For many years, smart job seekers have known that prospective employers may consider Facebook, Twitter, YouTube or other social media accounts, when making hiring decisions. What many don’t know is that now some jobs require prospective employees to sign waivers or disclose passwords to prospective employers to use in their hiring process. According to Kevin Johnson’s article, Police Recruits Screened for Digital Dirt on Facebook, etc., “Some agencies are demanding that applicants provide private passwords, Internet pseudonyms, text messages and e-mail logs as part of an expanding vetting process for public safety jobs.” Although it is unclear how many agencies actually demand passwords, as per The International Association of Chiefs of Police’s (IACP) Survey on Law Enforcements Use of Social Media it is clear that 37% of the 728 participating law-enforcement agencies use social-networking tools for “vetting/background investigations” of potential employees.
Many privacy and free speech advocates feel these intrusions have gone too far. However, in Walter Pacheco’s article, Cop Recruiters Check Our Prospects’ Social Networking Habits, Captain Angelo Nieves of the Orange County Sheriff’s Office explains that their goal is to “balance the needs for privacy and simultaneously practice all due diligence in the background process to remove any candidate that is lacking in the quality or moral fiber we are in search of.” Later, Pacheco quotes Jim Pasco, Executive Director of the National Fraternal Order of Police: “Candidates do not check their rights at the station’s door,” Pasco said. “We need to develop a policy of best practices that reflects the need for information in hiring the best candidate and ensure their civil rights and privacy is not intruded on.” However candidates do, in fact, check some of their rights at the station’s door. Prospective public safety employees have restricted free speech and privacy rights simply because they are public employees. (This is not true for a private employee because when a private employer infringes on an employee’s rights to privacy or freedom of speech there is no government action. Rather private employees are protected by statutes, employment contracts or union regulations.)
In her article, Speech and the Public Employee, Lisa Baker clearly summarizes the 2-prong test developed by the Supreme Court to determine whether a public servant’s speech is protected by the First Amendment and, thus, protected from retaliatory action. First, the Court must decide “If the employee is deemed to be speaking as a citizen on matters of public concern–in other words, the threshold tests established under Connick, Roe, and Garcetti…” If that threshold is met, “the First Amendment will offer protection only if the interests of the employee in engaging in the expressive activity outweigh the substantial interests in maintaining efficiency of operations of a law enforcement.” Thus, the Court will only do the balancing test, if the public employee is speaking as a citizen on matters of public concern.
In an excellent article entitled, Facebook, Free Speech & Firing Words Cops’, Valerie Van Brocklin explains, “The public concern requirement is determined by looking at the content, form and context of the speech.” Furthermore, the Court in City of San Diego, California et al v. John Roe wrote, “[P]ublic concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” Then in 2006, the Supreme Court in Garcetti v. Ceballos found that a public employee’s speech made pursuant to the employee’s official duties is not protected by the First Amendment, even when it is a matter of public concern. “We hold 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.” Consequently, public employees’ First Amendment right to speak out on matters of public concern is limited merely by their public employee status. (Note: public employees may be protected by statute(s).)
Many public employees don’t consider this limitation when posting to social media sites like Facebook, Twitter, YouTube, etc. In Johnson’s article he gives two examples of potential police officers who have been disqualified because of their social media presence. In Massachusetts, a recruit’s text messages revealed past threats of suicide, resulting in his disqualification. In New Jersey, a candidate was disqualified for posting provocative photographs of himself in the company of numerous scantily clad women.
Although public employees, particularly police officers have been subject to extensive background checks as well as physical and mental evaluations for many years, social media has provided a new forum for potential employees to communicate as well as an informational goldmine where recruiters vet potential employees. While this seems unjust, it may be a necessary evil. Even if recruiters don’t check police officers’ social media accounts, defense attorneys will; and they will use that information to undercut officers’ credibility in court. In fact, the Fraternal Order of Police has announced that they will publish an opinion on this issue later this month.