This document summarizes key issues regarding social media use by firefighters and other public employees. It discusses labor law rights related to employer surveillance, protected union activities, and use of employer equipment. It also covers individual employee rights regarding privacy, free speech, unreasonable searches, and off-duty conduct. Specific cases are referenced to illustrate legal principles around these topics. The document concludes by noting considerations for just cause determinations and how off-duty social media conduct can impact employment.

1. MIKE TEDESCO
TEDESCO LAW GROUP
MIKETLAW@MIKETLAW.COM
866.697.6015
Firefighters
and Social Media:
What Happens in Vegas …
Ends Up on Facebook
April 23, 2014

2. OVERVIEW
 Labor Law Rights
 Employer surveillance
 Protected Activities
 Use of Employer
Email/Equipment
 Individual Employee Rights
 Privacy
 Search & Seizures
 Free Speech
 Contract Considerations
 Just Cause
 Off-duty Conduct
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3. LABOR LAW RIGHTS
3

4. LABOR LAW RIGHTS:
BARGAINING RIGHTS
Social media policies
= mandatory for bargaining ???
YES
 Off-duty conduct
 Discipline
4

5. LABOR LAW RIGHTS:
SURVEILLANCE
 Fake Facebook accounts for monitoring
U.S. Border Patrol, 132 LA 161 (Scholtz, 2013)
 Employee “talking trash” on FB.
 FB settings: private
 Supervisor set up fake FB account to monitor
employee.
 FB: no false information/names when sign up
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6. LABOR LAW RIGHTS:
SURVEILLANCE
 Private social media posts
= protected by Electronic Stored
Communications Act (ECSA)
= expectation of privacy
(But be careful who you friend = “frenemies”)
Crispin v. Christian Audigier, Inc., 717 F.Supp.2d9 65 (CD
Cal., 2010)
Ehling v. Monmouth-Ocean Hospital Service Corp., No.
2:11-cv-03305 (D.N.J. Aug. 20, 2013)
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7. LABOR LAW RIGHTS:
SURVEILLANCE
 Fake Facebook accounts for monitoring
 Facebook charge thrown out
 Supervisor improperly obtained FB material
from private account through deception.
 Discharge of border patrol agent rescinded.
U.S. Border Patrol, 132 LA 161 (Scholtz, 2013)
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8. LABOR LAW RIGHTS:
SURVEILLANCE
Facebook state laws (RCW 49.44.200)
 No employer access to FB
account
 No passwords or viewing
 No mandatory “friending”
 New hires + current employees
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9. LABOR LAW RIGHTS:
PROTECTED ACTIVITIES
State law or local ordinances.
“No public employer, or other person, shall
directly or indirectly, interfere with, restrain,
coerce, or discriminate against any public
employee or group of public employees in
the free exercise of their right to organize
and designate representatives of their own
choosing for the purpose of collective
bargaining, or in the free exercise of any
other right under this chapter.”
RCW 41.56.040
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10. PROTECTED ACTIVITIES
& SOCIAL MEDIA
Facebook Post:
My Chief is an idiot. Two firefighters on a rig?
We’re going to get killed out there. That’s why we
have minimum staffing in our contract. Time to
file a grievance, eh? Maybe if the Chief wasn’t
getting paid $180k/year to sit in his office and
stare out the window, we’d actually have enough
guys to fight fires.
Two other employees like the post.
All three employees disciplined.
Lawful?
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11. PROTECTED ACTIVITIES
& SOCIAL MEDIA
RULE: Employer cannot establish a policy that
interferes with your right to engage in protected
union activities.
Unlawful: Policy preventing employees from
releasing any “confidential information about the
employer” or using “disparaging language” on social
media sites.
Discussing/disclosing/complaining about
conditions of employment = protected union
activities.
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12. LABOR LAW RIGHTS:
DETERMINING WHEN EMPLOYER ACTION
INTERFERES WITH PROTECTED ACTIVITIES
Does the rule prohibit
employees from identifying
themselves as working for
employer?
Does the rule prevent
“disparaging,” “disrespectful”
or “inappropriate” comments?
Does the rule prevent sharing
“confidential information”
without examples?
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13. LABOR LAW RIGHTS: USE
OF COMPUTERS/EMAILS
 WA labor law does not give public employees an
independent right to use an employer’s equipment or
facilities for union business, including for union organizing.
General Rule:
 If an employer consistently enforces policies that preclude
employees from sending non-work messages, then an
employee may be disciplined for sending non-work related
e-mails, even if the subject matter of the e-mail is a form of
protected union activity.
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14. LABOR LAW RIGHTS: USE
OF COMPUTERS/EMAILS
However, an employer may not prohibit union related
e-mails or discriminate against employees who send
them when it allows other non-work related emails,
such as personal items for sale, non-work related
services, or announcements about outside clubs or
events, to be sent through employer-owned e-mail.
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15. INDIVIDUAL EMPLOYEE RIGHTS
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16. INDIVIDUAL EMPLOYEE RIGHTS:
EMPLOYEE PRIVACY INTERESTS
Public employees DO NOT have an expectation of privacy if using
the employer’s equipment, network, or account.
 Thygeson v. U.S. Bancorp, 2004 U.S. Dist. LEXIS 18863, (D. Or.
Sept. 15, 2004):
 Employer: Terminated employee after he sent sexually
offensive email attachments to co-workers and downloaded
sexual material from internet sites and stored them in a
personal folder.
 Employee sued: Claimed employer’s access of his personal file
invaded his privacy.
 Court: Concluded the employee did not have expectation of
privacy because he stored information on employer’s network.
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17. INDIVIDUAL EMPLOYEE RIGHTS:
UNREASONABLE SEARCH & SEIZURE
City of Ontario v. Quon, 130 S.Ct. 2619 (2010).
The City issued officers pagers to send/receive text
messages.
City maintained a policy reserving the right to monitor
all network activity and advising employees that users
should have no expectation of privacy or confidentiality.
City police officer alleged that the City’s review of his
text messages violated his Fourth Amendment right to
be free from unreasonable searches/seizures.
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18. INDIVIDUAL EMPLOYEE RIGHTS:
UNREASONABLE SEARCH & SEIZURE
City of Ontario v. Quon, 130 S.Ct. 2619 (2010).
U.S. Supreme Court ruled the City did not violate Quon’s
Fourth Amendment rights:
Quon was put on notice that his text messages were
subject to audit.
The City had a legitimate purpose behind its
investigation of Quon’s messages.
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19. INDIVIDUAL EMPLOYEE RIGHTS:
EMPLOYEE PRIVACY INTERESTS
An employee uses the employer’s
equipment/network/account for
social media =
The employee does not have an
expectation of privacy.
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20. INDIVIDUAL EMPLOYEE RIGHTS:
EMPLOYEE PRIVACY INTERESTS
An employee uses his own
equipment/network/account for
social media and the social media
post is public or widely accessible
by others =
The employee does not have an
expectation of privacy.
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21. INDIVIDUAL EMPLOYEE RIGHTS:
EMPLOYEE PRIVACY INTERESTS
“Private” settings on social
media + own equipment
= protected by Electronic
Stored Communications Act
(ECSA)
= expectation of privacy
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22. INDIVIDUAL EMPLOYEE
RIGHTS: FREE SPEECH
Garcetti v. Ceballos, 547 U.S. 410
(2006)
 Speech made by an employee
pursuant to official duties is NOT
protected by the 1st Amendment.
 Speech made by an employee in
his/her capacity as a private citizen
that is of public concern may be
protected.
 BUT an employer may still
restrict speech if it disrupts or
undermines employer.
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YOU HAVE NO
ABSOLUTE FREE
SPEECH RIGHTS!

23. FREE SPEECH LIMITS:
UNDERMINES THE EMPLOYER
Roe v. City of San Diego, 543 U.S. 77 (2004).
Off-duty San Diego police officer.
Sells X-Rated videos of himself on eBay under the
name “Codestud3@aol.com”.
Never identified himself as a “San Diego police
officer”.
Did sell a video showing him stripping off a police
uniform and masturbating. Also sold police
equipment, including San Diego police uniforms.
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24. FREE SPEECH LIMITS:
UNDERMINES THE EMPLOYER
Roe v. City of San Diego, 543 U.S. 77 (2004).
Employee terminated; claimed free speech.
Supreme Court: Speech NOT protected.
Use of uniform, law enforcement references, and
the striptease video brought disrepute on employer.
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25. INDIVIDUAL EMPLOYEE
RIGHTS: FREE SPEECH
Ellins v. City of Sierra Madre, 710 F.3d 1049 (9th Cir.
2013)
Union President led no-confidence vote against
Chief of Police and issued two press releases that
criticized the Chief.
The Chief withheld/delayed a five percent salary
increase for the Union President.
Union President sued, alleging that City retaliated
against him for exercising his First Amendment
rights.
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26. INDIVIDUAL EMPLOYEE
RIGHTS: FREE SPEECH
Ellins v. City of Sierra Madre, 710 F.3d 1049 (9th Cir.
2013)
Court:
Union President speaking as private citizen – as
Union President.
No confidence vote in Chief + press releases =
protected speech because it was a matter of public
concern.
Departmental problems could affect the ability
of the Sierra Madre police force to attract and
retain officers.
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27. INDIVIDUAL EMPLOYEE
RIGHTS: FREE SPEECH
Sierra Madre Lessons:
When acting as a union
representative, employees are still
speaking as private citizens and
retain First Amendment rights.
Speak as union official.
Speak as a union member.
For public employees, speech that
concerns working conditions is a
matter of public concern.
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28. IS FREE SPEECH?
Bland v. Roberts (4th Cir. 2013)
Deputies disciplined by sheriff for Facebook activities.
Some had “liked” the Facebook page of the candidate
running against the sitting sheriff.
“Liking” a page = widely disseminated = form of
speech.
 Deputies’ interest in speaking as private citizens about
a matter of public concern (support for favored political
candidate) outweighed sheriff’s interest in efficient
operations (no dissenters amongst rank-and-file).
“Liking” = protected First Amendment political speech.
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29. CONTRACT CONSIDERATIONS
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30. JUST CAUSE
Three Core Components
(1) Has the employer proven the alleged
misconduct?
 Is the policy reasonable, clear,
disseminated?
 Did the employee actually send the
tweet?
(2) Was there due process?
 Full and fair investigation; Loudermill
 Copies of Facebook post v. hearsay
accounts.
(3) Is the level of punishment appropriate?
 Suspension v. termination
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31. JUST CAUSE:
OFF DUTY CONDUCT
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32. OFF-DUTY CONDUCT:
CONSIDERATIONS
 Has social media changed the off
duty conduct analysis?
 What happens when a public
employee:
 Commits a crime?
 Engages in highly publicized,
unpopular activities?
 Posts lewd messages on
Facebook?
 Balance: employee rights v.
employer’s reputation
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33. OFF-DUTY CONDUCT
 General Rule: An employer may not discipline
an employee for off-duty conduct.
 Has the exception swallowed the rule in the
public sector?
 In public safety…YES!!!
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34. OFF-DUTY CONDUCT:
THREE FACTORS
Three Factors
Does the employee’s conduct:
(1) Harm the employer’s reputation or
services;
(2) Render the employee unable to perform
his duties or appear at work; or
(3) Lead to refusal, reluctance or inability of
other employees to work with the employee.
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35. OFF-DUTY CONDUCT:
EXAMPLES
State of Ohio, Dept. of Corrections and AFSCME, Arbitrator
Pincus (March 6, 2013):
Grievant was a corrections officer employed by the
State of Ohio.
While off-duty, posted on his Facebook page:
“OK, we got Bin Ladin .. . Let’s go get [the Governor]
next. Who’s with me?”
The Employer discharged the Grievant.
Employer perceived Facebook post as a threat against
the Governor.
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36. OFF-DUTY CONDUCT:
EXAMPLES
State of Ohio, Dept. of Corrections and AFSCME, Arbitrator
Pincus (March 6, 2013):
The Arbitrator found a nexus between the Facebook
posting and the employer’s business:
“His Facebook profile designated his job location and
public employee status.”
These conditions supported that the post brought
discredit to the Employer.
The Arbitrator reduced discharge to a LONG suspension
(penalty too severe).
Ignored First Amendment.
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37. OFF-DUTY CONDUCT:
EXAMPLES
Off-duty Blogging About The Boss
Baker Hughes, Inc., 128 LA 37 (Baroni, 2010)
 The employee was terminated after he wrote on his public
MySpace page:
“Ask any employee what they think of upper
management. You might hear the words German, green
card terminator…. I could have sworn that Hitler
committed suicide. Is there such a thing as
reincarnation?”
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38. OFF-DUTY CONDUCT:
EXAMPLES
Off-duty Blogging About The Boss
 Arbitrator determined a nexus to the
workplace because of the reference to
the supervisor.
 Employees who read the post knew
the supervisor being referenced
because of his heritage.
 Upheld termination.
 Employee engaged in insubordination
and discrimination/harassment in
violation of the Company’s policy.
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