Facebook, Twitter, Instagram, Snap Chat, and a host of other social media tools are increasingly becoming a topic of conversation and disciplinary assessment in many Employee and Labor Relations sections. Many social media related issues are beginning to percolate through various administrative forums with a commensurate body of case law in the early development stage. Our advice to employees is to proceed with caution concerning both on and off duty social media postings or risk being the subject of disciplinary or adverse actions or even Worker’s Compensation claim denial. Without a doubt, we all have First Amendment Rights. However, these rights are not without restrictions for federal employees.
Our consultants are reporting a significant increase in inquiries from all levels of management officials across many agencies concerning employee social media activity. What became very apparent is that all levels of agency management are actively, and often aggressively, scanning all forms of social media used by subordinate employees and even their own peers. The popular professional networking site, LinkedIn, was even examined in a few reported instances; used to validate claimed credentials and skills of subordinate employees and even applicants. In fact, many suitability adjudicators are routinely checking LinkedIn profiles. Our consultants routinely receive copies of Facebook and Twitter status updates and photos in disciplinary or adverse action evidence files. An emerging trend is employees reporting other employees social media activity. Whereas some cases provide obvious nexus to employment, most are far outside the reach of the agency based on lack of nexus. For those unaware, the meaning of the term “nexus,” which is crucial to social media activity and federal employee discipline, is:
Nexus refers to a required connection between the cited employee conduct and/or behavior used as the basis for a disciplinary or adverse action AND the discernible negative impact such conduct or behavior has on agency operations.
It is important to realize no absolute First Amendment protections for a federal employee exist. If nexus is established to the employee conduct or behavior, the agency can take an action against the employee. It is also important to note that an agency does not need to have a specific policy in place supporting a proposed action.
During the last few years, administrative rulings involving social media and federal employees have surfaced. For example, in R.R. and U.S. Postal Service, 112 LRP 3566 (ECAB 12/19/11), the Employee’s and Compensation Appeals Board denied an employee’s traumatic injury claim based on information obtained from her Facebook account indicating she had run several long distance races when she claimed injury. In Blanchfield Army Community Hospital and AFGE Local 2022, 111 LRP 37334 (Fed. Arb. 04/07/11), an arbitrator upheld a nurse’s suspension based on her Facebook postings concerning fellow employees due to subsequent conflict at work. In Wadley v. Department of Homeland Security, 111 LRP 37272 (MSPB AJ 12/15/10), an Immigration Services officer was removed from his position for inappropriate conduct after making Facebook comments about a co-worker and co-worker’s ex-wife as well as copying pictures from fellow employee’s Facebook walls and reposting them to another suggestive Facebook Page. In In Knowlton v. Department of Transportation, Federal Aviation Administration, EEOC No. 012012642, 112 LRP 32530 (EEOC OFO 06/15/12), an EEO Complainant successfully established a coworker’s Facebook posting constituted part of ongoing work related harassment.
The immediate lesson is that while we are all free to engage social media tools for personal use, we should all keep our personal social media and work as separate as possible. Think twice about posting work related information or disparaging remarks about coworkers or supervisors.
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