 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 employer’s receipt of information pertaining to your activity on a personal account.
- Your employer 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.
Recommendations
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.
- Carefully review your social media connections. For instance, supervisors who 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.
- Review your school district’s social media policy. Understanding the parameters of your employers’ social media policy can provide a better understanding of what supervisors may be looking for when reviewing whether communications are in violation of the policy.
- Scrutinize all of your social media communications in the most negative light and assume all social media communications will be read by your employer. 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 you 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.
- If social media communication is necessary for your employment, create a separate social media account where the communications are strictly limited to work-related topics.
While teachers are specifically held to a high standard of conduct, all school employees should be mindful of the possibility of discipline stemming from inappropriate social media activity.