Risks and Rewards of Social Media Use by Local Government

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1 Social Media Risk Scenarios Social media are Internet tools for sharing information with an audience that wants to connect about issues of common interest. Examples are the ubiquitous Facebook, Twitter and YouTube, as well as other sites, such as blogs, RSS feeds and wikis (publicly edited encyclopedias). The unique nature of social media fast, personal, and far-reaching makes it a valuable tool for many local government purposes but can also open public entities to new risks and to new versions of familiar risks. The full extent of social media risk is unknown, because its use by local governments is still evolving and there is no established pattern of losses. It is clear, however, that social media can intensify existing risks by providing an immediate and ready communication tool with widespread access and an effectively permanent record. As they begin to adopt this intriguing new technology, local governments need a basic awareness about the kinds of risks that can come from using social media and how they can address those risks. Public risk pools can help their members with both needs by providing loss scenarios and suggesting possible interventions. This resource provides a compilation of some suggested scenarios and loss control techniques that pools can share with their members. Note that many of the suggested loss control techniques are appropriate for inclusion in a social media policy, even though policy development is not the focus of this resource. Not all of the techniques will be right for everyone. Each local government needs to make its own decision about which controls to adopt and how to implement them. As we all learn more about this emerging area of risk, this resource will be expanded. If you have a scenario or loss control technique to suggest, contact Claire Reiss at (202) or creiss@nlcmutual.com. Inappropriate or offensive posting to the local government s official social media Employee posting on behalf of the government. An employee posts on the entity s official Facebook page the following update on a controversial issue: A bunch of goofballs tried to hijack the council meeting last night. Or, in a photo recap of the local government s annual festival, there s a picture of the local D.A.R.E. officer and the mayor drinking beer. The government deletes the posts and disciplines the employee. An employee s good judgment is essential when posting to the local government s social media, but drastically limiting the employees who can post also limits the conversation. The local government needs to consider how it can

2 reduce the chances of inappropriate postings while taking full advantage of the medium. Designate specific employees to make official posts to the government s social media sites. Adopt a written policy that outlines acceptable and unacceptable language, references, and content, and train all designated employees about its requirements. Include specifics about possible ramifications for policy violations. Require employees who make official posts to adopt for that purpose a screen name that follows a convention established by the local government. Require prior review and approval of non-urgent posts for content and language. Designate a point of contact for complaints about content. Consider in advance how to handle situations where the local government receives complaints about content posted on its social media, who will act as a spokesperson in response, who will make a decision about whether and how to act, and how the local governing board will be informed. Create a forum and method for regular review of prior postings with city staff and management to discuss appropriateness, timeliness, etc. Inappropriate public comments on the government s official site. A member of the public who follows the local government on Facebook posts a comment using harassing, defamatory, offensive, or otherwise inappropriate language or pictures. The government removes the post and the citizen is outraged and threatens to sue. Members of the public have free speech rights, but those rights are not unlimited. Local governments have the right to establish comment policies that prohibit inappropriate content, are applied consistently and irrespective of the poster s viewpoint. Develop and visibly publish a viewpoint neutral comment policy the local government will use for its official social media outlets, including a public notice that non-complying comments may be removed. Post a disclaimer of liability for comments posted by visitors to the local government social media site. Establish a procedure for monitoring comments and a viewpoint neutral standard for removing inappropriate comments. Assign to specific employees the responsibility for monitoring comments for compliance with the comment policy and removing comments that violate the comment policy, and train them to do so appropriately. Decide in advance how to address complaints about comments; who will be the point of contact about complaints, who will act as a spokesperson in 2

3 response, who will make the decision about whether and how to respond, and how will the local governing board will be informed. Inappropriate employee comments. An employee who is not designated to officially post on behalf of the local government posts a comment that violates the government s comment policy. The government removes the post. The employee claims that her free speech rights have been violated. Many local government social media sites are open for comments by the public. Employees who are members of that community can post as citizens, but they are subject to the same comment rules as anyone else. Train all employees that they are subject to the requirements of the comment policy when posting on their own behalf. Include compliance with the comment policy as part of the government s employee code of conduct and include specifics about possible employment ramifications for employee comment policy violations. Employee use of personal and professional social media A local government employee uses his or her personal social media to post something that reflects poorly on the government entity. An employee Tweets sexually suggestive photos. Or a firefighter posts on his or her social media site photos in uniform with comments on medical calls to which he or she has responded. Both work and social media are integral parts of employees lives, but they can often do not realize how much the boundaries blur. In the past, indiscretions had limited circulation. Now they can go viral. With that power comes potential harm to the employer if the employment relationship is identifiable. Employees have freedom of speech rights, but local government can require employee behavior be appropriate if it can be linked back to and reflect on the government. Have an employee code of conduct that prohibits inappropriate behavior by employees that could reflect on the local government, whether it occurs onduty or off-duty. Have a policy that identifies information considered to be private or confidential and not for release on social media sites, such as a fellow employee s health or personnel status, medical care provided to an injured citizen or personal injury lawsuits against the city. Remind employees that posts on social media outlets can be traced by anyone, anytime. There is no privacy in social media. 3

4 Discuss and determine how policies on personal use of social media will be enforced. Decide how the local government will respond if it receives a complaint. While off-duty, an employee criticizes his or her government employer on a personal or professional social media site. An emergency manager networks with other emergency managers through a social media site. The emergency manager from a city devastated by flooding posts on that site while off duty a comment that his employer did not make available adequate resources for the flood fight. Employees often network with their peers through personal social media or professional social media. Professional networking is actually useful to the local government, because its employees can learn from others in similar positions. With that benefit, however, comes the possibility that the employee will occasionally say something unfavorable about the employer. An employee who posts on personal or professional social media sites while offduty about a matter of public concern is probably acting within first amendment rights, even if the posting is critical of the government employer. Even a critical off-duty posting that is not about a matter of public concern is likely not grounds for employment action against the employee unless the employee has violated some other policy, for example, disclosed private or confidential information or otherwise violated the employee code of conduct. Taking employment action against an employee based on off-duty personal or professional postings is a risk in itself. Have a policy that requires employees posting on sites where their employment by the government is apparent to disclose that their comment reflects their own personal opinion, and not that of their government employer. Train employees that the employee code of conduct applies to their off-duty social media activities just as it would to other off-duty activities. Get legal advice before taking employment action against an employee for personal or professional postings. A local government employee makes excessive use of personal social media during work hours. An employee complains that a coworker is spending hours each day on a personal social media site using the employer s technology and his or her own smart phone. 4

5 Social media may be an unavoidable part of the workplace, but productivity is a legitimate employer concern. Employees should not use personal social media at work to the extent that it interferes with their ability to do their jobs. Have a written policy governing employee personal use of employer-owned and personal technology during work hours. The policy should clearly address discipline or other ramifications of excessive personal use. Give clear written notice to employees that they have no reasonable expectation of privacy in communications at work or through employer owned equipment and devices. Have a written policy explicitly disclosing how employee technology use will be monitored, by whom, and for what purpose. When making disciplinary decisions don t rely just on monitoring results. Focus on the demonstrated impact on the employee s productivity. A local government employee uses personal social media to harass of defame. A supervisory level employee uses personal social media to harass a subordinate for filing a workers compensation claim. Or an employee reads a citizen-activist blog and responds with overly zealous and potentially defamatory arguments in the comments section. The targets react by claiming harassment, retaliation and defamation. An employee s use of personal social media can reflect back on the local government if the employment relationship is apparent on the posting. Social media also provides another venue for negative interactions between employees, and one that is not easily controlled by the employer. Employees have freedom of speech rights, but local governments can require employee behavior be appropriate if it can be linked back to and reflect on the government or if it directly affects another employee or someone linked to the harasser through the local government entity. Have a written policy regarding inappropriate behavior by employees that could reflect on the local government, whether it occurs on-duty or off-duty. Have a written policy that requires employees posting on sites where their employment by the government is apparent to disclose that their comment reflects their own personal opinion, and not that of their government employer. Remind employees that posts on social media outlets can be traced by anyone, anytime. There is no privacy in social media. Train supervisors to use caution in establishing social media friendships with subordinates, to follow the same rules in those relationships that they would follow in the office, and to avoid discussing job performance issues through social media. 5

6 Employment related issues A local government decides to monitor its employees Internet and social media use at work. It gives no notice to the employees that they will be monitored and have no reasonable expectation of privacy, and does not adopt a policy that defines the scope of that monitoring. When technology staff monitors an employee s access of her personal and Facebook accounts through the local government s Internet connection, the employee claims breach of privacy, noting that she accesses her personal accounts only on breaks or after work hours. A local government is entitled to forbid its employees from making any personal use of its technology at any time. Whether doing so is worth the effort to enforce and the effect on employee morale is a question each entity must answer. It is important to give employees clear notice of the employer s intent. Make sure the local government has a written computer use policy in place, including details on whether and how employee use of employer-owned equipment will be monitored. Have a written policy stating that employees do not have a reasonable expectation of privacy in any communications or documents created using employer-owned equipment, systems or devices. Don t rely solely on Internet logs or similar reports to make disciplinary decisions. Be sure to fully investigate suspected violations. The local government inappropriately uses social media information to make a decision about hiring a candidate for employment. After a positive telephone interview, a local government supervisor looks on Facebook and discovers that the best candidate is disabled, and then decides not to hire that candidate. Social media outlets offer a glimpse into the personal lives of local government job applicants. Local government hiring practices and policies should consider only job-related criteria. Having the personal information from social media sites can create the appearance of discrimination, even if the final decision was made for non-discriminatory reasons. Consider whether the value of the information from social media sites is worth the risk. If social media is used to screen applicants, have someone check the site who will not make the final hiring decision, and require that person to pass on only information that can be legally considered in the hiring process. Do not check personal social media without the applicant s written permission. Never use a false identity or other fraudulent means to access the applicant s social media. 6

7 The local government takes or fails to take disciplinary action for inappropriate employee social media use. A local government terminates an employee suspected of posting something inappropriate but later discovers a different employee actually posted the item. Or the local government discovers one employee harassing another using personal social media, and takes no action. Employers are required to act on certain types of information, and information obtained by social media is no exception. Caution is required, however, because things may not always be as they seem. It s perfectly fine to establish reasonable standards for employee use of social media taking place both on-duty and off-duty. Those standards should be written and communicated, and any related disciplinary actions should be consistent. Discipline should always be documented. When it comes to employee discipline, there are a variety of issues that should be further discussed with human resources professionals. Be sure local government agencies fully consider employment liability implications before disciplining an employee, or when deciding whether to ignore certain behaviors. Check with a legal advisor. Content errors and omissions The local government fails to timely and accurately post information to a social media site upon which the public relies for that information, causing someone to act in a way they otherwise wouldn t. A local government agency routinely posts road closures due to construction or street maintenance using Twitter, but fails to do after a major storm during which electrical lines fall into the road and injure a member of the public who drives onto them. Or the posted directions for a public event are inaccurate, resulting in traffic chaos and several automobile accidents. Or the local government posts incorrect information about the location of an emergency shelter, causing residents to be misdirected during a storm or emergency event. As people come to rely on government social media sites for critical, government must ensure that the information is timely, accurate and complete. Permit posting to official social media outlets only by designated employees. Develop written expectations for employees posting materials using the local government s social media, including required postings and expected timelines, as well as ramifications for not posting as expected. Have review and control procedures in place that recognize the need for both expediency and accuracy. 7

8 Decide how critical local government information generated in the evening, overnight, or on weekends will be communicated. If the social media site is not updated during non-business hours, say so on the site. Develop in advance a protocol for releasing corrected information. Disseminate information using multiple tools (social media, websites, radio announcements, and text message alerts). Regularly remind recipients that they should not rely on just one information source for critical information. Open meetings and public records Local government officials use social media to communicate with each other and share ideas related to city business and operations. Facebook is catching on big in one local community, and the members of the city council all nave new accounts. While building their friend base, they each friend the other members of the city council. All is well until a contentious issue comes up and they begin conversing with one another about it through Facebook. It is a small town, and a citizen who is also friends with them complains that they are violating the open meetings law. While social media is a step toward additional government transparency, it can be an unintentional conduit for local government officials to engage in conversation outside the pubic meeting forum. This risks violation of state open meetings laws or the local government s meetings policies. Have a policy about when and how public officials can use social media in order to communicate with each other about local government business and issues. Remind elected officials that the perception of open government is critical. The local government doesn t adequately address record retention policies for its use of social media. A local government begins using social media to interact with members of the public. On that site, public employees respond to queries from members of the public. On one issue, a member of the public requests the record of the conversation. Public records retention laws vary by state, and local governments adopt policies to comply with their state s law. Social media is electronic in nature, and thus may be omitted from retention policies. It may be subject to state retention policies, however, depending on its content. The key is to be sure local governments have considered the link between social media and retention policies and have planned accordingly. 8

9 Include social media content in local government document retention policies, guidelines, and employee training. Focus on information content, not format, when determining retention policies (unless retention policies are specific to format). Contract issues Individual local government employees have entered into social media use agreements or licensing contracts on behalf of the government without authority. The head of the department of recreation opens a social media account to publicize and interact with the public about upcoming events. To open the account, he has to accept the site s terms of use. Those terms of use include choice of jurisdiction and indemnification provisions that are not permitted for the local government. Terms of use and license agreements for social media are standardized contracts, despite their electronic form. They often include language regarding release and indemnification that may not be appropriate for local government agencies. Yet they are very easy to accept just a click! How can the local government ensure that employees are not entering into electronic agreements that would be unacceptable if they were written contracts? It s important that local government managers, public information officers, technology and communications staff, and legal advisors all consider the implications of social media agreements. Identify in the local government s social media policy the employees who have the authority to establish new social media accounts. Accessibility Unique regulations affect local government use of social media. A local government develops a blog that does not offer the ability to increase the size of the text for view by people with visual impairments. A member of the public complains that the blog is not accessible to people with disabilities as required by state and federal law. In some cases, local government may be held to standards for how it makes online information easily accessible such as standards to assure access by those with a disability, limited resources, etc. Many social media sites are cost free, but accessibility by those with disabilities may not be within the control of the local government. All social media requires Internet access through costly electronic devices and data plans. 9

10 Make sure that local government gathers input from many sources and thinks carefully about the social media platforms it uses. Be sure to include managers, public information officers, technology and communications staff, human resources professionals, and legal advisors in conversations about social media. Use a variety of platforms to distribute information, and publicize the availability of the different sources. Workers compensation Use of social media expands the workday and work place, exposing the entity to workers compensation and liability claims in situations over which it may have little control A local government attorney driving home from the office at the end of the work day picks up her child at day care, and on the way home engages in a conference call or texts about a case and has an accident. The attorney and the other driver are seriously injured. The employee makes a workers compensation claim and the other driver sues the local government because the limits of the attorney s personal auto policy are insufficient. The laws governing workers compensation and the employer s liability for its employees actions developed at a time when an employee s scope and course of work was more easily identifiable. Most employees worked at a specific location and, lacking today s mobile devices, did not have the capacity to be on the clock when they left. Some employees moved from place to place doing their work, but even they usually performed clearly work related tasks within specified hours. Although the scope and course of work occasionally became an issue, most employers could control the risks associated with their employees injuries and accidents. The Internet, telecommuting and social media have turned that traditional scenario on its head. The Internet paved the way for employees to work from home offices, exposing their employers to liability for worker injuries at home and injuries to third parties visiting that home office on business. Mobile devices and social media have extended that exposure even further, to employees who may not be officially at work, but are conducting business using mobile devices and social media. The line between the workday and personal time has never been blurrier, and employers must be increasingly vigilant to control workers compensation and liability exposures. Have a policy that clearly prohibits the use of mobile devices for work purposes (whether government or personal devices) while driving or engaging in other hazardous activities. Incorporate human resources hours of work policies into the government s social media policy. 10

11 Be judicious in distributing government owned mobile devices. Always consider whether the risk is worth the benefit. Some additional things to keep in mind Social media evolves rapidly. Stay informed about new platforms to identify both new opportunities for the local government and new risk exposures. Be sure to develop in advance procedures for responding to any complaints. The public workplace is diverse and changing. It includes traditional employees and elected officials. Some employees are full time and work in an office, but others are part time, contractors, or telecommuters. Some local governments are increasingly making use of volunteers to perform work that used to be performed by paid employees. Be sure to consider this diverse workforce when developing policies related to the use of social media. Many laws that govern activities by local governments were established before social media became an important tool. Those laws may not be well suited to the special attributes of social media. In some cases, it may make sense to pursue state-specific legislation that would ease the way for local government use of social media. 11