Courts limiting workers’ online conduct

Two new policies instituted in Indiana courts in recent months restrict how court employees may use social media in the workplace and when they are off-the-clock. Some question whether this could raise issues of free speech.

In August, Delaware County’s five Circuit courts issued a new social media policy with broad limits on court employees’ rights to communicate online, even at home. The policy prohibits all court employees from making any posts about anything related to their jobs.

“As a condition of employment, each court employee agrees to complete confidentiality of the workplace … ,” the policy states. “Therefore, even outside the workplace, no employee shall discuss or reveal on a social network any information related to a judge, co-worker, parties before the court, attorneys who appear before the court, local law enforcement officials, and/or any information obtained through the employee’s observation of and/or work with the court.”

The policy bans employees from accessing non-business-related social media sites or the Internet for personal use during work hours including text messaging and answering non-work-related emails from personal phones or devices. Employees are also prohibited from making any comments about other court employees in public forums that “are negative … or might be perceived as negative.” Lastly, after leaving court employment, former employees must still “uphold the independence, integrity and impartiality” of the courts and “should not reveal to third parties any observations made as a (court) employee.”

Additionally, the new policy also warns employees against revealing that they don’t “maintain a prudent and judicious lifestyle.” Specifically, it prohibits personnel from posting photos of any employees – no matter the time or location – in an “intoxicated condition,” because the judges found that to be improper and conflicts with the judiciary’s regular docket of cases involving alcohol abuse offenses.

Violations of the policy will result in a verbal warning, followed by a written warning, and possibly eventual termination, the policy states.

Delaware Circuit Judge Marianne Vorhees said she wanted to adopt a policy after attending the 2010 state judicial conference and hearing about “all kinds of issues” arising from social networking by court employees, including judges. Marion County had crafted a similar policy about that time, and Vorhees said she used a sample to help draft this policy for the Muncie-area courts.

The Delaware Circuit judges had previously discussed issues surrounding social media use, following a local newspaper report that Facebook was the number one Internet site accessed by county government workers during a week. They also looked to how other states, such as New York, North Carolina and Florida have weaved these types of policies into their judicial rules.

“These are concerns out there, and we thought it would be good to have a policy that lets our county employees know that they’re being paid by taxpayers to work for the court and not update their Facebook pages,” Vorhees said.

About the same time, the Southern District of Indiana signed a policy similar to the Delaware County document. The policy prohibits that social media use during work hours and bans employees from discussing work-related responsibilities or issues online or identifying themselves as a member of a particular judicial or court staff. It does allow employees to use general titles such as law clerk or administrative assistant. An aspect of the policy also states employees must “avoid negative commentary regarding the court,” and they should include a disclaimer saying views expressed are personal views if anything posted reveals a connection to the court.

“This is a new aspect of our court culture, because the young staff we have see this as part of their fabric now,” Chief Judge Richard Young said. “Posting personal information and sharing everything at all hours is the way things are. We have to make sure that we address this in jury trials where we have pattern instructions or in the court offices as a workplace.”

This concept of regulating workplace online communications isn’t a foreign idea for those in Indiana’s legal community. An Indiana deputy attorney general lost his job in February after commenting online that authorities should use “live ammunition” to run off protesters rallying about union collective bargaining in Wisconsin. He made the comment in a Twitter response on a Saturday evening, and within days he was disciplined by his superiors.

“Civility and courtesy toward all members of the public are very important to the Indiana Attorney General’s Office,” the Indiana AG said in a prepared statement. “We respect individuals’ First Amendment right to express their personal views on private online forums, but as public servants we are held by the public to a higher standard, and we should strive for civility.”

But some wonder if these types of policies go too far and infringe on employees’ private lives and free speech rights. Reports circulated after the new Delaware County policy took effect that complaints were filed with the American Civil Liberties Union of Indiana and Indiana’s Judicial Qualifications Commission, but any allegations or investigations aren’t public.

The National Labor Relations Board has been looking into questions surrounding employer-imposed limitations on what employees can say about work online. The NLRB’s enforcement office has found some of the comments made in violation of workplace policies were legally protected because individuals were expressing concerns about the terms and conditions of a job, but there’s some confusion about where the line exists. Federal law permits employees to talk with co-workers without reprisal no matter where that discussion happens. One NLRB case shows that an employee at an undisclosed Indiana emergency transportation and fire protection company was fired after writing on the Facebook wall of Sen. Richard Lugar, R-Indiana, to complain about skimping on wages and saying that her employer was endangering quality of care. The NLRB declined to take the case on the grounds that the employee didn’t discuss complaints with workers or show any attempt to work with management first.

Terre Haute attorney Jim Bopp, who frequently handles cases involving constitutional free speech matters, sees a problem with these types of social media policies at the government level. While they would be allowed for private companies, that’s not the case for public employees, he said.

“The First Amendment says that employees have the right to speak in public about matters of public concern,” he said. “I haven’t seen this come up before, but I could see it arising if someone posted something like they were concerned about the court or sheriff’s policy on transporting prisoners and then that person is punished.”

At the judicial level, Vorhees disagrees with any free speech arguments. She has read and reread the policy searching for those implications but hasn’t been able to find what might be a concern. The policy doesn’t say you can’t tell an anecdote or funny story about something that happens in a public court setting or something similar, Vorhees said, but goes at the heart of confidentiality on certain internal court matters.

“I disagree with that notion that we’re taking employees’ rights of free speech away,” she said. “We just want to make sure our employees are doing their jobs and that they understand and value the confidentiality of our courts.”•