What a curious world it is. There is a notion of the "timeliness" or "confluence of ideas," and I'm sure you've all experienced it: you have an idea rattling around in your head and, what do you know, you keep encountering things/people/incidents that reinforce, clarify and refine that idea. We also see it historically. For example, multiple people tend to come forward with similar technical innovations at about the same time. Well, it is quickly becoming apparent that the idea or innovation de jure is Facebook and other social media, and their implications for the workplace, both nationally and at the Albuquerque Police Department.
In January, in "my other Blog" (On Being a Neutral), I addressed the issue of whether neutrals (e.g. judges, ALJs, arbitrators, mediators) can safely use Face Book and other social media. A week or so later, the ABA Journal published a fine article on lawyer's use of social media. Then, there was mounting buzz regarding thr "NLRB Facebook firing case," the complaint for which had been issued on October 27, 2010, and which was set for hearing on January 25, 2011. This complaint dealt with an employee's being fired for posting negative comments about her workplace and supervisor, through Face Book while off duty. It ultimately settled on February 7, with the company's agreement to rewrite its social media restrictions, so as "not to restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work." See NLRB Settles Facebook Case.
The case and subsequent settlement has been a rallying point and of great concern to employers and employees alike. They high light the balancing act between off duty freedoms of speech and rights to engage in concerted action regarding terms and conditions of employment, as against the duty of loyalty owed to an employer and in light of the new "viral" environment. Compare Appleby and Gordon, "NLRB Post Frightening Message in Facebook Case," Lewis L. Matlby, " 'Free Speech' Rights in the Workplace," excerpt from 1996 National Academy of Arbitrator's Proceedings; and Konrad Lee, "Anti-Employer Blogging: Employee Breach of the Duty of Loyalty."
As these issues confront employers and employees around the nation (neigh, around the globe), it has recently become headline news in Albuquerque, New Mexico as well. Earlier this week, the ABQ Journal reported the discovery that Albuquerque Police Officers were posting highly risque work-related comments on at least one Officer's personal Facebook page, and on a APD Facebook fan page not maintained or endorsed by the APD. See Jeff Proctor, "APD Has Social Media Problem," ABQ Journal (Feb. 16, 2011), http://www.abqjournal.com/news/metro/162337298234newsmetro02-16-11.htm. As a result of these postings, the APD is reported to be reviewing its social media policy now. See KOB, Officer lists job as 'human waste disposal' on Facebook. That raises the question of whether and to what extent it may limit employees' off duty use of social media.
The APD issue, however, may be trickier than the private sector NLRB matter. Unlike the NLRB case, the APD officer's Facebook posts, at least according to reports made so far, do not appear to make inflammatory or derogatory comments about APD itself. Rather, they are reported as being made in reference to aspects of their job, such as suspects, officer shootings, and in one case the recent death of a prominent local attorney who had sued the APD in the past.
However, public employees' off-duty but work-related speech has been recognized as having unique restraints imposed on it. See Balancing Act: Public Employees and Free Speech (First Amendement Center, 2002); see also Garcetti v. Ceballos, 547 U.S. 410 (2006) (denying First Amendment and whistle blower protections for statements made pursuant to employee's position as a public employee, rather than as a private citizen). For instance, most public personnel work rules prohibit conduct that brings discredit to the the public employer, and this incident may be determined to have some tarnishing effect in the public's eye. Thus, private, off-duty comments and behavior that are made in the capacity of a public employee can be restricted.
Nonetheless, arbitration awards have split on whether and when to uphold terminations based on off duty conduct said to bring discredit to the employer--even decisions by the same Arbitrator! Compare, e.g., AFSCME Local 624 v. Albuquerque, FMCS 09-54735 (Bosland 2010) (city lacked just cause to terminate employee on basis of well-publicized arrest from job site on drug and gun possession charges), and AFSCME Local 624 v. Albuquerque (Bosland 2007) (city had just cause to terminate employee where he was observed on two occasions, while on duty and using a marked city vehicle, to be visiting a location where illegal drugs were being sold).
All in all, it will be interesting to see how, and in what forum(s), the instant issue is heard.
If you are interested in neutral services such as arbitration, mediation or contract ALJ services, in labor/employment or other areas of the law, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
