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SOCIAL MEDIA: New Legal Rights and Responsibilities
for Firefighters, Unions, and
Employers
Presented by David E. Mastagni, Partner
Mastagni, Holstedt, Amick, Miller & Johnsen
davidm@mastagni.com (916) 446-4692
2012 Michael D. McNeill Western Regional Fire
Fighters Conference, Reno, Nevada
Mastagni, Holstedt, Amick, Miller & Johnsen
1. Firefighters’ First Amendment Rights
2. Firefighters’ Privacy Rights
3. Concerted Activity and Union Rights
4. Firefighter and Agency Liability
5. Social Media as Evidence
Mastagni, Holstedt, Amick, Miller & Johnsen
LEGAL ISSUES WE’LL COVER:
“Congress shall make no law ...
abridging the freedom of speech ...
and to petition the Government for
a redress of grievances.”
Mastagni, Holstedt, Amick, Miller & Johnsen
FIREFIGHTERS’ FIRST
AMENDMENT RIGHTS
• “Internet exceptionalism”: the
notion that the Internet is a special
and unique communications
medium to which special rules
should apply.
Mastagni, Holstedt, Amick, Miller & Johnsen
FIREFIGHTERS’ FIRST
AMENDMENT RIGHTS
Pickering-Connick Test:
1. Whether the employee spoke on a matter of public concern (public importance).
2. Employer’s interest in ensuring an efficient, disruptive-free workplace
Mastagni, Holstedt, Amick, Miller & Johnsen
FIREFIGHTERS’ FIRST
AMENDMENT RIGHTS
Garcetti v Ceballos: First
Amendment exception for official,
job-duty employee speech.
Mastagni, Holstedt, Amick, Miller & Johnsen
FIREFIGHTERS’ FIRST
AMENDMENT RIGHTS
Mastagni, Holstedt, Amick, Miller & Johnsen
FIREFIGHTERS’ FIRST
AMENDMENT RIGHTS • Chico Police Officers' Assn. v. City of Chico
(1991) 232 Cal.App.3d 635.
• “[T]he Chief is standing between you and a contract,
with his hands in your back pockets: squeezing your
wallet on one side, trying to take your 4/10 on the other
side, and all this while you thought you were simply
getting—uh, the shaft. Resist for now the temptation to
revolt.”
Mastagni, Holstedt, Amick, Miller & Johnsen
FIREFIGHTERS’ FIRST
AMENDMENT RIGHTS
• Marshall v. City of Atlanta (11th Cir. 1985) 770
F.2d 174
• “[F]ollowing a conference with his superiors concerning
a doctor's certificate, plaintiff referred to his superiors as
“goddam mother fuckers,” “downtown lackeys,” and
“sons of bitches” apparently in front of his co-workers.”
Mastagni, Holstedt, Amick, Miller & Johnsen
FIREFIGHTERS’ PRIVACY RIGHTS
The Stored Communications Act & Pietrylo v.
Hillstone Restaurant Group (D.N.J. Sept. 25,
2009).
The Stored Communications Act prohibits
employers, from "knowingly, intentionally or
purposefully" accessing social media sites without
authorization. Plaintiffs can get damages, punitive
damages, and attorneys' fees and costs.
Mastagni, Holstedt, Amick, Miller & Johnsen
FIREFIGHTERS’ PRIVACY RIGHTS
Link: http://www.youtube.com/watch?v=dHvhCeh8UEg
Mastagni, Holstedt, Amick, Miller & Johnsen
FIREFIGHTERS’ PRIVACY RIGHTS
Mastagni, Holstedt, Amick, Miller & Johnsen
FIREFIGHTERS’ PRIVACY RIGHTS
Laws Protecting Employees Social Media Privacy:
• Maryland Senate Bill 433 (passed)
• Illinois Right to Privacy in the Workplace Act (introduced)
• California Assembly Bill 1844 (passed state assembly)
• California Senate Bill 1349 (introduced)
• New Jersey State Assembly Bills A2878 and A2879 (introduced)
• Minnesota H.F. 2963 (introduced)
• Federal Password Protection Act of 2012 (introduced)
Mastagni, Holstedt, Amick, Miller & Johnsen
FIREFIGHTERS’ PRIVACY RIGHTS
Limits on Privacy Rights: City of San Diego v. Roe
& San Diego Unified School District v.
Commission on Professional Competence
Mastagni, Holstedt, Amick, Miller & Johnsen
CONCERTED ACTIVITY AND
UNION RIGHTS
“Employees have the right to act together
for their mutual aid and protection, even if
they are not in a union.”
Mastagni, Holstedt, Amick, Miller & Johnsen
CONCERTED ACTIVITY AND
UNION RIGHTS
Understanding “concerted activity” with
social media: Hispanics United of Buffalo
(2010) NLRB Case No. 3-CA-27872.
Mastagni, Holstedt, Amick, Miller & Johnsen
CONCERTED ACTIVITY AND
UNION RIGHTS Hispanics United of Buffalo (2010) NLRB
Case No. 3-CA-27872.
Mastagni, Holstedt, Amick, Miller & Johnsen
CONCERTED ACTIVITY AND
UNION RIGHTS
NLRB Report of the Acting General Counsel
Concerning Social Media Cases, NLRB
Memorandum 12-59, May 30, 2012
Mastagni, Holstedt, Amick, Miller & Johnsen
CONCERTED ACTIVITY AND
UNION RIGHTS
Example: “Don’t release confidential
guest, team member or company
information.”
Approved
or Rejected?
Mastagni, Holstedt, Amick, Miller & Johnsen
CONCERTED ACTIVITY AND
UNION RIGHTS
Example: “Never share confidential
information with another team
member unless they have a need to
know.”
Approved
or Rejected?
Mastagni, Holstedt, Amick, Miller & Johnsen
CONCERTED ACTIVITY AND
UNION RIGHTS
Example: “Respect copyright and
intellectual property laws.”
Approved
or Rejected?
Mastagni, Holstedt, Amick, Miller & Johnsen
CONCERTED ACTIVITY AND
UNION RIGHTS
Example: “You may not communicate
with the press without prior
permission of [Employer].”
Approved
or Rejected?
Mastagni, Holstedt, Amick, Miller & Johnsen
CONCERTED ACTIVITY AND
UNION RIGHTS
Example: “You may not represent any
opinion or statement as the policy of
[Employer].”
Approved
or Rejected?
Mastagni, Holstedt, Amick, Miller & Johnsen
CONCERTED ACTIVITY AND
UNION RIGHTS
Example: “Harassment and bullying
that would not be permissible at work is
not permissible between co-workers
online, even after hours from home.”
Approved
or Rejected?
Mastagni, Holstedt, Amick, Miller & Johnsen
CONCERTED ACTIVITY AND
UNION RIGHTS
Example: “Do not make disparaging
or defamatory remarks about
[Employer], employees or officers.”
Approved
or Rejected?
Mastagni, Holstedt, Amick, Miller & Johnsen
FIREFIGHTER AND AGENCY
LIABILITY
Link: http://www.youtube.com/watch?v=kySsF6agUOU
Mastagni, Holstedt, Amick, Miller & Johnsen
FIREFIGHTER AND AGENCY
LIABILITY Christos Catsouras v. California Highway Patrol
(2010) Cal.App.4th 856.
Public Safety Officers can be liable for
negligence and intentional infliction of emotional
distress for distribution of accident photos.
Settled for $2.36 million.
Mastagni, Holstedt, Amick, Miller & Johnsen
SOCIAL MEDIA AS EVIDENCE Manasco et al v. Board of Police Commissioners et al.
(2011, E. D. Mo.)
“[T]he Court finds that production of Plaintiffs’ phone
records of text messages with image attachments that were
sent by Plaintiffs between March 8, 2011 and March 18,
2011, as compelled by the IAD’s order, is reasonable and
does not violate Plaintiffs’ Fourth Amendment rights.
Therefore, the Court denies Plaintiffs’ and Intervenors’
TRO and injunctive requests as to these records.”
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