What Happens When Public Employees’ Social Media Posts Disrupt the Workplace?
Can Public Employers Limit Public Employees’ Speech?
Research shows 190 million Americans are on Facebook, 70% of whom use Facebook daily. In 2020, we saw more Americans using social media to show their support for causes or issues. About 1/3 of social media users polled say they have used sites like Facebook and Twitter to post a picture that demonstrates their support for a cause.
Given these statistics, it is not surprising that the explosion of social media use across age groups and increasing social activism, has led to a higher likelihood that issues from social media will permeate the workplace.
Public employees are entitled to freedom of speech by virtue of the First Amendment but only under limited circumstances.
First, for the speech to be protected, the public employee‘s speech must involve matters of public concern. Under the law, matters of public concern include matters of political, social, or other concern to the community. However, the First Amendment does not protect speech concerning personal complaints and grievances the employee has about his or her employment.
Second, even if the employee speaks on a matter of public concern, the employee’s interest in speaking upon the matter of public concern can be outweighed by the public employer’s interest in managing the work environment. In these circumstances, the public employer is permitted to limit the public employee’s speech.
When considering whether the public employer’s interest in limiting the speech outweighs the public employee’s right to speak about matters of public concern, the employer should consider the following.
Did/Does the speech:
- impair the maintenance of discipline by supervisors;
- impair harmony among coworkers;
- damage close personal relationships;
- impede the performance of the public employee’s duties;
- interfere with the operation of the institution;
- undermine the mission of the institution;
- was communication made to the public or to coworkers in private;
- conflict with the responsibilities of the employee within the institution; and
- abuse the authority and public accountability that the employee’s role entailed.
For more than 30 years, Teague Campbell has worked with public employers and we know firsthand that weighing these factors against the employee’s right to free speech can be challenging.