Submission Date:
Question:
Recently, a page at the library made some comments that were less than flattering about how the local town was handling a new subdivision. The town supervisor came to me (we are an association library and not part of the town government) and asked if our personnel handbook had any language about social media use. He shared that the town personnel handbook had a clause about not disparaging the town when you are an employee. Our handbook does not have specific language on this matter, instead stating that “Appropriate use of the Internet, email and social media is expected.” (There are more clauses about how and when to use the libraries social media, but this seems to be the only line about personal social media)
He and I discussed the matter further and he made a suggestion that the library should look in to whether or not a non-disparagement clause should be part of our social media policy. I got the impression he further thinks that should apply to our major funders (mostly, the town).
How, if at all, should libraries handle personal social media use by employees, especially in regards to usage that might disparage the library or the town that funds us?
Answer:
Some questions are tricky, some questions are complex, and some questions are simply a Huge Spider Web of Extremely Intricate and Dangerous Contingencies.
Not to be too dramatic, but this question is that last one.
What creates this tangled web?[1] Let’s explore the threads:
Thread One: The ALA Code of Ethics
Because the Code requires advocacy for proper working conditions, the ALA Code of Ethics may actually encourage what could be perceived as “disparagement” of an employer or financial supporter.
Here is the provision:
We treat co-workers and other colleagues with respect, fairness, and good faith, and advocate conditions of employment that safeguard the rights and welfare of all employees of our institutions. [emphasis added]
So, before adopting a restriction on employee communications, a library must consider this ethical obligation.
Thread Two: State and Federal Law
Both state and federal law can protect an employee’s right to complain about their working conditions.[2] And while not every type of complaint is protected,[3] given recent policy statements and cases (see footnote 2), it is wise to not paint what's barred with a broad brush.
Thread Three: State and Federal Constitutions
For a public library or municipality, barring disparagement of the municipality risks violation of both the state and the federal constitutions. I know that doesn’t apply directly to the library in question (since it is an association library and thus non-governmental), but it bears mentioning.
As does...
Thread Four: Civil Service
For Civil Service employees, if discipline for “disparagement” can be portrayed as “retaliation,” there could be a claim under Civil Service Law Section 75-b.[4]
And finally we have...
Thread Five: Fear
While not precisely a legal issue, limiting employee speech can be a major drain on morale, which in turn can lead to employee discontent, which in turn can lead to legal issues. To avoid that, it is best to aim for an environment that solicits and welcomes feedback, not one that stamps out criticism.
So, what can a library—mindful of its reputation and how its employees can impact it—do to protect itself?
Certainly, a library can require an employee writing or speaking publicly about the library to emphasize that they are only speaking for themselves.
Second, any employer can and should emphasize to employees that harassing, discriminatory, threatening, and abusive conduct—in and out of work, online and offline—may need to be addressed by the employer if it affects the work environment.
And third, a library can affirm that all its employees have a right to develop and express their own opinions, so long as they do not use library resources to convey them (no political candidates endorsed on company time!).
The language the member describes in the municipal policy sounds to me like a holdover of policies from the early 2000s. For the reasons discussed above, this kind of language has been removed from many policies over the past two decades. Case law and regulatory agency commentary (a tiny sampling of which are cited in this answer) show why.
Thank you for joining me in the spider web with an excellent question!
[1] I know a “tangled web” is usually a metaphor for lies. But it works for legal risk, too, since there are places where you can get caught and places where, with enough space, you can get through just fine.
[2] The Equal Employment Opportunity Commission identified the right to "access the legal system" (including by complaining) as an enforcement priority for 2024, the National Labor Relations Board bars non-disparagement clauses in severance agreements, and New York State bars punishment for complaining about discrimination.
[3] Threats, harassment, discrimination, bullying, criminal conspiracy... so many things that can ride along with “disparagement” are not protected.
[4] I won’t get into that too much here, since the question is from an association library, but a good example of a retaliation claim under Civil Service law 75-b Scheiner v. N.Y. City Health & Hosps. Corp., 152 F. Supp. 2d 487 (2007).
