By Jim Cline
In Part One of this two-part series, we identified the growing problems associated with the Internet and its connected social media. Chiefly, we identified the problem associated with the new opportunities presented to public safety employees to be “stupid” in what they say or do on a much grander and more public scale. As we discussed, previous discipline cases addressed how to discipline officers and firefighters for misplaced communications to a narrow audience, such as the gathering of coworkers off-duty at the neighborhood bar. Now the Internet allows employees to event to the world.
There are a couple of myths at the two extremes regarding the regulation of off-duty conduct, including off-duty speech. At the one extreme, and a misconception held by part to many public safety employees, is the belief that an employer has no “right” to ever regulate off-duty conduct. At the other extreme, is the belief sometimes held by employers that it may regulate off-duty conduct to the same extent that it might regulate on-duty conduct. Neither of these conceptions is true.
Public Safety employers have the right to regulate off-duty conduct. But to do so, they must demonstrate that there is a “nexus” between that off-duty conduct in their legitimate operational interests. Especially for law enforcement officers, it is not unusually difficult for employers to demonstrate that “nexus.” But, additionally, in the realm of communications, public employers are limited in their ability to regulate off-duty speech which might be protected by the First Amendment.
This is a frequent problem we have seen in some of the “social media” policies floating around. We have developed what we consider to be a “model” Public Safety Union social media policy that addresses the overreaching in some of these employer policies. A complete version of this model policy is posted on our Premium Website. Our model policy tackles some of the most serious shortcomings we see in various Department social media policies including:
- Policies that overreach on the regulation of speech, seeking to prohibit any expression that might “negatively affect” the Department (despite the fact that the First Amendment allows a robust debate on matters of “public concern” that might legitimately bring the Department under ridicule).
- Policies that flatly prohibit any posting of photographs of Department equipment on the theory that this would be a “trademark violation” despite the fact that such photographs are already widely posted across the Internet.
- Policies that prohibit speech about what officers learned during the duty day not sufficiently narrowly limited to only matter subject to “confidentiality” requirements.
- Policies requiring employees to get advanced approval before they can make any reference to the Police Department.
- Policies that constitutionally overreach by barring employees from posting any “criticism” of the Department.
In the model policy that we have developed we address those overreaching and unconstitutional elements that we have seen while still recognizing the employer legitimate operational needs. One of the employer policies that we viewed more favorably than the rest was the model policy developed by IACP. One prime virtue of the IACP policy we identified was that where the ability of the Department to legitimately or constitutionally regulate was restricted, the policy did not contain flat out prohibitions on conduct that advised employees what they “should” do when posting on social media. We found these “should” policies to appropriately suggest responsible behavior to employees to, in short, avoid saying something “stupid.”
While we found that for many irresponsible behaviors a “should not” advisory was more reasonable and constitutional than the “shall not” prohibitions found in some other employer policies, we still found that the IACP policy while a more responsible place for Department to start to develop a policy, still fell far short of what we think is required. Further, there are a number of other legal and policy guidelines available for you to further educate yourself on these issues although, as with the IACP policy, we think they sometimes miss the mark. With that caveat, here are some additional suggested reading on this topic we can point to:
- An AELE article on social network policies.
- A law enforcement legal officers meeting powerpoint presentation.
- A discussion of the nuances of these policies in Police Chief magazine.
It should go without saying, but it is worth offering the reminder that, unless you have “waived” your right to negotiate policies and procedures in your CBA, the employer has a duty to bargain working condition policies, including those on this topic. When faced with the prospect of a revised procedure manual, or isolated revise procedures, we always recommend presenting a timely “demand to bargain.” Better yet, your CBA should contain a clause requiring your department to provide at least 30 days advance notice of their intent to adopt new policies.
In any event, the issues in these policies can be legally complex as they touch on constitutional law so you should consult with legal counsel in developing your approach on this issue. And, of course, we recommend coming to those negotiations with the model policy that we have posted on our Premium Website.
