Employee Off-Duty Social Media Activity and the Role of HR

Karla Schultz and Doug Brock, Attorneys at Law
Walsh, Gallegos, Treviño, Russo & Kyle, P.C.

The constitutional right to free speech is often regarded as a quintessentially American value. That right, however, is not without limits when a district employee is acting in his or her professional capacity. Courts have often upheld school districts’ restrictions on employees’ off-duty social media “speech,” usually arising from either the content of the online speech or the time and place in which the speech took place. District human resources administrators should be familiar with what limits the district may lawfully place on an employee’s off-duty social media use.

Human resources professionals may find themselves in receipt of a copy of a teacher’s expletive-laced Facebook post on the current state of politics or an assistant principal’s Instagram account depicting her “artistic” nude photography hobby. Often, the copies of these postings are accompanied by a demand for the employees’ resignation. So what are the things that should be considered when deciding whether the district even has authority to discipline, or terminate, the employee?

Of course, public school employees enjoy the right to free speech on their own time, including online, and the right protects a wide variety of communications—including, but not limited to, photos, social media posts, comments, and the like, on any number of platforms, public or private, ranging from a Reddit post to a 20-second Snapchat video. But, because they are public employees, district personnel may also have some limits placed on their free speech rights, even when they are off-duty. The first question to ask is whether the employee was “speaking” as a district employee (or could be perceived to be doing so) on social media, or whether the employee was “speaking” as a private citizen, on his or her own time.
A district will likely be able to discipline an employee for her speech if the employee was speaking as part of her official duties, or while acting in her professional capacity. For instance, a bus driver does not have the right to subject students to his political views while driving a bus route, nor does the coach have a right to express her religious beliefs while standing court-side at a game, coaching the student basketball team.

However, if the employee’s comments were made while he was speaking as an off-duty private citizen, the district would need to demonstrate an adequate justification placing restrictions on the employee’s speech. In order to show a legally adequate justification, the district must be able to prove that the speech impeded the proper performance of the employee’s duties, or that the speech interfered with the effective operations of the school. However, in making that determination, it is important to remember that the U.S. Supreme Court has said that “a mere apprehension of a disturbance [at school] is not enough to overcome the right to freedom of expression.” In other words, a district may not discipline an employee’s off-duty speech simply because the employee’s views are considered by others to be distasteful or unpopular.
The second question to ask in determining whether the district may rightly curtail or discipline the employee’s online speech is whether the speech relates to a matter of public concern (e.g., political causes, the district’s curriculum, board elections, etc.) or whether it relates to a matter of private concern (e.g. the employee’s divorce, or complaints about his or her boss). If the speech relates to a matter of public concern, the employee may only be disciplined for off-duty social media speech if the district has adequate justification for treating the employee differently from members of the general public. As noted previously, employees have free speech rights to post online about issues that are of public concern, so the district must be able to prove that any social media speech on these topics somehow impeded the employee’s ability to properly perform his or her job, or that the speech interfered with the effective operations of the school. Again, it is not enough that the comments made are unpopular, or that the district simply does not like them.

When employees speak about matters of private concern—their personal relationships, their political activities, or their hobbies—on their own time and using their own technology, such speech is generally protected by the First Amendment. There are two exceptions to this protection. First, if the conduct expressed is not legal (for instance, a photo of a teacher smoking marijuana in a state where marijuana use is not legal, an image showing a custodian drinking alcohol with students), then the speech is not protected, and the district could discipline or terminate the employee. Second, if the employee improperly used district technology in the social media activity (for instance, logging onto Instagram from a work laptop to follow the latest posts from Victoria’s Secret models), then the employee’s actions are not protected.

Of course, it is not always clear whether a matter is of public or private concern, and unfortunately, there is no easy test. Consider the case of the school security guard who made a reference to a shooting by what she called “black thugs” on her Facebook page, adding that “white people should . . . scare the hell out of them.” The security guard was terminated from her district position after the district investigated complaints that the post showed the employee’s apparent racial “bias” and the complaining party expressed concerns about the security guards ability to fairly perform her job. The employee sued the district, alleging that the termination had violated her First Amendment free speech rights. However, the court ruled that the district had acted within its authority. Despite the fact that the security guard made the online comments as a private citizen, on her own time, and the matter about which she posted did not directly relate to her employment matters, the court decided that the guard’s free speech interests did not outweigh the school district’s interests in maintaining a safe school environment and avoiding a perception of racial bias by its employees. The court agreed with the district that the guard’s Facebook statements could reasonably be presumed to impede her job performance because her job was, in part, to fairly resolve disputes and maintain peace. Therefore, the school acted appropriately in terminating her employment.

One important issue to keep in mind when considering an employee’s First Amendment protections is an educator’s electronic communication with a student or minor. A district undoubtedly possesses the authority to require that an educator refrain from inappropriate communication with a minor via text, e-mail, instant messaging, Twitter or Instagram, etc. These rules are outlined in districts’ employee standards of conduct policies and the SBEC educator code of ethics. Be sure to review those policies when considering discipline of an employee’s off-duty social media actions with students or minors.

In short, an employee’s off-duty social media speech that is both (a) related to the employee’s job or duties and (b) related to work matters, can typically be regulated by the district. Off-duty online speech regarding public matters that are not related to the employee’s position may be regulated by the district if the district can demonstrate that the speech is potentially disruptive to the school or impedes the employee’s ability to perform his or her duties. In contrast, off-duty online speech that is personal and unrelated to the employee’s position, and that causes no detriment to the district, can usually not be regulated by the district. As always, when in doubt, contact your district’s legal counsel for guidance!

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