From time to time, it’s important to have a refresher on policies we know or think we know. A few years ago, I wrote an article on social media and the importance of state workers understanding the limits of their ability to critically comment about management on social media sites in their capacity as a state employee. Surprisingly, since then, I have seen numerous — and in my opinion, too many — disciplinary cases in which an employee posted information which violated the social media policy often resulting in termination.
A good starting point for this review is the analysis by the United States Supreme Court regarding a state employee’s free speech rights under the state and federal constitution. The Court’s analysis involved a balancing test between the employer’s interest in running the business of the state efficiently and free from disruptive accusations versus a state employee’s right to engage in constructive criticism of the state’s business. If, as the Supreme Court has ruled, a state employee engages in conduct that undermines the integrity of a state office or unduly disrupts morale, the employee may be subject to discipline. In short, a state employee does NOT have an unrestricted right to post anything he or she wants about management.
The Department of Human Resources (DOHR) enacted a policy, Personal Use of Social Media, and requires all employees to know and abide by the policy. The policy sets out standards which control acceptable content by a state employee on their social media sites, even though the sites are personal and not operated by the state.
Among the standards contained in the policy are these important provisions:
- The lines between public and private, personal and professional are blurred in online social networks, and whatever you post on your personal account will likely reflect on the state.
- A personal social media account, while an appropriate place to share personal opinions, is not a place to present an individual opinion on an official agency view.
- If you list the State of Tennessee as your employer on your personal social media profile, any information you post will be held to a higher standard of scrutiny.
The Supreme Court’s interpretation of the freedom of speech right for governmental employees is reflected in the intent of the DOHR social media policy.
Another aspect of social media posting concerns the release of confidential information in violation of state and federal law. Many state employees handle confidential information which is protected against disclosure by state law and punishable by criminal prosecution including fine and incarceration. Violation of state confidentiality laws may also subject the employee to civil liability by the affected party for unauthorized disclosure of confidential information. State employees working in the following departments need to be especially cautious about handling confidential information: TennCare, Intellectual and Developmental Disabilities, Children’s Services, Mental Health and Substance Abuse Services. Additionally, anyone who has access to HIPAA protected information must guard against intentional or accidental publication.
Let me leave you with a few guidelines for determining whether to post certain information on your social media site:
- Confidential, health care and juvenile information must NEVER be posted online.
- Any indication on your site that you are a state employee, including a picture in your uniform, will cause DOHR to hold you to a higher standard regarding whether the posted information is improper.
- If in doubt, DON’T publish it.
As regards critical comments about management, take your concerns directly to an appropriate state official such as a supervisor, HR director, department head or commissioner. Another solution is to bring your concerns to TSEA and let us investigate it, as needed.
By Jonathan Stephens
TSEA Staff Attorney