UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES – Speech

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An employer can only restrict employees’ social media activity based on a showing of “special circumstances necessary to maintain production or discipline.” (Napa Valley Community College District (2018) PERB Decision No. 2563, p. 19 (Napa).) Indeed, while the Board held in Napa that e-mail is “a fundamental forum for employee communication in the present day, serving the same function as [employee] lunch rooms” (ibid.), the same is true for social media. (See, e.g., Alameda Health System (2023) PERB Decision No. 2856-M, pp. 7 & 34 [MMBA protected Facebook, Instagram, and Twitter posts showing employee wearing a garbage bag when there were insufficient gowns during COVID-19 pandemic].) If anything, it is normally more challenging to show special circumstances in restricting off-duty posts to a platform such as YouTube, which public employers neither own nor operate. Here, SunLine did not establish special circumstances. In fact, SunLine provided no evidence that viewers of Garcia’s videos, or viewers of any social media posts about SunLine, have ever been at significant risk of confusion because employees wore SunLine uniforms or failed to state that they were not speaking for SunLine. (pp. 21-22.)