social media - iaff522.orgiaff522.org/docs/mastagni social media presentation.pdf · social media:...

SOCIAL MEDIA: New Legal Rights and Responsibilities

for Firefighters, Unions, and

Employers

Presented by David E. Mastagni, Partner

Mastagni, Holstedt, Amick, Miller & Johnsen

[email protected] (916) 446-4692

2012 Michael D. McNeill Western Regional Fire

Fighters Conference, Reno, Nevada


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


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.”


FIREFIGHTERS’ FIRST

AMENDMENT RIGHTS

• “Internet exceptionalism”: the

notion that the Internet is a special

and unique communications

medium to which special rules

should apply.



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



AMENDMENT RIGHTS

Garcetti v Ceballos: First

Amendment exception for official,

job-duty employee speech.



AMENDMENT RIGHTS



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.”



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.”


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.



Link: http://www.youtube.com/watch?v=dHvhCeh8UEg

http://www.youtube.com/watch?v=dHvhCeh8UEg



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)



Limits on Privacy Rights: City of San Diego v. Roe

& San Diego Unified School District v.

Commission on Professional Competence


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.”



UNION RIGHTS

Understanding “concerted activity” with

social media: Hispanics United of Buffalo

(2010) NLRB Case No. 3-CA-27872.



UNION RIGHTS Hispanics United of Buffalo (2010) NLRB

Case No. 3-CA-27872.



UNION RIGHTS

NLRB Report of the Acting General Counsel

Concerning Social Media Cases, NLRB

Memorandum 12-59, May 30, 2012



UNION RIGHTS

Example: “Don’t release confidential

guest, team member or company

information.”

Approved

or Rejected?



UNION RIGHTS

Example: “Never share confidential

information with another team

member unless they have a need to

know.”

Approved

or Rejected?



UNION RIGHTS

Example: “Respect copyright and

intellectual property laws.”

Approved

or Rejected?



UNION RIGHTS

Example: “You may not communicate

with the press without prior

permission of [Employer].”

Approved

or Rejected?



UNION RIGHTS

Example: “You may not represent any

opinion or statement as the policy of

[Employer].”

Approved

or Rejected?



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?



UNION RIGHTS

Example: “Do not make disparaging

or defamatory remarks about

[Employer], employees or officers.”

Approved

or Rejected?


FIREFIGHTER AND AGENCY

LIABILITY

Link: http://www.youtube.com/watch?v=kySsF6agUOU

http://www.youtube.com/watch?v=kySsF6agUOU


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.


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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