On the QT on FB?

 

By: Kris Fertel

We are all getting very comfortable with socializing online. The Pew Research Center’s Internet & American Life Project reported this past August that 72% of online adults use social networking sites to connect with each other personally. At the same time, we spend an increasing amount of time online as professionals. In fact, we spend much of our out-of-class time emailing students, teaching online courses and/or enhancing our classes with online materials and social media forums. Therefore, it’s not surprising that personal and professional uses of technology begin to overlap. However, when they do, we may be compromising our right to privacy and setting ourselves up for potential discipline and discharge in the process, so we need to really consider where and how we access email, the Internet and social media sites.

To Use the LRCCD “Systems” or Not to Use Them

Every semester, we receive a letter in our mailboxes reminding us of our rights and responsibilities as employees. Let’s face it, most of those flyers end up right in the recycling bin. However, if we go online at work, we should first review the LRCCD “Administrative Computer Use” Policies and Regulations (8811, 8831, 8851, 8871).  The specific Policy that most interests me in terms of dispute resolution is 8851.1. It reads:

The Systems are Los Rios Community College District property provided for authorized use described in the District policies, regulations, and guidelines [in support of the programs of the Colleges and to be used for such related activities only] and are subject to monitoring at any time, consistent with law, with or without notice, at management’s sole discretion.
As you can see, communicating on the QT while using District computers and servers is not guaranteed nor advisable. In a CFT article titled “Who’s spying on you?” from 2012, Robert Bezemek and David Conway, LRCFT’s legal team, write that when we use the District’s computers for communicating, we risk having our communications intercepted, forwarded and shared by others and that can lead to embarrassment, disciplinary investigations and punitive consequences.

If you find yourself in such a situation, you may question the District’s right to punish you for what you’ve said using the argument that you have a right to free speech. After all, Internet communications constitute “speech” within the meaning of the First Amendment to the U.S. Constitution, don’t they? Yes and no. As a public employee, that right has been limited in recent years. In Garcetti v. Ceballos (2006)

the Supreme Court of the United States ruled that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” As public employees, we are legally held to a higher standard whether we feel we should be or not.

On the other hand, your speech is protected if it falls under “protected union and concerted activity” in Section 8a.1 of the National Labor Relations Act In other words, if you are communicating for the purpose of initiating or inducing group action or bringing truly group complaints to the attention of management. That’s what allows your union officers and representatives to communicate with you and organize members using District resources. This is mirrored in the Education Employment Relations Act (Rodda Act). This law does not keep such communications confidential, but it does prevent punitive action as a consequence of speaking out on behalf of the group.

If you feel none of this applies to you because you are using the server only to log in to private email accounts or private social media websites, think again. Although the recently passed Assembly Bill 1844 (2012) provides some privacy rights when using such social media accounts by prohibiting management from requiring you to give them your user names or passwords, it doesn’t stop them from asking you for such passwords if they have reasonable proof it may be relevant to employee misconduct investigations (Bezemek and Conway). So you can’t really be on the QT on FB either. Over the past couple of years, I’ve attended various labor conferences discussing case summaries involving labor laws and employee privacy. They’ve presented situations at various school districts across the nation involving disciplinary action and/or discharge stemming from comments criticizing co-workers on FB, merely “liking” such comments on FB, teachers violating FERPA laws by discussing specific students and grades on FB, teachers behaving “indecently” by posting pictures of themselves drinking or partying on FB and even situations where teachers “did not do enough to try and stop” others from posting “indecent” pictures of them on FB. Some of the cases have been overturned, but others have been upheld. In other words, think very seriously when you are posting pictures, “friending” students or making specific work-related comments even on your own private blogs, sites or in your own private tweets.

There are some of you who think none of this applies to you because you are using your own personal smart phone, iPad, laptop, etc. when you access the Systems. While it is true that you do have a right of privacy when you do, as Bezemek and Conway point out, “that right may be invalidated, depending on whether your use was ‘in the open’ where others could read what you posted, whether you had a reasonable expectation of privacy because the device or service required a password, whether any relevant policies of the service provider or employer were implicated and based on who might be looking in.” That should be enough to give you pause. As a general rule, never put anything in writing that you wouldn’t feel comfortable posting on your office door. If you have something to say outside of that, pick up a private phone and talk one-on-one.

As a final note, you may be thinking that the District is not out to get you, so why does it matter? Such cases may directly involve management, but more often than not they originate from the concerns of your colleagues or students. What if a student chooses to file a lawsuit against an employee or the District and references the California Public Records Act to make a public records request for any online communications on the District’s server relevant to the complaint? What if there are reports of bullying, discrimination or other misconduct that come under review? What if news crews decide to pick up a story for the local broadcast? Scrutiny can come from the outside as well as the inside, so don’t feel as if there is a wall around your internal communications.

Give me Privacy or Give me a New Job
So what can we do? We are here all the time, we need to communicate and life is a complicated web of personal and professional concerns. Here is a little advice from “6 Maxims for your digital life” within “Who’s Spying on You?” by Bezemek and Conway on the CFT website:

— All highly confidential or private emails, such as an email to your union or about your supervisors, complaints or grievances, should be sent from a non-work email account.

— Assume your employer can find “private” online postings and public information that you share online, such as tweets, blog posts, or “public” portions of a Facebook page, as well as any ostensibly “private” information that a third party may share with them.

— It’s wise to protect your personal electronic devices with security measures, starting with a password.

If you have any questions or comments about this article, or you’d like more information on any of the general cases or specific articles referenced, please contact me at fertelk@arc.losrios.edu. For queries you wish to keep on the QT, use krisfertel@yahoo.com