Posted and Not Private

Posted and Not Private A social media warning for educators from your MEA General Counsel Andrew Mason

Many of us think nothing about posting pictures about our daily lives, sharing our comings and goings, or expressing personal opinions on any and all matters.

While many people willingly accept a certain loss of privacy in order to participate in social media, that becomes a double-edged sword if you ever become the focus of an investigation at work. Many people (wrongly) assume that they have a First Amendment right to post or say anything they want in social media, even criticizing their employer. There are misconceptions about what an employer can and cannot do in terms of monitoring and in terms of what access it can have to an employee’s social media or electronic communications.

As a general matter, the First Amendment allows a public employee to speak as a private citizen on matters of public concern. HOWEVER, if you are a public employee and your speech is within the scope and duties of your job, such speech does not have the same protection. This is true because what you say or communicate within the sphere of your employment (in the classroom for instance) is considered speech on behalf of your employer and does not entitle you to much protection from discipline.

Therefore, the very first inquiry when evaluating whether speech is protected or not is: were the public employee’s statements made pursuant to their official duties? The United States Supreme Court has held that when a public employee engages in speech pursuant to their official duties, they are not speaking as private citizens, but as public servants, and therefore the employer’s interests are paramount. For example, you post a “joke” on Facebook about your students being “lazy” – this sort of speech is not protected and you could be disciplined because it does not address a matter of public concern.

If you use social media and comment on students, school, or engage in conduct that impairs your ability to function as a public employee, such speech may not be protected. Courts have upheld the discipline of teachers who post derogatory comments about a school administrator or the decisions of supervisors concerning school matters online and have upheld the disciplining or firing of teachers who inappropriately communicate with students as if they were peers.

As always, the best advice is to use common sense and before you hit “send” assume that whatever you are about to post online, email, or text will be seen or accessible to everyone, including your employer. If you have any doubts or hesitation about whether it is appropriate or could offend anyone whether in context or not, your best bet is to leave the social commentary and humor to the professional comedians, and stick with posting the tried and true cat videos and pratfalls – those are always funny!

NEW SOCIAL MEDIA LAW

Maine has a new law protecting an employee from having their employer access their private social media accounts. Under this law, an employer may not require or coerce an employee or applicant to: disclose passwords or other means for accessing personal social media accounts; disclose any social media account information; require or coerce an employee or applicant to add anyone (the employer or an agent of the employer), to the list of contacts/friends associated with a personal social media account; or change their settings that would allow a 3rd party to view the contents of a personal social media account. And finally, an employee cannot be discharged, disciplined, or penalized, and an employer cannot fail or refuse to hire an applicant who refuses to disclose or provide access to their social media accounts.