We are struggling with a freedom of expression issue here at our library. When a staff member posts on his/her personal Facebook page something to do with the library, whether positive, negative, or neutral, what rights does the Library have, if any? We need to be able to differentiate the "official" library news, which gets posted by an administrator, from the library news that get posted/shared by a staff member on a personal Facebook account. Are there any legal issues surrounding this situation that we should be aware of as we begin to create our Public Relations policies?
The lawyer answers…
This is an area that library leadership has to be very careful about. While the laws, regulations, and policies governing library employees vary (based on the type of the library, and the type of institution the library/archive might be part of), there is a growing body of case law ruling that employers may not discipline—or chill—employees’ use of social networking to comment about their work experience.
As but one example, a recent National Relations Board (NLRB) decision1 barred a company from using the following employee handbook provisions:
Prohibiting the posting of “embarrassing, insulting, demeaning or damaging information” about the employer, its products, customers or employees.
Barring discussion of all information gathered in conversations, emails, and meetings as “confidential and proprietary.”
Prohibiting employees from referencing or citing employer’s members, employees or vendors in social networking without their express consent.
Maintaining a rule in a “Social Networking Guideline” that prohibits the use of the employer’s name, logos or trademark without the employer’s consent.
Although the case cited is from a union environment, the NLRB has claimed jurisdiction for non-union workplaces where federal grant dollars fund operations2. And of course, municipal-owned libraries, who might not be subject to NLRB jurisdiction, have to worry about First Amendment concerns—a different but not less critical priority. This well-developed case-law means I can give a very brief, decisive reply to this question:
Policies related to employees’ personal social networking should be finalized with the input of legal counsel, who will help you consider the goals of the policy, to comply with the law. Once developed, such policies should be routinely assessed by your institution’s attorney.
That said, there are obviously many good reasons for a library to have a strong, distinct, and official presence on social networks—and the good news is that this can be accomplished by an approach that is more affirmative than proscriptive. The legal/operational tools of a strong social media presence are:
Well-established library trademarks (name and logo);
A domain name that matches the trademark name, if possible;
Consistent use of those marks for social media sites/posts;
An “official voice” (tone, style) for posts and content;
Selecting and updating the utility used (FB page, Twitter, etc.) to make sure the settings support the tone you want;
A consistent approach to hosting (or not allowing) community dialogue;
Well-established parameters, consistent with the library’s mission, for how and why the page is operated;
A person who has routine maintenance of the social media resources written into their job description or volunteer letter3 (and, if possible, at least one back-up person);
A strong internal policy, well-communicated to employees, that ties this all together. This policy should not reference personal social media.
By cultivating a strong social media presence, ancillary content by employees and volunteers, on their own personal pages, will be made less confusing. This is a tactic worth considering, because as shown above, restricting employees’ ability to discuss work via social media is fraught with legal risk.
The foresight and caution showed by this question is very wise, indeed!
1 NLRB Cases 16–CA–107721, 16–CA–120055, and 16–CA–120910 (July 15, 2016)
2 Hispanics United of Buffalo, Inc. and Carlos Ortiz. Case 03–CA–027872 (December 14, 2012). This case, a seminal decision in this line of case law, shows how these issues arise in day-to-day operations. It is written in plain language and is very instructive on this topic. The board decision can be found here.
3 If a volunteer does this, checking with your insurance carrier to make sure they are covered for the activity is a smart thing to do!