By Jennifer Gomori, MAPE Editor

While some people are concerned about what they post, text and otherwise share online, just as many view this as their First Amendment right to freedom of speech. No matter your view on the subject, legal advisors for MAPE are urging members to think twice before posting or texting anything sexual, racial or even political.

“You have a First Amendment right to say whatever you want to, but you don’t have a constitutional right to your job,” said MAPE Legal Counsel Catherine Farrell.

Public Employees should understand specific restrictions detailed in their contracts. “Look to the CBA to make sure you don’t violate it,” said Farmington Hills Attorney Arthur J. Weiss, who joined Farrell in a Social Media discussion with Union members during the Annual Open House in December.

Weiss recounted a case in which a Detective was accused of hitting on a witness and complainant. “There was nothing in the CBA for sexting, however it was clear the department could discipline him if they thought it was warranted,” Weiss said.

Sexting is the sending of photos or messagesis defined as lewd, nude, semi-nude or offends the reader’s sensibilities, he said. Furthermore, if the posting or texting occurs on duty, using a work phone, or is sent to someone involved in a case, it impacts the Employee’s job performance.

When it comes to charges sticking, Farrell said, those who have a long clean work history often fair better than younger workers or those with previous blemishes on their records. Arbitrators consider all the elements - discipline record, racial or sexual comments, years of experience. “The history of whether or not there’s discipline plays a very big part when it comes to arbitration,” Farrell said. “The Arbitrator wants to feel sure the Employee is not going to redo what they did.”

MAP Executive Board President Rich Heins said even mutual sexting can be a problem. If one of the parties involved becomes disgruntled at a later time, they can make a complaint, he said. “Even if you’re in a committed, legally recognized relationship,” Weiss said, “it can come back to bite you in the ass.”

While there are no laws in Michigan governing sexting, Weiss said departments have charged public safety Employees with conduct unbecoming or failing to perform their official duties. “Caution is definitely the word of the day,” Farrell said. “Now we have to be worried about our Facebook page and other social media.”

Advising teenagers about the consequences of sexting was also encouraged. Older teens have been charged with crimes when sexting younger teens, Farrell said. “The kids rely on Snapchat to disappear,” but Weiss said. “They can recover (posts). The problem becomes if you’re sending a text or picture to someone who is underage. Michigan Statute prohibits possession of child pornography under 18 years of age.”

An ounce of prevention is worth a pound of cure when it comes to posting online. Farrell cautioned members to avoid posting racial and even political views on social media as well. “Do you want to really be fighting for your job because of something you put on social media?” Farrell said.

“While the police go through your photos, do you have a job?” Weiss said. “You can press the delete button all you want, it’s going to be there.”

Reputations are also impacted. While an Employee is being investigated, they may be ridiculed within the company, regardless of the discipline consequences, Weiss said.

MAPE Labor Relations Specialist Jerald James said it’s a very confusing time for Unions when it comes to social media. While the National Labor Relations Board has published social media Guidance, the Michigan Employment Relations Commission (MERC) does not issue any guidance on the matter. “Nobody has a true grasp where we stand as a Union or an Employee,” James said. “A lot of Employers have not hammered out a policy. If they find out something that looks bad or sounds bad, they want to discipline the Employee. If we don’t have any strong labor language as to what they can or cannot do, it’s a very touchy situation and one that nobody has any clear guidance on.”

Farrell said that puts labor representatives in the unique spot of having to represent Employees terminated for these matters sometimes without any clear-cut policy to base the discipline on.

“We fight to get people their jobs back, but it’s better not to be in that place,” Farrell said. “There’s a huge amount of pain and suffering that goes with that.”

SOCIAL MEDIA DO’S & DON’T
• Understand and follow the Employer’s social media policies.
• Avoid posting and texting sexual, racial and even political content.
• Don’t use Employer provided devices or make questionable posts during working hours.