February 2012
January 27, 2012

Know the pitfalls of Facebook and other social media

Author: Matthew E. Bergeron, Associate Counsel and Laura R. Hallar, Legal Fellow
Source: NYSUT United

Facebook and other forms of social media have become the "norm" in terms of connecting with friends and family. However, it has also become common for public employers to use information found on their employees' social media pages as bases for discipline.

The law in this area is still developing. Therefore, members are cautioned that their use of social media may have a negative impact on their employment.

No such thing as 'private'

What you do on social media sites is not "private." Despite Facebook's assurances that you can change your settings so only "friends" can see what you post, don't be fooled. Those friends are free to share what you post — in both the virtual and the real world. Also, hackers have no compunction about invading your privacy.

Courts also have little trouble finding that your constitutionally guaranteed right to privacy does not apply to what you put on the Internet; once you publish something to one or 100 people, any reasonable expectation of privacy disappears.

Courts have also permitted parties in civil litigation to force one another to produce both public and private portions of their social networking pages. In a recent personal injury case, one court granted a defendant access to all of the plaintiff's Facebook postings, holding that they were not shielded from discovery laws simply because the plaintiff had "used the service's privacy settings to restrict access." Undoubtedly, the Facebook postings were harmful to the plaintiff's case.

So, disabuse yourself of the notion that what you put on Facebook is "private." Rather, recognize that it may as well be on a billboard for all to see. That said, if you want to connect with friends, families and colleagues, you should feel generally comfortable doing so, as long you use the utmost discretion in choosing what you post.

'My time, my business?'

Just because you might use social media in your off-duty time does not automatically shield what you post from employer scrutiny. Before the advent of social media, both courts and arbitrators had held that an employer may impose discipline for certain off-duty conduct. New York's highest court has said that discipline can be imposed for off-duty conduct if the "... conduct in question directly affects the performance of the professional responsibilities ... or if, without contribution on the part of [the employer], the conduct has become the subject of such public notoriety that it significantly and reasonably impairs [an employee's] ability to discharge the responsibilities of the position."

We expect schools and other employers to use this standard in arguing that certain social media usage is deserving of discipline, if not termination. Public employers have already done so, citing job-related "posts," "tweets," or pictures of employees engaging in even entirely legal behavior, i.e. drinking, as bases for discipline.

Dos

Because the law on these issues is developing, here are some tips:

  • Be familiar with any employee work rules or policies dealing with electronic communications.
  • Set your social media page privacy settings so that only "friends" can view it and maximize all possible security settings.
  • Be very mindful of who you accept "friend" requests from and to whom you send requests.
  • Stop and think. If you're wondering, "Should I post this," it probably means that you shouldn't.
  • Most importantly, assume that everything you post may be seen by everyone.

Don'ts

Many of the actions below may be completely innocent or explainable, but employees should use their discretion when engaging in the following. If you are a teacher, school-related professional or a professional in higher education, do not:

  • Accept "friend" requests from, or send requests to, students.
  • Post any comments about, or any pictures or videos of, students.
  • Post comments that a school might find inappropriate if read by students or parents.
  • Post photos of yourself engaging in any behavior that a school might find inappropriate if seen by students or parents.
  • Think you can make comments "private" by sending them by direct or private message.

You have no control over what the recipient will do with them.

All employees should also avoid using an employer's computer for personal purposes, as all of the information you enter may be readily accessible by your employer.

The General Counsel's Office provides free legal representation to any NYSUT member who is subject to disciplinary charges, but avoiding disciplinary charges is a much preferable course. We are keeping an eye on how this area of law develops. Aside from ordinary principles of "just cause," there are also other legal principles that may apply, i.e. the First Amendment and the Taylor Law. In the meantime, we urge you to be vigilant about your social media usage.