By Stephen Wagner
Technology is creating challenges for management in the public as well as private sectors. At what point is an individual’s right to freedom of expression restrained by the simple fact of employment? What constitutes appropriate behavior and comments but still provides employers with a shield from civil process, either from employees or from those offended by an employee’s behavior.
Currently the accepted norm is that anything done using an employers computer, whether on or off duty, is at the employee’s risk. Comments made on personal time but relate to their employer have in some court cases to be actionable as well. But what is an appropriate punishment for such an obviously subjective issue? In many situations our society has chosen to default to a "zero tolerance" on many issues in an attempt to remove complaints of unfair discretionary discipline.
The problem is much more than just wasting time on the internet browsing or taking care of personal business, although that is a significant problem. Staff Monitoring Solutions, a provider of software solutions to help government and business control internet an email activity at work reports that "...on average, office workers spend 21 hours per week online at the office, as opposed to only 9.5 hours at home." International Data Corp (IDC) reports that 60% of all online purchases are made during work hours and 30% to 40% of internet access at work is spent on non-work related browsing.
Email presents a large risk of damage from tort actions for local governments. Governments, by their very nature collect personal and private information on citizens who are largely dependent on the assumption that governments, and the individuals that serve in government, will not hurt them. In a survey of 800 workers from various sectors, 21% admitted to sending confidential information to recipients outside the group by email.
This happened last year in local fourth class city. A citizen that emailed to the codes enforcement official requesting information about the status of a business license certainly regretted it. Within two days of his email all of his information was forwarded to the business’ attorney. A threatening letter from that attorney regarding possible legal action immediately followed. The citizen was then forced to hire his own attorney, and incurred costs for simply asking a question of his government.
Are government entities responsible for the actions of their employees?
Social media is an especially vexing issue for local government management. Again, what is appropriate? (We are not discussing the shamelessness of a Spitzer or Wiener.) There seems to be a sliding scale. Inside businesses and government entities, the higher the posting the more stringent the controls. Entry level employees certainly don’t have the gravitas of senior management. Management personnel speak and make decisions for the city or town, so the exercise of their right to free speech must be more measured, always cognizant of the sway they hold over others. It is their judgment that gives them their value to the government and awards them decision making powers on behalf of the citizens they work for.
Personal comments by employees can leave that local government open for libel, slander, or workplace harassment and misconduct suits.
The Tribune was made aware of an unfortunate example recently. It seems a employee of a local government offered up two articles of personal experiences that demonstrated a total lack of appropriateness. One story revealed inappropriate personal details of an intimate and sexual nature with racial overtones while the other crassly described their experiences producing a specimen for the drug test for her current position.
Finding these postings required no investigation or computer skills at all. The local government’s Facebook page led directly to a personal Facebook page. There, a link and comments takes users directly to the inappropriate blogs. Simply two clicks from the City’s Facebook page.
The issue here is poor judgment, plain and simple. These pieces, while probably thought to be humorous, would be an embarrassment if read in public session. But is that the standard of acceptability or is the threshold lower?
But how will the local governing body respond to the postings if at all? This particular jurisdiction lacks a basic personnel and policy guide relying instead on a supporting ordinance that lacks currency and completeness. There is currently no method for holding subordinate employees responsible for exercising discretion, good judgment, or basic common sense. Lacking the most basic of management tools, an employee guide, certainly a decision on this employee’s fitness for objective, circumspect decisions will fall on the elected governing body.
How are co-workers supposed to react in today’s climate of absolute political correctness? What is the risk that someone will say something that that the blogging employee finds offensive about their private life now made so public? Could the local government then be sued, or has the blogging employee given up their rights?
The evolving technology of social media and connectivity will require thoughtful and considered policies for governments and businesses alike. The policies must be subject to frequent review and evolve themselves. But in the end, it is the common sense restraints that we place on ourselves, our own sense of personal responsibility, that will determine the success or failure of this new social experiment.