With the terrific title “Can’t Escape From the Memory” William A Herbert, the Deputy Chair of the New York Public Employment Relations Board, has created a thorough analysis of the interaction between social media use and public sector law. Part of my job is traveling around Missouri and educating public school employees about the legal, and practical, realities of using social media. Mr. Herbert’s paper does a great job of analyzing how social media use by public employees implicates free speech rights, privacy rights, and collective bargaining rights and is a must-read for public employees who regularly use Facebook, Twitter, YouTube, etc. Unfortunately, the only state-specific labor information is for New York, Michigan, and Florida, so public employees in Missouri will need to keep in mind that our legal structures here are a bit different.
Hit the jump for a brief analysis of the differences for Missourians and the paper’s official abstract.
Missouri labor law is currently a mixture of statutory and constitutional rights. The Missouri Constitution contains a clear pronouncement that “employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” However, soon after this right was established in the Constitution, the Missouri Supreme Court limited the right only to private employers (I wanted to link to the relevant case, Springfield v. Clouse, 206 SW 2d 539 (Mo. 1947), but Google Scholar actually failed me on this one). The legislature then extended the right to a few select groups of public employees through state statute. In 2005, Missouri NEA filed a lawsuit against the Independence School District that wound up in the Missouri Supreme Court where they returned the right to organize and bargain collectively to all employees in Missouri (Independence-NEA v. Independence School District). Of course, this then placed public employees who had not been covered by the prior collective bargaining laws in a strange place: they had a constitutional right to bargain without any statutes for guidance. Which is pretty much how things stand today, though the Missouri Supreme Court has issued some additional decisions clarifying the bounds of the constitutional right (Eastern Mo. Coalition of Police v. Chesterfield and Eastern Mo. Coalition of Police v. University City [these two were consolidated together] and American Federation of Teachers v. Ledbetter).
Therefore, Missouri employees reading through “Can’t Escape From Memory” should bear in mind that their legal rights may be different from the ones discussed in the paper. For more information about the paper itself, here is the abstract:
The Web 2.0 communicative revolution is impacting many fields of law including labor and employment law. This article focuses upon the application and impact of statutory and constitutional doctrines on the use of social media in public employment in the United States. It examines social media under public sector labor law through a cross-sectoral analysis of two primary issues: the scope of protected social networking activities, and the contours of employer policies. The article compares and contrasts developments under the National Labor Relations Act with developments under collective bargaining laws and due process statutes in three states, and under the First Amendment. Through this comparative analysis, the article highlights the distinctions and similarities of public sector labor law and their implications for the future.