A legal grey area exists when it comes to a public employer's ability to regulate an employee's use of social media when he/she is off-duty. In some instances, an employee’s social media presence off-duty may be problematic and even dangerous for a municipality. An example of this is when police officers post inappropriate photos of themselves online while identifying themselves as public safety officers or undercover officers or post information that could comprise the integrity of a law enforcement investigation. These issues have prompted many police and fire departments to adopt a department-specific social networking policy.

A municipality may want to consider the following in creating their social media policy:

• Authorized use of uniforms, insignia, emblems, municipal logos and anything related to municipal business
• Anonymous “blogging” or information sharing regarding municipal business
• Discussing work issues or personal thoughts about municipal strategies online
• Protection of sensitive information
• Security of undercover public safety work (present and future) such as an employee’s future capacity to move into an undercover position

A municipality should have clear policies in place to address certain off-duty online activity of employees. In public service, the off-duty behavior standard may be set high, particularly for public safety employees.

Because the test for determining whether an employee's off-duty use of social media can result in discipline, or is truly speech that is protected under the first amendment, is fact specific, it is important for you to consult legal counsel and your human resources professional before disciplining an employee for this type of conduct.