I reached out to Joyce Hottinger and Laura Kushner from our Human Resources (HR) department for a Q&A on this timely topic. In addition to assisting LMC and LMCIT with our organizations’ questions, our HR team also provides information to our membership including EMS, fire, and police departments.
Here is our conversation:
Question: In your line of work, you’ve likely seen some otherwise smart folks become pretty stupid using social media and ruining their careers. Can you tell us the worst instance you’ve seen or heard about?
Answer: It’s so hard to choose, and “worst” is a relative term. Worst from whose perspective—the employee or the employer? But if I have to choose, how about the person who tweeted that she was just taking a job offer for the money because the work itself sounded dull and boring, then had the job offer rescinded because her new boss saw the tweet.
Question: Why is this not protected as a freedom under the first amendment?
Answer: Well, I’m not an attorney, but my understanding is that in some cases it is a protected freedom—but not in all cases. So, an employee might be protected if they are commenting on matters of public concern, just like any other taxpayer. For example, if an employee posts on social media that they are less than pleased about the use of tax dollars for a basket weaving class at the Community Center, that might be protected. Posting comments that your supervisor “wears clothes from the 1970’s and that’s just weird” is another story.
Public employees may also be protected when they are communicating their views on working conditions or their pay and benefits, particularly as part of a group activity involving coworkers. To delineate the issue: an employee’s comments on social media are probably not protected if they are mere gripes and not made in relation to group activity among employees.
Question: Can a first responder post information about a call they handled, even if they are not expressing an opinion?
Answer: Generally speaking, I’d say no because in most cases the employee would not have had access to the information unless it was obtained through the scope of their job duties. It’s also very likely that information is classified as non-public information under MN Data Practices, and in some cases it may also be considered Protected Health Information under HIPAA.
Several cities have implemented policies notifying first responder personnel that the images they come across in their duties are owned by the city—so they need to be passed along to the correct personnel if needed as part of an investigation, for example, and in no way are to be used for personal social media sites. While we are talking about policies, remember it’s not always enough to have the policy: training employees about what is expected and what’s not okay is equally important.
Question: Is this a case-by-case situation depending on the information posted?
Answer: Yes, you nailed it. Whoever is making the judgment call—be it an arbitrator, a court, a jury, a civil service commission, or the city manager—they will all have to balance the employee’s rights and freedoms against the city’s interest in delivering its services to residents. Again, very complex stuff.
Question: What guidelines do you recommend for EMS, fire, and police responders and their administrations?
Answer: First and foremost, develop a policy and follow it. (The League has a model social media policy and a model social media policy for fire departments and EMS, as well as helpful information on the Minnesota Government Data Practices Act in the Fire Department Management and Liability memo.) Next, educate your employees about what the policy says, and be prepared to get help when situations come up. I haven’t gotten a call yet at the League on a social media situation that wasn’t a little bit tricky. I nearly always get help from our attorneys on these issues.
Bottom line: employees should be thoughtful about what they put on social media. Don’t hit that “post” or “tweet” button until you’ve thought through any potential consequences. And supervisors should be careful about their reactions when it comes to social media—in other words: don’t react right away, take your time, and get some help.
A big thanks to Laura and Joyce for their contributions to this topic!
Up Next: The “Waffle House Index”
Stay safe,
Rob
