Privacy Issues in the Workplace

The NLRB does not have jurisdiction over public employers in California. The Public Employment Relations Board (PERB) is charged with administering the collective bargaining statutes governing California public employees, and would likely look to the NLRB for guidance on social media issues. Employers should seek legal counsel before disciplining employees when their social media communications involve protected activity, including discussions about union activity or the terms and conditions of employment, even when the posts also involve derogatory comments that may violate the employer’s policies. In addition, at least one court from another jurisdiction, in Grutzmacher v. Howard County 555 , looked at, but did not decide, whether a fire department’s social media policy facially violated the First Amendment. In that case, a former battalion chief 556 in the County Fire Department alleged, among other things, the County’s social media policy violated the First Amendment. The policy prohibited Department employees “from posting or publishing statements that might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent when such statements, opinions or information, may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission.” 557 The Department also had a “Code of Conduct,” which aimed at ensuring “the highest level of integrity and ethical conduct both on and off duty.” 558 It prohibited, among other things, Department personnel from “intentionally engaging in conduct” that was “disrespectful to, or that otherwise undermines the authority of a supervisor or the chain of command,” “publically criticizes or ridicules the Department or Howard County government,” or is “unbecoming” to the Department. 559 The Department revised its policies before the case was decided to “eliminate many of the earlier version’s prohibitions on Department personnel’s private use of social media” and to remove parts of the Code of Conduct that the employee had challenged. 560 Thus, the Court found that the employee’s challenge to the policy was now moot. 561 While we do not have the benefit of knowing what provisions of the policies were removed, the decision provides some guidance that conduct that creates dissension and disharmony in the workplace, frustrates the Department’s public safety mission and threatens community trust, and is disruptive and insubordinate, can be the subject of discipline. 562 ii. Exception – Freedom of Expression Speech Protected by California Constitution and First Amendment Freedom of expression is protected by the First Amendment of the United States Constitution, as made applicable to the states by the Fourteenth Amendment. ( Stanley v. Georgia (1969) 394 U.S. 557, 559.) "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." (U.S. Const., Amend. I.)

The California Constitution also protects the right of free speech. It provides:

"Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." (Cal. Const., art. I, § 2, subd. (a).)

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 165