Reprint O&A News February 19, 2011
By: Tommy Eden, Attorney
Tiffany Marshall was fired from her position as probationary firefighter trainee in Savannah, Georgia after refusing to take down revealing photos on her “private” MySpace page. Tiffany had re-posted on her MySpace page official photographs from the City’s website in her uniform with members of a local search-and-rescue team. However, Tiffany also posted on her MySpace page revealing modeling photos. Upon being tipped off by an anonymous caller that Tiffany’s MySpace page may have conflicted with the department’s image, Savannah Fire officers were able to view the photos and print out Tiffany’s public MySpace page.
The City’s Fire Chiefs then confronted Tiffany with the photographs and an oral reprimand for violating a new Savannah Fire policy (issued after learning of Marshall’s web page) that prohibited using the department’s identity for personal, recreational or fraternal endorsement without permission. The policy stated that failure to adhere to the policy would subject the employee to disciplinary action. During the meeting with the Chiefs, Tiffany refused to remove the official photos in uniform and erupted in anger, accusing other firefighters of violating the same policy and demanding to know who else had seen her photos. She then refused to reveal the names of other, male firefighters who had posted photos online in violation of the new policy. Three days later Tiffany was fired for insubordination.
The United States Court of Appeals for the Eleventh Circuit decided in its unpublished Marshall v. Mayor & Alderman of the City of Savannah opinion that an employee can be fired for violating an employer’s rules and regulations pertaining to photos and images on a public website. Marshall failed to show that similarly situated employees, whether white or black, male or female, were treated differently to support her claims under Title VII and Section 1983 or that she was fired for any reasons other than insubordination and failure to adhere to policies. The Court did not address the trial court’s decision that Marshall’s MySpace page was not entitled to First Amendment protection.
Common Sense Counsel: an employer’s social media policy should clearly define the limitations upon employees’ work-related use of social media channels requiring: (1) employees to identify their association with the employer whenever an employee is using social media to comment upon the employer’s products or services (see Social Media Postings Risky for Employers article July 16, 2010); (2) unless an employee’s blogging or online postings are officially sanctioned and reviewed by the employer, the employee should be required to use conspicuous disclaimers that his or her views do not represent the views of the employer; (3) cover issues such as the use of photographs and names of co-employees or customers; and (4) employees should be reminded of the employer’s right to lawfully and respectfully monitor their social media postings and other online activities for compliance with the employer’s policies, but be careful in your policy not to restrict employees’ right to engage in “protected concerted activity” under the National Labor Relations Act as did a Connecticut ambulance service who recently entered into a settlement with the NLRB and changed it social media policy.
Tommy Eden is a Lee County native, an attorney with the Opelika office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at firstname.lastname@example.org or 334-501-1540.