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2012 2013 33: 84 originally published online 8 MayReview of Public Personnel Administration

Willow S. Jacobson and Shannon Howle TuftsTo Post or Not to Post: Employee Rights and Social Media

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443265 ROP33110.1177/0734371X12443265Jacobson and TuftsReview of Public Personnel Administration

1University of North Carolina, Chapel Hill, NC, USA

Corresponding Author:Willow S. Jacobson, Associate Professor, School of Government, MPA Program, The University of North Carolina at Chapel Hill, CB# 3330 Knapp-Sanders Building, Chapel Hill, NC 27599-3330, USA. Email: [email protected]

To Post or Not to Post: Employee Rights and Social Media

Willow S. Jacobson1 and Shannon Howle Tufts1

Abstract

Employing an interdisciplinary approach this research examines the issue of employee rights in relation to social media policies both on and off the job. The proliferation of the use and forms of social media in the past 5 years has been extensive and governments are seeking to capture its power as a communication and engagement resource. Meanwhile, governments struggle to create appropriate, legal, and meaningful policies related to employee usage and behavior. Social media policies are analyzed with attention to the rights of employees. Content analysis of state government policies provide an overview of the current state of practice and highlights issues of public employee rights. The article includes a discussion of key issues of employee rights, recommendations for practice, and identifies future research needs.

Keywords

social media, employee rights, First Amendment, Fourth Amendment

IntroductionIssues of employee conduct related to social media sites are filling the courts, media articles, and watercooler conversations. The issue of employee conduct on and off duty is not a new concern, but this new medium is offering additional and new twists on old challenges. Recent news stories about employee rights and social media use include tales of misconduct, coupled with concerns about legal rights. For example, in Savannah, Georgia, a female firefighter was terminated due to personal photographs

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Jacobson and Tufts 85

placed on her private MySpace page. The chief contended that the firefighter was using her role as a Savannah firefighter to “promote herself as a model for other per-sonal publicity reasons,” which violated departmental policy (Skutch, 2009). The court upheld the termination and denied the firefighter’s claims of discrimination and First Amendment protection. In another case, a Staten Island HR manager was fired due to falsely claiming to be serving jury duty, whereas her Facebook status indicated she was on vacation in Baltimore (Slattery, 2010). Beyond losing her job, she was arrested, charged with jury duty summons forgery, and faces up to 14 years in prison for her crime.

The aforementioned examples speak to a range of issues, including First Amendment rights, Fourth Amendment rights, conduct policies, and discipline and termination practices. At the same time, the use of social media for employers of all kinds is being promoted and greatly lauded. The benefits to citizen participation, transparency, accountability, and customer service are pushing governments to adopt the use of social media, making it a part of the work expectation for some employees (Mergel, 2010). Many of these perceived benefits are derived from success found with e-government efforts to utilize technology in order to improve efficiency and effectiveness and facil-itate service delivery (Welch, Hinnant, & Moon, 2005). Employee challenges for man-aging both professional work–related use of social media and personal off-duty use of social media are plentiful and add another layer of complexity to the traditional e-government literature by moving the focus from the citizen to the employee.

The proliferation of social media forms and use has been unprecedented (Lenhart, Purcell, Smith, & Zickuhr, 2010). Social media tools, practices, and abuses create additional challenges within workplaces. This new medium does not change the nature of employees’ rights, conduct, or expectation, but it does change the medium, the reach, the speed, and the permanency of their actions. Many organizations are still trying to determine how and whether they will address these issues within their poli-cies. Although policies may act to restrict the specific behaviors and conduct of employees, they also provide clarity of what is permitted, what consequences can be expected, and what protections are in place. Much of the previous research has focused on creating policies that protect the employer (Cohen & Cohen, 2007). Little research has focused on the question from the employee’s perspective. Although the two inter-ests, employer and employee, should not be mutually exclusive, it is important to understand how these policies affect those they apply to. This article examines how social media policies at the state level are designed and structured, specifically relating to the treatment of the rights of employees working in state governments in the United States. This research makes contributions to HRM, employment law, and IT literature as it relates to the locus of social media policy design and implementation. The analy-sis allows for an investigation into the standards for social media policies based on current practice, case law, and strategic management choices. The analysis and recom-mendations are made with careful consideration to the tensions present in this emerg-ing area for employers’ and employees’ rights, behaviors, and effectiveness.



86 Review of Public Personnel Administration 33(1)

First, a review of literature on social media is provided. Then, a review of the two key areas of employee legal rights most often discussed in relation to social media are presented: First and Fourth Amendment protections. Issues related to public sector employee conduct are also reviewed. A discussion of the methodology is provided and, finally, the results and a set of future research recommendations conclude the article.

Literature ReviewSocial Media

As governments have progressed into the digital age, much of the focus has been on citizen engagement and service. An emerging part of the e-government movement includes social media and its role in meeting citizen needs for transparency, account-ability, accessibility, and participation (Bertot & Jaeger, 2010). Social media has been defined as “a group of Internet-based applications that build on the ideological and technological foundations of Web 2.0, and that allow the creation and exchange of user-generated content” (Kaplan & Haenlein, 2010). The hallmark applications found in the social media landscape include Facebook, Twitter, LinkedIn, Flickr, MySpace, Yammer, and hundreds of others (List of Social Media and Social Networking Sites, n.d., http://traffikd.com/social-media-websites/).

Due to the massive proliferation of social media, its use by both individuals and organizations for personal and professional reasons has come to the forefront as a criti-cal issue at the intersection of human resources and information technology. Facebook is consistently viewed as the leader among social media tools, and recent metrics solidify its utility and importance in the lives of individual and organizational users. Current estimates place the number of Facebook users at more than 800 million, with more than 51% of all Internet-using people 12 and older in the United States having a Facebook account (Facebook, 2011). With more than half of the American population participating on Facebook, the platform offers governments a unique opportunity to efficiently engage and inform citizens in lean economic times (Grossman, 2010). Governments have been capitalizing on the opportunity for citizen communication and connection offered by the social media outlets. In fact, a recent study conducted by stateline.org indicates that 47 of the 50 U.S. governors have a social media pres-ence for official governmental communications, with Facebook pages and Twitter accounts being the most frequently used tools (Mahling, 2011).

Currently, there remains a knowledge gap as neither the egovernment nor the HR literature address the role of employees and employee conduct with respect to this new form of communication and engagement and there are many unanswered questions for government organizations around how to manage both social media and employee. Rosenbloom and Bailey (2003) underscore the importance of understanding the legal rights of employees due to the personal liability a state or local government manager may take on for infringing on the constitutional rights of an employee. Too often, the IT department is being tasked with managing employee access and participation in




social media endeavors through technical solutions without management involvement or consideration of human resources issues and challenges. The decision to utilize technology to mediate a nontechnical, HR issue is problematic at best and creates the potential for a multitude of legal challenges. This research seeks to add to the IT knowledge base through a qualitative review of social media policies that highlights trends and promising practices as well as investigates associated legal issues with respect to employee rights and social media.

In addition to the high interest in utilizing electronic tools to enhance government access and transparency as noted in the e-government literature, technology has changed how HR professionals do and conceptualize their work. For example, the movement to using technology in the hiring process has been a major change and a focus of much research (Llorens & Kellough, 2007; Rubaii-Barrett & Wise, 2007). This effort to use and leverage technology as a tool for better management again sets the stage for greater use in a professional capacity. The research also provides contri-bution to the HR literature, providing a holistic view of policies and procedures related to employee rights and social media.

The preponderance of social media literature focuses on both its promotion and risk of use in government (Bertot & Jaeger, 2010). Conversely, research related to social media policies, particularly governmental policies, is limited and few empirical stud-ies exist. The Center for Technology in Government authored a white paper articulat-ing the eight essential elements for governmental social media policies in May of 2010 (Hrdinová, Helbig, & Peters, 2010). The elements outlined in the paper provide the initial framework for assessing state-level social media policies with respect to employee conduct and rights. Beyond broadening the knowledge base surrounding governmental social media policy design and implementation, this research speaks to the issues related to employee rights, an often-overlooked but critically important component of social media policy formulation and application. The following section will highlight major trends and research on public employee rights.

Public Employee RightsDaley notes that “Public employment values revolve around three concepts: the merit principles, political responsiveness, and the protection of individual rights. . . . The protection of individual rights emphasizes the importance and value attached by our social contract to each and every individual” (2002, p. 247). Employee rights, as defined in this research, include a broad operational construct, including legal bases, such as First and Fourth Amendment rights, on-duty acceptable conduct, and off-duty acceptable conduct. Harassment and discrimination are also included in the opera-tional framework, as they are critical issues within the traditional employee rights literature with organizations having a responsibility to provide their employees a safe workplace (Daley, 2002; Rowan, 2000).

Public sector employees, the focus of this research, maintain a unique relationship with their employer as both employee and citizen (Allred, 1999; Daley, 2002; Nigro, Nigro, & Kellough, 2007; Pynes, 2009; Rosenbloom & Bailey, 2003). Daley notes,




Although all employees possess legal right vis-à-vis the employment relation-ship or “contract,” those in the public sector are afforded even greater protec-tions. Public employees are both employees and citizens. As citizens, they are extended the basic protection that the federal and state constitutions provide citizens against abuse of government power. In essence, the Bill of Rights becomes part of the employment contract. (2002, pp. 235-236)

Public employers differ in how they balance their responsibilities in both employer–employee and government–citizen relationships, compared to their private sector counterparts. Rosenbloom and Bailey concisely summarize the competing concerns present in the current public service model:

This model balances three often competing concerns: 1). The public employee or applicant’s interests as a member of the political community in exercising constitutional rights and enjoying constitutional protection from arbitrary or repressive treatment by the governmental employer; 2) the government’s inter-est as an employer in having an efficient and effective workforce; and 3) the public’s interest in the operation of public administration and government more generally. (2003, p. 30)

Rosenbloom and Bailey go on to clarify that the courts may side with either the government or employer and depend on how the judge applies the model to the context and circumstances.

First Amendment and Public Sector EmployeesBecause of the unique relationship with government, public sector employees have a different expectation of their free speech rights compared to their private sector coun-terparts. General First Amendment protection in the public sector applies for speech at work, away from work, spoken speech, and speech that is disseminated in other forms of communication; the form of speech is not legally relevant. There is a three-prong test for determining whether a public employee’s speech is covered under the First Amendment (i.e., freedom of speech; McLaughlin, 2010). This is traditionally called the Pickering test, as it arose from Pickering v. Board of Education (1968), where the U.S. Supreme Court extended protections to public employees’ speech when certain conditions were met because of the employees’ ability to add substantive contribution to the “free and open debate” of the citizenry (Rosenbloom & Bailey, 2003). First, the speech must touch on a matter of public concern. To illustrate this test of public concern, it is reasonable to assume that an employee complaining about his or her desk color would not meet the first prong of the test as it is not a matter of public concern, whereas an employee reporting financial fraud or noting an issue of public safety would meet the first test. Second, the speech must fall outside of the employee’s job duties, per Garcetti v. Ceballos (2006). For example, if a Public Information Officer, whose job is to serve as the official spokesperson of the jurisdiction,




chooses to use that position and platform to speak against the governing board’s deci-sion about a controversial issue, the speech would fail the test as established in the Garcetti case.

Third, the employee’s interest in free speech must outweigh the government’s interest in efficient/effective provision of services. For the third prong, the courts will consider whether the First Amendment interest of the employee outweigh that of the efficient and effective provision of services by the government. An example of this balancing test in action is found in Baird v. Cutler (1995), where a court found that sarcastic speech by a senior city attorney referencing a possible assassination of Ross Perot was not protected because the government’s interest in protecting its ability to control employee commentary on important policy issues, that is, gun control, was paramount to the attorney’s interest in free expression (McLaughlin, 2010).

In recent cases related to social media and public employees, there have been two significant trends related to this balancing test. If an employee is posting on a personal Facebook account while at work about matters of public concern, then it is likely that the courts would find such speech more disruptive (and likely unprotected) than an employee posting from home during nonwork hours (Nolo, 2011). In addition, the more involved in policy issues an employee is, the more the government’s interest will override the employee’s First Amendment rights. Finally, although the balance is dif-ferent, the structure of the law is the same regardless of on- or off-duty status. Heaton (2011) underscores the challenge many governments are facing regarding writing and implementing appropriate social media policies that do not infringe on employee’s First Amendment rights through a contentious policy implemented in Kent County, Delaware, that limited employees’ off-duty options on social media sites use. In this situation, a consulted law professor expressed the opinion that the ban on speech pro-posed by this new policy would limit employees’ free speech rights and inappropri-ately applies the Garcetti case.

Although social media does not fundamentally change any part of what constitutes protected employee speech, it does allow for more rapid and lasting record of an employee’s behavior. In fact, the courts are not in agreement about protected public employee speech via social media, evidenced by a recent ruling upholding an employ-ee’s freedom of expression rights in a situation that heretofore was not protected. In Mattingly v. Milligan (2011), an employee in a county clerk’s office posted negative commentary on her Facebook page about a newly elected county clerk who had laid off some staff. Her commentary resulted in her termination and subsequently, she sued for violation of her First Amendment rights. Historically, complaints about a boss’ actions, assuming the actions are legal, would not be protected speech. But the court upheld her rights, using the reasoning that the speech was made in the public domain, citizens who were Facebook friends of the plaintiff offered commentary about the lay-offs, and the posting led to complaints from six citizens to the Clerk’s Office and media coverage (Brown, 2011). This case highlights the emergent nature of intersec-tion between the law and social media and demonstrates how the definition of “matters of public concern” may be altered by this new medium for communication.




Fourth Amendment and Public Sector Employees

Public employees also have an expectation of protection under the Fourth Amendment that is distinct from private sector employee protections. Government employees have a protection against intrusion, when there is a legitimate expectation of privacy, and against unreasonable searches and seizures. An expectation of privacy can extend to computers, electronic devices, stored communication, and so on, by virtue of allowing password protections and the like. However, employers can remove an expectation of privacy by creating and consistently applying policies on the issue of privacy. For example, employers can routinely remind employees that their use of email or other electronic forms of communication are subject to monitoring and no expectation of privacy exists (Tabak & Smith, 2005). City of Ontario v. Quon (2010) further strengthened the government employer’s right to limit or remove expectations of privacy with the use of disclaimers, such as policies indicating monitoring or no right to privacy. In Fourth Amendment cases, the courts employ a balancing test that looks at the employees’ privacy rights compared to the importance of government interests, particularly the reasonableness of a search with respect to work-related purposes for the said search or seizure. The issue of privacy is a central concern when it comes to employees use and conduct on social media.

Employee Rights: On- and Off-Duty ConductWhen considering the rights of employees, the expectation is that employees have rights beyond those constitutionally mandated to citizens. Employees should be able to expect that employers will create a safe and harassment-free work environment (Daley, 2002; United States Equal Employment Opportunity Commission, 2011). To do this, there is a need for of appropriate policies, reporting mechanisms, and enforce-ment actions (Eberhardt, Moser, & McFadden, 1999). There is still a long way to go in creating workplaces in which sexual harassment, discrimination, and violence are no longer issues; managers are finding that with increased electronic communication mechanisms, there have been an associated increase of electronic harassment (McMullen, 2011; Tyler, 2008). Some of the harassment has been indirect, in the form of forwarded jokes or pictures, whereas others has been direct, in the form of cyber bullying and targeted harassment. Managers, Human Resource departments, and organizations are continuing to create policies, reporting mechanisms, appropriate investigation practices, discipline procedures, and training methods that will ensure a safe and harassment-free work environment. Although policies alone are not a solu-tion to these issues, they serve as a key and foundational element necessary to begin to safeguard employees. Within these policies, having a clear understanding of what practices are not acceptable and what actions will be taken are critical to creating practical, usable, and enforceable policies (Eberhardt et al., 1999).

Public employees are seen as having greater rights than their private sector counter-parts in relationship to their personal conduct (Wise, Clemow, Murray, & Bingham, 2004).




Still, off-duty personal conduct can have a direct impact on the employment relation-ship (Allred, 1999; Wise et al., 2004). In particular, when there is a nexus of conduct, or the connection between the behavior and the “efficiency of the public service” is called into question, the off-duty conduct becomes subject to regulation and inspection (Allred, 1999). In other words, does the violation affect the employee’s ability to do the job for the employer? For example, if a police officer was arrested for DUI (driving under influence) or a financial analyst was caught embezzling funds from his or her church, the behavior would cast dispersion upon the public trust of that employee in his or her official capacity and raise questions about his or her ability to perform his or her job. In the public safety arena, issues of conduct are often more extreme than for other employees with issues around “conduct unbecoming an officer” at the center of concern. In arguing that public employees have greater personal rights then before, Wise et al. give the example that “. . . gone are the days when a public school teacher could be terminated for cohabitating with another person out of wedlock” (pp. 208-209). Although this is true, the new electronic reality means that private actions are not just of interest and concern but are more quickly and widely disseminated. Although a public school teacher may have no worries about cohabitating, they may need to be careful of what they do online, as a Boston biology teacher recently found out when a post she made on Facebook resulted in a quick termination (H.S. Teacher Loses Job, 2010). Through the establishment of codes of conduct, organizations are articulating the expectations for employees’ behaviors, as well as disciplinary and termination consequences.

Another area of concern is the misappropriation of public funds or the use of public resources for private gain. Public employees are seen as trustees of the public’s funds, and appropriate stewardship extends beyond responsible budgeting decisions into the actions and uses of public resources by public employees. Examples of forms of disal-lowed conduct include taking state vehicles for joy rides, using government-owned telephones for extensive personal calls, or conducting private business for personal gain over public computers and networks (Lewis & Gilman, 2005). In recent years, misappropriation of public funds has become a major hot button, with tremendous scrutiny from citizen watch groups and media outlets alike.

MethodThis research examines the question, “How employee rights are treated (both restricted and protected) by social media policies within state governments?” To address this question, a content analysis of state government policies was conducted by a research team. The sample was gathered in a two-stage process. First, policies, guidelines, or associated working documents were collected from state websites. Given that the author or department issuing social media policies varies across the states, several main websites were searched. Department website searched include (a) state IT, (b) archives and history (cultural resources), (c). HR, and (d). governor’s office. When policies were not available on a state website, the state Chief Information




Officer (CIO) was contacted and the policies were requested (n = 17). Eleven states responded either providing the policies or indicating they did not have policies. After collection of all policies associated with social media and IT usage, the policies were reviewed for inclusion in the study. States were included in the sample if they had a policy that directly addressed the issue of social media. States use different terms to describe social media policies and house these policies in different locations, resulting in the following sample composition: (a) stand-alone social media policies, (b) social media guidelines, and (c) social media policies that are housed within a larger policy (often these were within larger IT usage policies). Policies were excluded if they had no direct treatment of social networking, that is, if an IT usage policy focused on email use but did not address any form of social media. The final sample was com-prised of 23 policies or guidelines, which represents all state policies or guidelines directly addressing social media issues as of July 2011. Through the collection pro-cess, it became clear that locating information about social media policies is a chal-lenging undertaking, both in terms of where and how to get the data. Those states with social media policies, guidelines, or social media specific sections are identified in Figure 1 (for a listing by name, see Appendix Table 1A).

Within the sample, 43.5% of the documents were social media guidelines, 47.8% were social media policies, and 8.7% were social media–specific sections of larger policies related to IT. For clarity throughout this article, all three types of documents

Figure 1. Map of states with social media policies included in sample




reviewed are referred to as social media policies. Policies were housed in and created by a range of different divisions, departments, or officials. Table 1 indicates the pri-mary authors or owners of the social media policies or guidelines, with IT as the most common authors of these policies.

Policies were imported and analyzed using the qualitative data analysis software QSR NVivo (Version 9). The data analysis process included both deductive and induc-tive approaches and was conducted in several phases. Coding definitions were devel-oped in order to ensure consistent application and reliability. The policies of each state were read by the research team of three and an initial deductive coding structure was applied. Pattern-matching (Yin, 1994) and memoing (Miles & Huberman, 1994) were used as part of the data analysis process. Initial codes were created based on a review of both employment rights and social media policy literature on related issues. For example, Hrdinová et al. (2010) provide a guide on the eight essential elements they argue should be considered by governments that they believe will resolve many of the concerns around social media use, these include (1) employee access, (2) account management, (3) acceptable use, (4) employee conduct, (5) content, (6) security, (7) legal issues, and (8) citizen conduct. These elements with the exception of exter-nally focused items like citizen conduct were included in the original coding scheme. The initial coding structure included such items as who was the author of the policy, if the policy linked to another agency policy, professional conduct (items in the policy related to regulating an employees’ on-duty conduct) and personal conduct (items in the policy related to regulating an employees’ off-duty conduct). The majority of cod-ing focused on these two final categories. Within professional and personal conduct categories, a range of subcodes were created, including authority (what can an employee do with social media that the employer identifies as “appropriate authorized conduct”), First Amendment (issues of free speech addressed within the policy), Fourth Amendment (issues of privacy or search addressed in the policy), and conduct (treatment of issues including, but not limited to, harassment, discrimination, etc.). Several of these codes included subcodes.

The initial coding structure was used to analyze each policy, and the research team compared initial coding of the policies and revised the coding structure based on the

Table 1. Author/Owner of Social Media Policy.

Percent

Administrative services 8.7Budget and control 4.3Cultural resources 4.3Finance 4.3Governor 4.3HR 4.3IT 65.2IT/marketing 4.3




common understanding of the main research question and how this was reflected in the data. Primarily, revision of the coding scheme related to reducing redundant codes, further specifying codes, or adding new codes related to previously overlooked issues. Table 2 provides aggregate results for many of the issues and items included in the coding. All policies were again reviewed by the research team and interrater reliability was calculated using a Fleiss fixed-marginal kappa coefficient, due to the use of three independent raters involved in the study. The researchers in this study had an overall Fleiss’ fixed-marginal kappa score of 0.74, indicating adequate inter-rater reliability (Fleiss, 1971). This study’s research design enabled the research team to collect rich qualitative data on the content of social media policies in state government.

Table 2. Element Included in Policies.

No (%) Yes (%)

Agency policy 43.5 56.5First Amendment 17.4 82.6On-duty conduct Authority 13.0 87.0 Disclaimer 17.4 82.6 Fourth Amendment 52.2 47.8 Information accuracy 47.8 52.2 Discipline 56.5 43.5 Acceptable use 78.3 21.7 Political activity 69.6 30.4 Gain 65.2 34.8 Expectation of conduct 21.7 78.3 Confidential 8.7 91.3 Security 39.1 60.9 Harassment 39.1 60.9Off-duty conduct Personal focus 30.4 69.6 De minimus use 60.9 39.1 Restricted action 56.5 43.5 Personal Fourth Amendment 69.6 30.4 Personal conduct/ethics 56.5 43.5 Personal disclaimer 47.8 52.2 Personal appropriate behavior 69.6 30.4 Personal security 56.5 43.5 Restriction on private resources 65.2 34.8 Personal de minimus at work 56.5 43.3 Personal use outside of work 52.2 47.8




Findings and Discussion

An examination of policies indicated considerable variation in terms of what topics were included, the depth of coverage, and the clarity of associated consequences. Table 2 presents a listing of the occurrence of key topics related to employee rights and conduct within the policies. Analysis of the policies focused on two main areas of employee rights, employee conduct and constitutional rights. These topics will be addressed in turn.

On- and Off-Duty ConductOn-duty conduct findings. Policies relate to a range of employee on- and off-duty

conduct. The focus of these policies relate to appropriate on-duty conduct as part of an employees’ official duty, non–work-related activities conducted while on duty, and non–work-related activities conducted while off-duty. The range of covered topics demonstrates a variety of treatment of employee actions and raise implications for restrictions on employee on- and off-duty behavior. There is a divide between policies that are specific in terms of indicating how an individual should act and what is per-mitted and those that describe a set of expected values that the employee should hold and should direct behavior. More so, several policies are written with a focus on directing the agencies or departments as to what minimum behavior is accepted (most commonly around technical practices) and should form the base for any individualized agency-level policies created.

The most common on-duty conduct issue included in social media policies is related to the need to protect confidential information of the government and focuses on ensuring employees are not undertaking practices that put this type of information at risk. 91.3% of the policies include some restrictions or instruction on the protection of confidential government information. For example, Alabama’s policy states, “Users shall not post or release proprietary, confidential, sensitive, personally identifiable information (PII), or other state government Intellectual Property on social media sites.” In addition to restricting information releases, the next most commonly addressed item relates to authority (87%), with a focus on who can be on social media sites and what they can do on a social network as a representative of the state. Tightly coupled to authority requirements is the requirement to provide a disclaimer identify-ing oneself and indicating whether the speech is a function of his or her professional position in the government or is being provided as a private citizen (82.6%).

Furthermore, 78% of the policies address items related to conduct becoming of a public official. Five key policy areas examined were limitations on political activity, prohibition against using state resources for personal gain, the expectation of conduct becoming of a public official, prohibitions on harassing actions, and specification of the requirement to only disclose accurate information. Only 17.4% of the policies include all 5 elements, with the same percentage (17.4%) addressing none of these in their policy. Slightly over a quarter (26%) of the policies cover one or two of these




topics, and the largest majority (34.8%) include three of these issues. These results demonstrate high variation in the treatment of conduct issues within social media policies.

Although policy content and the nature of coverage varied widely, there were a set of items in which significant consistency was found. The language across policies related to limitations of use related to political activities or for personal gain is very uniform. Maryland’s policy specifically informs employees that “Endorsement of political parties, candidates, or groups” is strictly prohibited while on duty or while using government resources; several other states use the exact wording related to this topic. It is important to note that this policy element does not violate an employee’s freedom of association right, which is the right of public employees to join organiza-tions voluntarily or to refrain from joining organizations if desired, as it is specifically related to on-duty conduct or conduct engaged in via government resources. The 1993 Hatch Act Reform applies to covered employees and allows most federal employees to distribute partisan campaign literature, solicit votes, work for partisan campaigns, and hold office in political parties but not while on duty (Joyce, 2010; Rosenbloom & Bailey, 2004; U.S. Office of Special Counsel, 2010). The policies reviewed for this study are consistent with the recommendations of U.S. Office of Special Counsel, which clarifies that although actions are allowed, off-duty limitations may be placed on on-duty activities or when using government resources, which is seen in state social media policies (U.S. Office of Special Counsel, 2010).

When considering how policies address the issue of employee conduct, there are vastly different approaches taken from highly restrictive of specific actions (most often related to work conduct at work) to aspirational expectations of conduct that is becoming of a public employee. Although expecting public employees to strive for a higher standard of conduct is a good thing, it does not provide employee’s specific information about what behaviors will be accepted and which ones might result in disciplinary action. Policies that address internal conduct issues are often more com-pliance oriented whereas issues related to off-duty conduct are more often broader in nature and attempt to appeal to an employees’ commitment to responsible or respect-ful behavior.

In examining state social media policies it can be seen that many rely on basic compliance-oriented behavior and that others rely on appealing to an employee’s ethi-cal integrity. For on-duty conduct, a third of the sample that addresses the issue in any manner (31.6%) included compliance-only language. Almost two thirds (63.2%) of those states that address on-duty conduct issues take a mixed approach, restricting their employees’ behaviors and requiring compliance with other state policies while also noting an expectation of professionalism or ethical behavior in general. For exam-ple, Georgia notes that there is an

Expectation of appropriate and ethical conduct of a State representative includ-ing cautions against positing offensive, profane, scandalous, libelous, defama-tory, pornographic, or otherwise offensive language or materials. . . . All




agency-related communication through social media outlets should remain professional in nature and should always be conducted in accordance with the agency’s communications policy, practices and expectations.

As with the Georgia policy, many policies specifically speak to issues of language and draw attention to the expectation of conduct in general as well as name specific limitations and associated policies to consider and apply in the use of social media sites.

A few states focus more on appealing to employee’s interest in doing right in their position and in relation to the public. Arizona’s policy that requires employees “Be respectful and mindful of the state, in addition to state leadership, state employees, customers, partners, vendor, citizens, and the public when participating in social net-works and web blogs.” The notion of appealing to responsible behavior as a policy stance is more commonly related to off-duty conduct than the often more compliance- and policy-oriented on-duty language. In addition to referencing the challenge of dis-tinguishing personal and professional actions, the issue of respect and responsibility are common themes in the policy language related to off-duty conduct. This is consis-tent with previous findings that public social media policies often express expectations of “trust” that employees will act professionally in their actions and comments (Hrdinová et al., 2010).

In more than half of the sample (56.5%) the policies were linked to or directly cited other policies that govern conduct behavior. For example, the California Standards notes,

4. Users who connect to Social Media web sites through State information assets, who speak officially on behalf of the state agency or the State, or may be perceived as speaking on behalf of an agency or the State, are subject to all agency and State requirements addressing prohibited or inappropriate behavior in the workplace, including use policies, user agreements, sexual harassment policies, etc.

The reference to, or expectation that actions will fall under, other policies may be one explanation as to why certain issues are not covered or are covered in only limited detail within the social media policies. Still, expecting that an employee will know to reference another policy or consider what other policies may govern his or her behav-ior can leave a lot of interpretation and ambiguity for the employees. This finding is consistent with Hrdinová et al. (2010) who found that in a majority of the policies that they reviewed the majority of them referenced existing policies by either using direct quotes or simply providing links or reference numbers on where to look further.

Off-duty conduct findings. Limitations to on-duty behavior are common and are in place to ensure a safe and appropriate work environment. When policies begin to affect off-duty conduct, employees may raise concerns about the impact on their rights as private citizens. Although coverage of off-duty conduct is less directly addressed within state social media policies, many employment actions (especially those with high media attention) relate to off-duty personal behavior undertaken on personal




devises. If employees are going to be faced with potential disciplinary actions for off-duty actions, yet policies have not been clear about their stance on these issues in advance, employees may feel misled and have concerns that their rights are being infringed upon.

The most common manner that off-duty conduct, not on state equipment, is treated is through a reference to the blurring of the lines for a public employee between on- and off-duty and the need to maintain a level of conduct appropriate for public officials. The top issue that is mentioned in policies regarding external conduct is to take care and recognize the blurring between personal and professional issues that occur. Nearly two thirds of the states that specifically address issues related to off-duty conduct reference the care that should be taken with respect to the blurring that can occur between personal and professional identity on social media sites. For example, Utah’s guidelines note,

In online social networks, the lines between public and private, personal and professional are blurred. By identifying yourself as a State employee, you are creating perceptions about your expertise and about the State by legislative stakeholders, customers, business partners, and the general public, and percep-tions about you by your colleagues and managers. Be sure that all content asso-ciated with you is consistent with your work and with the State’s values and professional standards.

This language is nearly identical to the language in the Idaho guideline. Washington’s guidelines specify “Personal vs. professional use—Employees’ personal social-networking sites should remain personal in nature and should not be used for work-related purposes.”

Oklahoma goes further in its treatment of personal actions trying to encourage its employees to try to make a clear distinction in what Utah and Idaho identify as a blurry area. Oklahoma’s policy notes,

All State agency employees may have personal social networking, Web 2.0 and social media site. These sites should remain personal in nature and be used to share personal opinions or non-work related information. Following this prin-ciple helps ensure a distinction between sharing personal and agency views.

The most common (52.2%) off-duty requirement is including a disclaimer on posted material or sites. Many states request that employees make a disclaimer on any personal social media site. For example, Utah’s policy requires employees publishing to websites outside the state use a disclaimer such as “The postings on this site are my own and do not necessarily represent the State of Utah’s positions, strategies, or opinions.”

When considering employee rights and behaviors, there is a dichotomy in interpret-ing the impact the creation of policies has on employee rights. Policies can act to limit




or restrict the rights of employees in terms of what actions, behaviors, and conduct they may undertake; these policies can also act to protect employees from intrusion by others onto their rights. For example, Oregon’s policy notes, “Derogatory, offensive, discriminatory, threatening or otherwise unprofessional behavior toward other employees via social media may violate state human resources policies.” Although these policies place restrictions on individuals, they aim to create a work environment in which employees have an expectation that their “right” to a safe and nonharassing work environment is protected.

Results indicate variation on the topics covered and the depth of treatment, across the sample, and it was found that consequences of inappropriate conduct were seldom addressed. This is consistent with the findings of Hrdinová et al. (2010) and is an area for consideration and focus by both HR professionals and future research.

First and Fourth AmendmentFor public employees, there is an expectation of the protection of First and Fourth Amendment rights both while at work and off-duty. These two topics are a central focus of this research as they have the most direct impact on the constitutional rights of public employees in relation to social media policies. The manner in which these issues are addressed in the various state social media policies is often indirect, but the impact of the language within the policy results in an impact on the First and Fourth Amendment rights of the employees. Most commonly, the nature of the language in these policies creates a case for the employer to argue that they have a justification for restricting such rights. The use of specific language may be accidental, particularly given the authorship of most of the policies is the IT agencies of the states.

First Amendment findings. With respect to First Amendment issues, none of the poli-cies specifically lay out the requirements of protected employee speech (matter of public concern, job duty test, and balancing of government vs. employee interests), nor do they address the derived freedom of association rights, but more than 82% (82.6%) of the policies include First Amendment restrictions in some manner. Although most policies do not directly address First Amendment concerns, many address employee conduct, often highlighting the blurry line between official and unofficial actions. These statements may influence when and how employees believe they have the right to speak on matters of public concern.

The most common types of First Amendment restrictions are related to authority and disclaimers, which are designed to indicate who can speak on behalf of an organization and also to indicate that personal speech is not reflective of organiza-tional viewpoints. For example, California’s social media policy related to author-ity states,

Users shall not speak in social media websites or other on-line forums on behalf of an agency, unless specifically authorized by the agency head or the agency’s Public Information Office. Users may not speak on behalf of the State unless specifically authorized by the Governor.




In terms of disclaimers, Maryland articulates a clear policy:

Individual, originating from a State employee clearly representing themselves as a State employee publishing content to any social media site outside of a Maryland domain and not conducting state business, must use a disclaimer such as this: “The postings on this site are my own and don’t necessarily represent Maryland’s positions, strategies, or opinions.”

The disclaimers required by many policies also pose an alternative and interesting concern in that the government may essentially be establishing the right of the employee to speak at any time as a private citizen, thereby reducing First Amendment restrictions traditionally related to job duty.

In many policies, there are also cautions about blurring personal and professional roles, which are designed to put the employee on notice that his or her behavior may be restricted, regardless of location, and that such behavior may be subject to disciplinary action. However, some policies explicitly prohibit freedom of speech/actions or associa-tion (regardless of legality to do so). A final example of First Amendment restrictions is outlined in Arizona’s policy, which states, “State personnel/contractors shall not post information, photos, links/URLs or other items online that would reflect negatively on any individual(s), its citizens, or the state, unless approved by agency policy.”

First Amendment rights are an interesting area within public sector employment, as these rights have moved from essentially no right of free speech in the pre-1950s to a slightly more expansive legal assessment of employee rights. The courts do not con-sider organizational policies when assessing First Amendment rights, so the primary goal of many policies is to influence employee behavior, understanding, and beliefs (i.e., portray the organization in a favorable light through direct speech about the gov-ernment or through employee conduct restrictions).

Fourth Amendment findings. The states’ social media policies are quite broad and varied in their treatment of Fourth Amendment (privacy) rights. Essentially, Fourth Amendment restrictions or protections deal with the ability of the government to mon-itor employee use of either government-owned resources for work or personal pur-poses or, less frequently, to monitor employee use of personal resources for personal purposes when there might be an impact on the government’s reputation. As previ-ously noted, 47.8% of the policies directly address privacy restrictions related to work-related conduct while utilizing government-owned resources, and 30.4% of the policies indicate privacy restrictions in personal uses of social media, either while at work or outside of work. In order to demonstrate the major categorizations of Fourth Amendment restrictions within policies, Figure 2 is offered.

Work-related useat work

Personal use at work(de minimus use)

Personal useoutside of work

Figure 2. Fourth Amendment Continuum




The first category on the continuum, work-related use at work, is most often addressed in the social media policies, with 13 of the 23 state policies mentioning limi-tations on Fourth Amendment rights. The remaining 10 state policies do not explicitly address Fourth Amendment rights, but it is plausible that other organizational policies, such as broad IT policies, may indicate no expectations of privacy when using government-owned computers, networks, or cellular phones. This hypothesis was not tested during the course of this research, as only explicit social media policies were examined. Of the 13 policies addressing Fourth Amendment restrictions on work-related social media use while at work, 5 policies specifically indicate that monitoring may occur on government-owned equipment, thereby indirectly informing employees of restrictions on their right to privacy. Four policies clearly indicate no assumption of privacy, and the remaining four note both monitoring and that employee have no expectation of privacy. Example policy language addressing both areas is found in Virginia’s policy, which states:

Monitor Usage: No user shall have an expectation of privacy in any message, file, image or data created, sent, retrieved, or posted in the use of the Commonwealth’s equipment and/or access. Agencies have a right to monitor any and all aspects of electronic communications and social media usage. Such monitoring may occur at any time, without notice, and without the user’s per-mission.

The second category in the continuum, personal use of social media while at work, is less frequently mentioned in policies, but nine states’ social media policies address the issue. Four specifically refer only to monitoring, as is noted above in the Virginia policy and two remind the employee that there is no assumption of privacy. Finally, three directly state that monitoring may occur and indicate no expectation of privacy. An example of this type of policy is found in West Virginia, which indicates, “The State reserves the right to filter Internet and social media site availability, and to moni-tor and review employee use. Employees have no expectation of privacy while using State-provided information resources.”

The least common type of Fourth Amendment restriction is the final category of the continuum, personal social media use outside of work. Only three policies categori-cally address personal use of such sites, with one referring to monitoring and two referring to no assumption of privacy. All three policies are broad and vague in their treatment of this type of restriction. The state of Washington’s policy is offered as an example: “Privacy—Employees should have no expectation of privacy in information stored on state computers or devices. Furthermore, there should be no expectation of privacy when employee conduct concerns the agency or its clients” (emphasis added by authors).

The final sentence of the Washington policy excerpt noted above indicates the restriction of employee rights to privacy even in personal conduct via social media by invoking a “conduct becoming” stance. For example, under the Washington policy, unfavorable behavior, such as driving while impaired or inappropriate




pictures of an employee, documented on one’s Facebook page outside of work hours and using private computing resources would be cause for agency and client concern, and thus, no privacy would exist related to that behavior or its sharing via social media.

The use of a continuum related to Fourth Amendment rights and public sector employees facilitates the discussion of the broad range of restrictions under which employees operate. The main purpose of these policies, whether intentional or conse-quential, is to restrict expectations of privacy in a clear and consistent manner, which the courts may weigh in favor of the government in the event of legal action.

Conclusions and Future ResearchBeyond broadening the knowledge base surrounding governmental social media pol-icy, this research specifically addresses issues related to employee rights, an often-overlooked but critically important component of social media policy formulation and application. Employee rights are primarily covered in two areas of focus, employee conduct and constitutional rights. Employee conduct has a range of treatments, from similar language and continuity of basic conduct elements such as appropriate lan-guage and personal gain, to variation in how states treat other aspects, such as ethical responsibility and harassment. Largely, there is a lack of clear direction outside of some common prohibitions (such as information accuracy). For an employee, most policies are confusing or lack clear steps in how they should use social media sites while on-and off-duty, though it is clear disclaimers are a common requirement for both settings. Interestingly, results of this study indicate that few states cover a broad range of conduct elements within their policies. This raises concerns and indicates additional future research is needed as more disciplinary action and legal cases result from social media activities.

Constitutional rights, particularly First and Fourth Amendment issues, are also treated with varying specificity in the state policies. When covered at all, First Amendment rights are addressed in an indirect manner and lack a clear indication of what constitutes protected speech. Many of the policies make references to the blurring of professional and personal roles, but the discussion lacks little direction in terms of what that means for actions outside of warning the employees to be aware of this issue. Employers struggle with whether and how they should limit the actions of their employ-ees in social media arenas, including prohibited disclosure of place of employment on personal sites, requiring disclaimers, and limiting social media use holistically (Heaton, 2011). At the same time, many employees are concerned that these actions may be affecting their right to freedom of speech. Although employers can legally make such requirements, it may be bad managerial practice and difficult to enforce in a consistent manner. Employers need to consider how such policies reflect on their strategic direc-tion and value sets and relate to their communication policies and practices.

In contrast to First Amendment issues, policies more explicitly addressing privacy issues lie along a continuum from work-related use at work to personal use outside of work with clear processes and requirements. Not all policies tackle the question of




monitoring or policies since IT policies usually cover the issue of monitoring and establishing the limitation on employees’ expectations of privacy. Although other policies may adequately address this issue, it is interesting to note how few restate or reinforce these practices in the social media–specific policies (56.5%). It may be criti-cal for employers to definitively establish that employees do not have an expectation of privacy, particularly in the event of litigation. Policy writers will need to think care-fully about where they want to orient their policies along the continuum, as well as follow court decisions related to this ever-changing field. Furthermore, in order to recruit and retain high-quality employees, employers may want to consider how their practices will be perceived by recruits and current employees alike.

Upon reflection of these results, there is a need for future research to understand the purposefulness and strategy employed in the creation of these policies. Probing ques-tions, such as “Is the often vague treatment of First Amendment due to a conscious choice and a legally reviewed document or the product of an accidental connection being made in a quick policy writing process?,” should be investigated. Evidenced by the amount of replicated language between the policies, questions of the degree of tailoring and thoughtful application of one organization’s policy to a different setting are raised. In addition, although this research examines how current social media poli-cies may be affecting current employee rights, there are a range of additional HR-related questions pertaining to hiring, disciplinary actions, and evaluation, which should be considered within the new context of social media. Although this research assesses the elements and dimensions included in state social media policies, a review of policy implementation and outcomes is a needed next step. As was recently noted by Tina Hsu, an employment attorney quoted in a media article about “Facebook Firings,” “You can’t stick your head in the sand and tell your workers to abstain. You have to teach them how to navigate this new area” (Jamieson, 2011).

Table A1. States With Social Media Policies.

AlabamaArizonaCaliforniaConnecticutDelawareGeorgiaIdahoIowaMaineMarylandMassachusettsNew YorkNorth Carolina

(continued)

Appendix




Appendix (continued)OklahomaOregonSouth CarolinaTexasUtahVermontVirginiaWashingtonWest VirginiaWyoming

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors received no financial support for the research, authorship, and/or publication of this article.

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Author Biographies

Willow S. Jacobson (PhD, Syracuse University) is an Associate Professor at UNC School of Government. She teaches in the Master of Public Administration program and directs the Local Government Federal Credit Union Fellows program which focuses on executive development and leadership training.




Shannon Howle Tufts (PhD, North Carolina State University) is an Assistant Professor at UNC School of Government. She designed and implemented the nation’s first local government Chief Information Officers Certification program.

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