Most employers these days have established certain workplace policies regarding employee conduct online, especially in light of the enormous popularity of social media. The main concern in most cases is preventing social media from disrupting the workplace, as well as, damaging a business's reputation. However, disciplinary issues frequently arise when employees post controversial subjects about which the employer takes issue. These issues are most common with public employees. But the line between disrupting the workplace and violating the First Amendment can be blurred.
Hamm v. Williams
The legal issues in Hamm v. Williams began with the controversial and fatal police shooting of two unarmed African-Americans following a high-speed car chase in Cleveland. While off-duty, Cleveland police officer Hamm, using his home computer, posted Facebook comments criticizing the indictments of the officers involved in the shooting. Subsequently he commented on Facebook that someone found his original comments offensive and reported the posts to his supervisors.
Hamm was then investigated and it was decided that he violated the department rules against using social media to discuss a criminal investigation involving the department, as well as the rule against posting material that would “tend to diminish” public esteem for the department. Hamm was suspended for 10 days. Hamm brought a First Amendment retaliation against the city of Cleveland.
Government employees and the First Amendment
It is well known that government employees have a First Amendment right to speak, as private citizens, on matters of public concern. But, that constitutionally protected right to free speech needs to be balanced against a public employer’s interest in delivering public services. In Hamm's case, the court decided that he was speaking as a private citizen because he posted the Facebook comments while off-duty and using his home computer. Also, the court determined that the subject of his comments was a matter of “political, social or other concern to the community” and not just a “quintessential employee beef.”
Does the police department have a greater interest in regulating employee speech?
One of the arguments made by the police department is that, as a paramilitary organization whose responsibility is to maintain public safety and order, it has an interest in regulating employee speech, more than an ordinary public employer. For that reason, the Cleveland police department believed it was justified in taking the action it did in order to ensure its officers did not publicly criticize the investigation or place a stigma on the department. The court, however, rejected this argument. The court found no evidence that the officer's posts actually interfered with work in the department in any way.
What can we learn from Hamm?
Hamm should remind employers that automatic discipline as a reaction to controversial social media posts of an employee is not wise. If you are an employee in this situation, your employer should first conduct an investigation to determine whether there was an actual or potential disruptive impact on the workplace.
If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel Allen & Sinor , either online or by calling us at (205) 265-1880.