Federal Disciplinary Issues and Facebook: Issues to be Aware of at Work in Regards to Social Networking
11/15/2011
By John V. Berry, www.berrylegal.com
We have seen social networking issues begin to arise in our legal practice in the context of our representation of Federal employees in the workplace. These issues can come in all forms and Federal employees are cautioned to be careful both at work and at home with respect to information posted on such websites so that it does not become a disciplinary issue later.
Issues that are Starting to Arise
Federal agencies are starting to use information posted on Facebook, Twitter, Linked In and other social networking sites when they discipline Federal employees.
Anything that is posted on a social networking site like Facebook or Twitter can potentially be brought back into the Federal workplace. Some Federal agencies have already begun the process of attempting to move Facebook and other social media websites into the Federal disciplinary arena. Vidal v. Army, 2011 MSPB Lexis 4788 (Aug. 5, 2011) (Agency removing employee because of alleged anxiety producing comment on Facebook that was reported at work).
Other Federal agencies have also attempted to discipline Federal employees where they have called in sick, but then used posted information on social networking sites to show that the employee was untruthful in using sick leave. Hunter v. Dep’t of Navy, 2011 MSPB Lexis 3159 (May 11, 2011) (involving allegation that the appellant had called in sick to watch the Superbowl but had posted information on Facebook that he was not really sick).
Other issues that seem to be developing (but where we have not seen reported MPSB cases yet) is where Federal employees are found to have posted comments to social networking websites while at work (on duty). All sorts of potential issues could develop in such a situation. If an agency is looking to discipline an employee, they could potentially charge them for “time card” issues alleging that they were receiving pay but not actually working or perhaps for neglecting their duties while they were on Facebook, Twitter, etc.
The Use of Facebook and Other Social Networking Websites by Federal Agencies
Typically, the use of Facebook and other social media websites by Federal human resources officials and supervisors at Federal agencies has not been in the form of direct monitoring (which would be problematic and potentially illegal). The real issue that has developed in the context of Federal employment is that other co-workers often times print out the postings made by other Federal employees and then report them.
Sometimes these individuals, who are “friends” or connections on social networking sites allege that the Federal employee involved has posted inappropriate, discriminatory or even harassing comments. The most likely situation would be where a Federal employee posts inappropriate or angry comments about their supervisor and another co-worker prints out the comments and brings them into work.
Once this information is in the hands of the Federal agency, often times they can find a legitimate connection to incorporate the issue into a disciplinary or even adverse action (removal). While there is a right to some privacy, often times a connection (or nexus) to the Federal workplace can be found to enable the Federal agency involved to take disciplinary action related to off duty activites. The MSPB and the Federal Circuit have generally held that off duty activities can be subject to discipline where it could cause the public or co-workers, to question or lose confidence in the Federal agency involved. See Stump v. Department of Transportation, 761 F.2d 680, 681-82 (Fed. Cir. 1985).
Conclusion
Be careful what you post on social networking sites. Also, be very careful about sharing access to your social networking sites with others at work in the Federal workplace. If a Federal employee or supervisor finds themselves in a difficult situation as a result of using social networking websites, they should contact an attorney familiar with these types of Federal employee issues to advise them in how to best to defend against disciplinary investigations or disciplinary actions that result.