Over the past two years, there has been a lot of focus on whether and when an employer may discipline employees for posts they make on blogs and social media sites. Perhaps most notably, the National Labor Relations Board (“NLRB”) has issued guidance and decisions holding that employees have the right to complain about terms and conditions of employment on sites such as Facebook. In light of this recent trend, it was refreshing to see a recent decision from the United States Court of Appeals for the 11th Circuit upholding the discipline of an Atlanta police officer who criticized a colleague on Facebook. Gresham v. City of Atlanta, No. 12-12968 (11th Cit. 10/17/13)
The case arose when officer Maria Gresham posted on Facebook that a colleague had interfered “in an unethical manner” into an investigation of a person Gresham had arrested for fraud and financial identity theft. After discovering the post, the Department investigated whether or not Gresham violated a work rule requiring that any criticism of a fellow officer “be directed only through official Department channels,” and “not be used to the disadvantage of the reputation or operation of the Department or any employees.” Gresham complained that she was subjected to unlawful retaliation because she was passed over for promotions while the Department was conducting its investigation.
The Court of Appeals held that Gresham’s claim was covered by the Supreme Court’s ruling in Pickering v. Board of Education. In Pickering, the Court held that a public employee alleging that she was retaliated against for exercising free-speech rights under the First Amendment must show that her “interest in speaking outweighed the government’s legitimate interest in efficient public service.” The 11th Circuit ruled that, because a police department is a “quasi-military organization” were negative comments about colleagues can directly interfere with confidentiality, morale, and efficient operations, Gresham had failed to meet the Pickering standard.
The Gresham decision is an important victory for employers wrestling with the permissible boundaries that may be placed on social media conduct by employees. The case demonstrates that employees do not have the unfettered right to carry their workplace gripes into cyberspace, and reinforces the notion that employers may place reasonable limits upon employee efforts to publicize their grievances.