Privacy Issues in the Workplace

In addition, a 2013 NLRB case held that an employer may not prohibit an employee from using Facebook during work time. 554 The reasoning is that the employee has breaks and is allowed to engage in protected activity during those breaks. An employer may also not prohibit an employee from airing work-related complaints on Facebook or prohibit employees from disclosing salary information or making inflammatory comments. 555 An employee may also use his work email to send a message about a desired change in work conditions as part of protected activity. 556 A 2014 NLRB case has also held that an employer may not have a broadly defined confidentiality and non-disclosure policy that prohibits disparaging statements about the employer or that harm the reputation of the employer, and does not specify the types of disclosures that would be permissible. 557 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 558 , 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 559 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.” 560 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.” 561 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. 562 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. 563 Thus, the Court found that the employee’s challenge to the policy was now moot. 564 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. 565

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