Public-Employee Privacy Rights in the Age of Social Media

Charles R. Bailey
Bailey & Wyant, P.L.L.C.
Charleston, West Virginia
August 13, 2012

Public-Employee Privacy Rights in
the Age of Social Networking
• Technology has greatly increased the ability of employers to monitor

employees both inside and outside of the workplace. At the same time,
technologies such as smart phones have blurred the lines between
personal and business, allowing employees to work from home and
conduct personal matters at work.
• Social networking sites such as Facebook and Twitter present
particularly pressing privacy questions because they integrate several
services: e-mail like communication, photographs, and instant
messaging.
• Oftentimes, social networking sites allow users to post items “privately”
or to a select list of “friends” or contacts. This further blurs the line
between public and private and creates difficult questions regarding
the reasonable expectations of privacy and consent for public
employees.

 The Pew Research Center released data in February

2012 indicating that 66% of online adults use social
networking sites.

 In recent years Employers have increasingly sought to

monitor and screen current and potential employees
through private e-mail accounts and social media
networking sites.

 Public employees are granted more protections

regarding their privacy rights than private employees
 The First Amendment of the United States Constitution

– protects public employees’ right to freedom of speech.




A public employee’s speech may be protected if it (1) pertains
to a matter of public concern and (2) the employee is speaking
as a citizen rather than an employee.
If these facts have been met, a reviewing court will conduct a
balancing test to determine whether the public employer’s
interest in maintaining an effective, non-disruptive workplace
outweighs the public employee’s right to speak freely. If these
factors have not been met, free speech protections do not
apply.

 The Fourth Amendment of the United States Constitution

protects public employees from unreasonable searches and
seizures.
 Searches and seizures by government employers or

supervisors of the private property of their employees are
subject to the restraints of the Fourth Amendment.
 “[T]he touchstone of the Fourth Amendment is
reasonableness.” United States v. Kriesel, 508 F.3d 941, 947
(9th Cir. 2007).
 In determining reasonableness, courts look at “the totality of
the circumstances to determine whether a search is
reasonable.” United States v. Kriesel, 508 F.3d 941, 947 (9th
Cir. 2007)

 “The reasonableness of a search is determined by assessing, on the one hand,
the degree to which it intrudes upon an individual’s privacy and, on the other,
the degree to which it is needed for the promotion of legitimate governmental
interest.” United States v. Knights, 534 U.S. 112, 118-19 (2001).
 However, courts must take into account “[t]he operational realities of the
workplace,” which “may make some employees’ expectations of privacy
unreasonable.” O’Connor v. Ortega, 480 U.S. 709, 715 (1987).
 For example, “[p]ublic employees’ expectations of privacy in their offices,
desks, and file cabinets…may be reduced by virtue of actual office practices and
procedures, or by legitimate regulation.” O’Connor v. Ortega, 480 U.S. 709, 715
(1987).
 Courts have found that the question of whether an employee has a reasonable
expectation of privacy must be addressed on a case-by-case basis. O’Connor v.
Ortega, 480 U.S. 709, 718 (1987).

 Even if an employee has a reasonable expectation of privacy in

the item seized or the area searched, he must also demonstrate
that the search was unreasonable to prove a Fourth Amendment
violation.
 Courts have held that “public employer intrusions on the
constitutionally protected privacy interests of governmental
employees for noninvestigatory, work-related purposes, as well
as for investigations of work-related misconduct, should be
judged by the standard of reasonableness under all the
circumstances.” O’Connor v. Ortega, 480 U.S. 709, 725-26 (1987).
 The search must be “justified at its inception,” and “reasonably
related in scope to the circumstances which justified the
interference in the first place.” O’Connor v. Ortega, 480 U.S. 709,
726 (1987).

• Public Employees’ Right to Privacy in the Age of

Facebook, Twitter, and Text Messaging

• City of Ontario, Cal. v. Quon, 130 S. Ct. 2619 (2010) -- the

Supreme Court of the United States Considered the
limits of public-employee monitoring and the effect of
employee monitoring policies.
• Basic issue of the Quon case – whether government
employees have a constitutional right to keep text
messages private.

 Relevant facts of Quon – the City of Ontario’s police department

issued pagers to its SWAT team members, and warned the
members that they would be responsible for any charges
incurred for use in excess of the contractual agreement.
 Official department policy stated that it had the right to monitor
“network activity including email and Internet use” and that
officers “should have no expectation of privacy” in those
communications.
 However, the lieutenant who administered the pagers had an
informal policy of not examining officers’ messages as long as
they voluntarily paid for charges incurred for excessive use.
 Sergeant Jeff Quon, a member of the City of Ontario’s SWAT
team exceeded the permitted use several times, but voluntarily
paid for the charges each time.

 The City of Ontario’s Police Chief later ordered the

lieutenant to obtain transcripts of pager use for certain
officers, including Sergeant Quon, who repeatedly
exceeded the permitted use.
 A review of the transcripts demonstrated that Sergeant
Quon had exchanged hundreds of personal text messages,
many of them sexually explicit messages between Sergeant
Quon and both his wife and another woman.
 Sergeant Quon and three other individuals with whom he
had exchanged text messages sued the City of Ontario,
alleging a violation of privacy rights under the Fourth
Amendment of the United States Constitution and the
California Constitution.

 Reversing a judgment for the City of Ontario at the trial-

court level, the Ninth Circuit held that the plaintiffs’ rights
to privacy under the federal and state constitutions had
been violated because the search was not reasonable in
scope.
 On petition for a writ of certiorari to the Supreme Court of
the United States, the City of Ontario asked the Court to
decide the scope of the various plaintiffs’ reasonable
expectations of privacy in the text messages, including the
effect of seemingly contradictory formal and informal
policies.
 The petition also asked the Court to resolve a conflict
among the circuit courts of appeals on whether a “less
intrusive means” analysis was appropriate.

 The Supreme Court of the United States declined to rule on

whether or not Sergeant Quon had a reasonable
expectation of privacy in his text messages.
 The Court cited swiftly changing technology as a reason for
its failure to answer that question, saying “[r]apid changes
in the dynamics of communication and information
transmission are evident not just in the technology itself
but in what society accepts as proper behavior. At present,
it is uncertain how workplace norms, and the law’s
treatment of them, will evolve.” City of Ontario, Cal. v.
Quon, 130 S.Ct. 2619 (2010).

 Thus, for the purposes of its holding in Quon, the

Court assumed that Sergeant Quon had a reasonable
expectation of privacy in his text messages, that the
City of Ontario’s review of the transcript constituted a
Fourth Amendment search, and that the principles
applicable to a government employer’s search of an
employee’s physical office apply as well in the
electronic sphere. City of Ontario, Cal. v. Quon, 130
S.Ct. 2619 (2010).

 The Quon Court then turned on whether or not the

search itself was reasonable and found that it was
because it was motivated by a legitimate work-related
purpose, and because it was not excessive in scope.
 Thus, the Court found that there were “reasonable
grounds for [finding it] necessary for a
noninvestigatory work-related purpose,” as the Police
Chief had ordered the audit to determine whether the
City of Ontario’s contractual character limit was
sufficient to meet the City’s needs. City of Ontario,
Cal. v. Quon, 130 S.Ct. 2619, 2623 (2010).

 Although Sergeant Quon exceeded his monthly allotment

of texts a number of times, the City of Ontario requested
transcripts only for August and September 2002 in order to
obtain a large enough sample to decide the character limits’
efficacy, and all the messages that Quon sent while off duty
were redacted.” City of Ontario, Cal. v. Quon, 130 S.Ct.
2619, 2623 (2010).
 Additionally, from the City of Ontario’s perspective, the
fact that Sergeant Quon likely had only a limited privacy
expectation lessened the risk that review would intrude on
highly private details of Sergeant Quon’s life.

 In Bland v. Roberts the United States Court of Appeals for the Fourth Circuit is
considering whether an employee’s “likes” on Facebook is protected by the First
Amendment.
 The Plaintiffs alleged the Sheriff of Hampton City terminated their
employment following his reelection campaign because they supported his
opponent through statements on the opponents Facebook page and “liking”
the opponents page.
 Each of the Plaintiffs claim they supported Sheriff Roberts’ opponent and
Sheriff Roberts had knowledge of this support.
 The lower court granted summary judgment to the Sheriff, finding that “merely
‘liking’ a Facebook page is insufficient speech to merit constitutional
protection.”
 The court further held that in other cases considering First Amendment speech
have considered actual statements made on Facebook as opposed to a simple
“liking.” of a page.
 A Facebook like is not substantive speech warranting First Amendment
protections.

 Gresham v. City of Atlanta, 2012 U.S. Dist. LEXIS 63603; 95

Empl. Prac. Dec. (CCH) P44, 502; 33 L.E.R. Cas. (BNA) 1431.
 Gresham was employed as a police officer for the City of
Atlanta who investigated and arrested a forgery suspect at
Best Buy.
 Following the arrest Gresham posted on Facebook “Who
would like to hear the story of how I arrested a forgery perp
at Best Buy only to find out later at the precinct that he was
the nephew of an Atlanta Police Investigator who stuck her
ass in my case and obstructed it?? Not to mention the fact
that while he was in my custody, she took him into several
other rooms alone before I knew they were related. Who
thinks this is unethical??

 The Office of Professional Standards received a

complaint regarding Gresham’s statements on
Facebook, and an investigation concluded Gresham
violated Work Rule 4.1.06 (“Criticism”) which
prohibited employees from publically criticizing any
employee or any order, action, or policy of the
Department except as officially required.
 While the investigation was ongoing Gresham was
ineligible for promotion.
 Gresham filed suit asserting she was retaliated against
for her statements on Facebook.

 The Court considered Gresham’s claims that she turned to

Facebook when her allegations were not fully investigated.
 The Court held this argument was disingenuous because
Gresham posted on Facebook just Seven (7) days after her
complaint.
 Additionally, the Court held Gresham’s free speech
interests did not outweigh the government’s interests in
“maintaining unity and discipline within the police
department and in preserving public confidence in its
abilities.”
 Gresham’s statements on Facebook were not protected by
the First Amendment.

 In April 2012, the United States Marine Court discharged a







Sergeant Stein for posting on a page used by Marine Corp
meteorologist “Screw Obama and I will not follow his
orders.”
Sergeant Stein had also created a Armed Forces Tea Party
page on Facebook.
The court determined Sergeant Stein violated the Pentagon
policy limiting the speech of service members.
Sergeant Stein specifically violated DoD Directive No.
1344.10, prohibiting participation in a partisan political club
(for sponsering the Tea Party Marines Facebook page), and
for his disparaging statements about President Obama
Sergeant Stein received an other than honorable discharge.

 Other Privacy Concerns – Credit Reports
 While there is no federal prohibition against the use of credit

reports for employment purposes, it appears that federal
regulators may be seeking to curtail the practice.
 In December 2010, the Equal Employment Opportunity
Commission sued an employer in connection with the use of
credit reports in the hiring process.
 While the EEOC alleged that the company used credit reports
in a way that discriminated against African-American job
applicants, in a broader sense the EEOC signaled that it
believes that employers are denying jobs to applicants with
damaged credit histories in situations where creditworthiness
does not appear to be directly related to the job.

 The EEOC noted that credit histories are not compiled

to evaluate responsibility, are often inaccurate, and
may not be a good indicator of an individual’s
qualifications for a particular job.

 In addition to other relief, the EEOC is seeking a

permanent injunction to stop the sued company’s use
of credit histories in hiring and other employment
decisions.

 Employers’ Use of Social Networking Sites to Make

Employment Decisions

 Employers have begun to use social networking sites as

part of their background checks on applicants. There is a
wealth of information which can be found on an applicant’s
Facebook or Twitter page. This can include job attitude,
political affiliation, age, and marital status.
 Because information posted on social networking sites is
generally considered public, and because information
posted on web page profiles generally consists of voluntary
disclosures, employers are not generally restricted from
accessing such information.

 However, an employer should be aware of two

important caveats:

 Authentication – everything on the Internet is not

infallibly true and correct
 An employer CANNOT use information gathered
through social networking to screen out applicants
based upon membership in protected classes, such as
racial groups, ethnic groups, religious affiliations, etc.
 Additionally, because review of candidate profiles on
social networking sites is likely to retrieve isolated bits
of personal information, the employer who utilizes a
search risks making judgments out of context.

 The United States Congress has two bills pending, the Password

Protection Act and the Social Networking Online Protection Act,
which prohibits an employer from requiring or requesting that an
employee or prospective employee provide the employer with a user
name, password, or any other means of accessing a private e-mail
account or social networking website of the employee or prospective
employee.
 The PPA makes it illegal for an employer to compel or coerce access to
any online information stored anywhere on the internet if that
information is secured against general public access by the user.
 The SNOPA further prohibit the employer from discharging,
disciplining, or denying employment or promotion or threatening to
take any action against, any employee or prospective employee for
declining to provide a username and password, or other means for
accessing a private e-mail account or social networking website and
provides for an civil penalty up to $10,000.00.

 Illinois 820 Ill. Comp. Stat. § 55/10 (2012) prohibits

employers from requesting requiring any employee or
prospective employee to provide any password or other
related account information in order for the employer to
access the prospective employee’s account or profile on a
social networking website .
 The bill does not prohibit an employer from maintaining
lawful workplace policies governing the use of employer’s
electronic equipment, including policies regarding internet
use, social networking site use, and electronic mail use.
 However, an employer is not prohibited from accessing
information that is in the public domain or that is
otherwise obtained in compliance with the statute.

 Maryland Code Ann., Lab. & Empl. § 3-712 provides that an employer may

not required an employee or prospective employee to disclose any user
name, password, other means of accessing a personal account or service
through an electronic communications device.
 The employer may require an employee to disclose any user name,
password, or other means for accessing nonpersonal accounts or services
that provide access to the employers internal computer or information
systems.
 Additionally, the employer may investigate the use of a personal website,
internet website, web-based account, or similar account by employee for
business purposes to ensure compliance with applicable securities or
financial law or regulatory requirements; or to ensure the employee is not
engaging in unauthorized downloading of an employer’s proprietary
information or financial data to a personal website, internet website, webbased account or similar account.

 Other states considering similar legislation includes

California, Delaware, Massachusetts, Michigan,
Minnesota, Missouri, New Jersey, New York, Ohio,
Pennsylvania, South Carolina, and Washington.

 Discovery Issues Regarding Employer Monitoring of

Social Networking Sites

 Romano v. Steelchase, Inc., NO. 2006-2233, 2010 N.Y. Slip

Op. 32645U (Sept. 21, 2010), the Supreme Court of New
York, Suffolk County, considered whether a plaintiff
alleging permanent physical injuries must turn over to
defendants information from her social networking
pages relevant to her “activities and enjoyment of life.”

 The public portions of the plaintiff’s Facebook and MySpace

pages showed content that was in direct contradiction to her
claims that she had sustained permanent injuries, and
defendants sought access to the private portions of her pages in
order to gain further contradictory evidence.

 The plaintiff used the available privacy settings on Facebook and

MySpace to restrict access to only those “friends” she wanted to
share information with, but the court found that she could not
shield relevant information from disclosure simply because she
had adopted privacy settings to restrict access.

 The court found that to deny the defendants an

opportunity to access these sites not only would go against
the liberal discovery policies in New York favoring pre-trial
disclosure, but would condone the plaintiff’s attempt to
hide relevant information behind self-regulated privacy
settings.
 The court also considered plaintiff’s argument that
production of the “private” portions of her social
networking pages would be an invasion of privacy under
the Fourth Amendment, and held that production of these
portions would not violate her right to privacy, and any
such concerns were outweighed by the defendants’ need
for the information.

 Applying Romano to the employment context, employees

may well lack an expectation of privacy in what they post to
their social networking sites, regardless of the privacy
settings that they have adopted.
 Romano adds to the patchwork of state and federal
decisions addressing the privacy issues and discovery
implications surrounding employee use of social media.
 No clear trend has emerged, and courts continue to grapple
with these issues and may reach divergent opinions.

 In Britain, the Press Complaints Commission, a

voluntary regulatory body for British printed
newspapers and magazines, ruled in February 2011
that material published on Twitter should be
considered public and can be published.
 The PCC made its decision based on a complaint by a
Department of Transport official that the use of her
“tweets” by newspapers constituted an invasion of
privacy.
 The official’s message used by newspapers included
remarks about her being hungover at work.

 The official said that she had a clear disclaimer that the views

expressed by her on Twitter were personal and not representative
of her employer.
 The official argued that she had a reasonable expectation of
privacy in her “tweets” but the PCC found that the potential
audience for the official’s “tweets” was much wider than her
followers because each message could be forwarded by others,
known as “retweeting.”
 The PCC also agreed with the newspapers’ argument that Twitter
was publicly accessible and that the official had not taken steps
to restrict access to her messages and was not publishing
material anonymously.
 Thus, the PCC held that the newspaper articles containing the
official’s “tweets” did not constitute a breach of privacy.

 In Targonski v. City of Oak Ridge the United States District Court for the
Eastern District of Tennessee is considering the Plaintiff’s harassment, hostile
work environment, constructive discharge, disparate treatment, and retaliation
claims related to rumors of the Plaintiff’s sexual orientation and comments by
fellow employees regarding the same.
 Targonski asserted that she informed her superior officer that Officer Thomas
was spreading sexual rumors about her.
 Additionally, Targonski asserted that Officer Thomas directly told her that her
husband was trying to get Officer Thomas and his girlfriend to have an orgy
involving Officer Thomas’ girlfriend and Officer Thomas felt she was a lesbian
and wanted to be part of it.
 Officer Thomas was transferred to a different shift but the rumors continued.
 Targonski also complained she received six (6) unwanted telephone calls with
heavy breathing. The investigation traced the number to Officer Thomas’
girlfriend whom the department attempted to interview, however Targonski
would not allow the girlfriend to be interviewed unless she was in the room.

 During this same time period Targonski posted several

messages on her Facebook page.
 On February 23, 2010, Targonski posted about her
desire for a female friend to join her naked in the hot
tub.
 The previous day Targonski discussed “naked Twister.”
 On May 22, 2010, Targonski discussed female orgies
involving Officer Thomas’ girlfriend and others to be
filed by Targonski’s husband.

 In the Order Denying Summary Judgment the Court

held that Targonski’s claims of a sexually objectionable
environment must be considered under the totality of
the circumstances including the frequency and
severity of the alleged conduct, whether the conduct
was physically threatening or humiliating as opposed
to merely offensive, and whether it interfered with
Targonski’s work performance.
 The Court found sufficient evidence for the question
to be decided by a jury including consideration of
Targonski’s Facebook posts.

 A handful of states have enacted legislation which limits the rights of

employers to take employment actions based upon such off-duty
conduct as blogging and Facebook posts (California, New York,
Colorado, Montana, and North Dakota).
 Even in states where no such statutes have been enacted employers face
legal liability for employment decisions based upon off-duty blogging
or Facebook posts, such as
 If the employee blogs or posts about status in a protected class, or a

medical condition, or a religious belief – employment decisions based
on these could lead to a discrimination claim.
 If the employee blogs or posts about alleged harassment or
discrimination at work – employment decisions based on these could
lead to a retaliation claim.
 If the employee “whistleblows” about alleged company wrongdoing –
employment decisions based on these could lead to a retaliation claim.

 What can, and should, an employer do with regard to

monitoring social networking sites?

 Example: A soon-t0-be Cisco employee posted the

following “tweet” on Twitter: “Cisco just offered me a
job! Now I have to weigh the utility of a fatty paycheck
against the daily commute to San Jose and hating the
work.” A Cisco supervisor saw the “tweet” and “tweeted”
back, “Who is the hiring manager? I’m sure they would
love to know that you will hate the work. We here at
Cisco are well versed in the web.” The job offer was
rescinded shortly thereafter.

 Best Practices of Using Social Networking Sites to

Make Employment Decisions and Minimizing
Employer Risk

 Courts have not defined the contours of the privacy

interest which regard to public employees’ social
networking site information; thus, public employees
should use caution in their use of social networking
sites to make employment decisions.

 Employers should not rely exclusively, or almost exclusively

on the results from any social network review in making
any employment decisions.
 Employers should clearly train their managers, and all
persons who may be involved in the review and/or
decision-making process, of the legal obligation to avoid
gathering information which might tend to disclose an
applicant’s medical conditions.
 Public employers should exercise caution when seeking to
access information disclosed by public employees in social
media sites and/or disciplining employees for publishing
such information.

 Public employers must strive to find a balance between

protecting their own legitimate business interests and
allowing employees the freedom to express their
opinions and be themselves, particularly during “nonwork” time.
 Policies broadly banning a public employee’s
statements concerning the public employer should be
carefully evaluated.
 Public employers should issue policies that provide
forewarnings and accurately describe the higher
expectations that usually apply to public employees.

 Any such policies should be narrowly tailored to

address only legitimate, business-related areas, such as
restricting disclosure of trade secrets, confidential
information, and communications that may violate the
public employer’s discrimination and harassment
policies.
 Public employers should not ask an employee to
“friend” another employee or employment applicant
for the purpose of finding out information about the
other employee or employment applicant.

 Even with these safeguards in place, public employers

must be mindful of the employee’s free speech
protections and protections from unreasonable
searches and exercise caution before disciplining an
employee for speech that may be considered protected
by the First Amendment of the U.S. Constitution or for
conducting a search that may violate the Fourth
Amendment of the U.S. Constitution.

 THE

END

 QUESTIONS?

Public-Employee Privacy Rights in the Age of Social Media

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