Jared Wagner, shareholder at Green & Green, Lawyers, recently presented a continuing legal education seminar addressing the implications of social media usage and regulation as it pertains to public employers and employees. This is a particularly timely and relevant topic given recent instances in which public employees, and police officers in particular, have had their postings on social media used against them. Moreover, postings made on social media not only expose the employee to potential civil liability, but also may be used by a plaintiff to argue that the employer tolerated wrongful conduct or ignored a culture that was deliberately indifferent to wrongful conduct. In other words, an employee’s social media posts could be used against an employer to establish that the employer was the “moving force” behind a constitutional violation and thus civilly liable for it.
It is imperative for every public employer to have a written policy in place regarding social media usage by its employees. This is necessary to clearly set forth the guidelines for the employees so that they will hopefully follow them and to form a basis for discipline if they do not. Additionally, having a policy in place would allow the employer to argue that any offensive posts by its employees are contrary to that policy and thus not a valid basis for establishing deliberate indifference. However, if the policy is overly broad then the employer risks a First Amendment claim by its employees. Thus, any public employers who have adopted a written policy related to social media should reevaluate the policy based on recent decisions.
Green & Green is available to assist public employers with these issues, including providing a complimentary training seminar or consultation. Green & Green is also willing to either work with public employers to create a policy regarding social media usage by public employees or review and revise any current policies that they may have. Please contact Green & Green, and Jared Wagner specifically, if you have any questions regarding the implications of social media policy pertaining to public employers and employees or if you would like assistance with this or any other issue pertaining to municipal liability.