You may have heard about the Teamsters’ complaint, filed with the NLRB, which alleges, in part, that a Connecticut employer’s social-media policy constitutes an unfair labor practice under Section 8 of the National Labor Relations Act. In short, the Union contends that the employer, American Medical Response Team, has a social-media policy that prohibits employees from disparaging their supervisors online, which, the Union contends, is overly broad so as to effectively preclude employees from engaging in protected concerted activity of discussing workplace conditions and terms of employment. The Union also contends that the employer disciplined an employee pursuant to the policy when she and other employees disparaged their supervisor on the disciplined employee’s Facebook page.
Well, the Teachers’ Union in Manatee County, Florida, has filed a similar complaint-this one alleging that a proposed social-media policy is overly broad so as to violate their right to free speech pursuant to the 1st Amendment.
The First Amendment protects individuals from government action-which means that non-government employees (i.e., those employed in the private sector), cannot make out a constitutional claim based on free speech. In the public sector, though, such as in public-school districts, employees do have constitutional rights. But those rights are not unlimited.
The basic free-speech analysis asks three questions. First, is the speech on a matter of public concern? If not, constitutional protections do not attach. For example, if the policy prohibits employees from discussing standard workplace grievances, such as work schedules or budget issues, the speech is not of a public concern and not protected.
Second, is the employee speaking as a citizen or as an employee? This step of the analysis is relatively new and derives from the Supreme Court’s Garcetti decision. The newness of the question means that the courts are still navigating the exact contours and the decisions vary greatly. Generally speaking, though, if an employee speaks only to his or her supervisor or coworkers, as opposed to, for example, writing a letter to the editor of a local newspaper, the speech is said to have been made as an employee and is not therefore protected.
Third, if the speech is on a matter of public concern and is made by an employee speaking as a citizen, the courts conduct a balancing test to determine whether the government’s interest in maintaining an effective, non-disruptive workplace outweighs the employee’s right to speak freely.
If the Florida case proceeds, the court will have to determine whether the proposed policy has the effect of prohibiting what would otherwise be protected speech. One problem for the Union, though, is whether the case will proceed at all. It is only a proposed policy, so there may be an issue of justiciability-whether the court has jurisdiction to hear the case when there has not yet been any harm to the plaintiff. Some may argue that, by merely filing suit instead of trying to negotiate the terms of the policy, the Union has acted in an unreasonable manner designed more for media attention than to effectuate meaningful change. We’ll have to wait to see what the court decides.