2017 city law department cle - philadelphia media pitfalls for employers... · 2017 city law...
TRANSCRIPT
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Should You Use Social Media?
• Advantages- Quick and effective way to communicate with constituents,
including voters and tax payers
- Can be used effectively for hiring and recruiting
• Disadvantages- Federal and state laws prohibit employers from discriminating
against employees and applicants based on race, religion, age, disability, gender, national origin, and various other protected characteristics.
- Can the information be verified?
- Is the information relevant to the job?
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Real Life Examples and Horror Stories
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College Student Tweets
• A U.S. Congressman’s daughter’s tweets were followed and publicized by a local paper, which wrote:- “Her tweets chronicle the life of an average upper-middle-class
college girl, which is only made fascinating because she is a Congressman’s daughter. Her feed includes your standard tweets: underage drinking in the Capitol, being annoyed by activists while trying to pick up her birth control at Planned Parenthood — just a few among hundreds.”
• The tweets created an awkward situation for the Congressman, because the tweets memorialized activity that was contrary to some of the Congressman’s votes in Congress.
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Mayor Tweets Confidential Information
• The mayor of a small Michigan town attempted to maintain transparency in his administration by tweeting a link to a check register detailing town expenses.
• He accidentally tweeted a link to a report that had personal information and Social Security numbers for 65 town employees. The tweet went out to 760 Twitter followers.
• The town provided free subscriptions to an identity theft protection service for the employees.
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Congressional Staffer Attacks Sasha and MaliaObama
• Elizabeth Lauten, communications director for Republican Rep. Stephen Fincher of Tennessee, posted this “letter” on Facebook to the daughters of President Obama, criticizing them for looking bored during the annual White House turkey pardoning ceremony.
• She ultimately apologized and resigned.
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Bank Intern Busted by Facebook
• A college intern at a bank was busted when he told his manager that he had to miss work because of a “family emergency.”
• The manager saw a freshly posted picture on Facebook from a Halloween party that the intern apparently missed work to attend.
• The manager attached the photo to his e-mail response to the intern and copied the rest of the office.
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Bank Intern Busted by Facebook
Manager’s email: “Thanks for letting us know—hope everything is ok in New York. (cool wand)”
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Covfefe
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Special Issues in the Public Sector
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Special Issues in the Public Sector
• Free Speech
• Protected activity exception under labor statutes
• Defamation
• Immunity defense for public officials
• The PA Right to Know Law and subpoenas
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Free Speech
• Public employees retain their right to freedom of speech.• To be protected by the First Amendment, a public
employee’s speech must be on a “matter of public concern.”- What is public concern?
• It cannot be of purely personal concern.• Must be fairly considered as relating to any matter of political,
social, or other concern to the community.- Not public concern
• Staff morale• Criticizing your boss…or is it?• Office politics
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Protected Activity Exception
• Certain public employees have additional protections for protected activity under state collective bargaining laws
• Generally, employees can engage in lawful concerted activity for their mutual aid and protection
• This includes certain statements about employees’ terms and conditions of employment
• Can extend to employee statements on social media
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Defamation
• Basic elements of defamation:- False statement that negatively impacts another person’s
reputation or integrity by lowering the subject in the estimation of the community or deter third persons from associating or dealing with him.
- Publication to a third person.
- Lack of or abuse of a privilege.
- Public Officials: actual malice standard requiring proof of reckless disregard of the truth.
- Damages.
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The Invisible Shield for Public Officials
• High Public Official Immunity Defense:- Applies to state law tort claims, not constitutional claims
- Absolute privilege for high public officials for defamatory statements, even if motivated by malice
- Statements (a) must be made in the course of the official’s duties or powers and (b) within the scope of his or her authority
• Does social media fall within the scope of a public official’s municipal duties?
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Right to Know Law
• The Pennsylvania Right to Know Law (“RTKL”) presumes that most records, including emails, are public records.
• Generally, the RTKL places the burden of proof on a municipality to demonstrate that a record is exempt.
• The PA Office of Open Records has ruled that emails sent from an elected official’s private computer/email address can be public records in possession of the municipality, apparently due to the concept of “constructive possession,” so the RTKL should reach beyond township-owned equipment/servers.
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A Cloudy Area Under the RTKL
• Case law in this area indicate that a court will consider: - The capacity in which the official is acting and whether it is a
personal capacity or official capacity (i.e. within the authority of his office)
- The subject matter of the correspondence and whether it relates to the business of the municipality
- The other parties to the correspondence and whether they are members of the public or other government officials
• Generally, public officials should use their official email accounts when sending emails in an official capacity to the public or to other government officials.
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RTKL vs. Subpoenas
• Although an important concern, the RTKL can be much ado about nothing in some cases.- Even if an email falls under a RTKL exception, it still can be
subpoenaed in a court action.
• The best defense is to think before you hit send: Do not send any emails, tweets, etc. or post on social media accounts anything that you are not comfortable later appearing on a big screen in front of a jury in court, in the local newspaper or on a national cable show.
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Best Practices
• Review the City’s social media policy.• Understand what it allows and what it prohibits.• Follow the policy as an employee who uses social media.• Keep your eyes and ears open for potential issues or
violations posed by other employees’ use of social media.• Report concerns to the appropriate person.
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Questions?
