Social Media Use by Federal Employees
For the past 7-10 years, we have seen social networking issues continue to arise in our representation of federal employees in the federal workplace. The bottom line is that it general makes sense to avoid using social media in the federal workplace. Numerous issues keep arising with federal 
employees being subject to discipline or even removal for use of social media. We frequently represent federal employees accused of misconduct involving social media in the federal workplace. Some tips and thoughts follow.
Pitfalls of Social Media Use in the Federal Workplace
Federal agencies use information posted on Facebook, X, Instagram, Linked In and other social networking sites when they discipline federal employees. Many federal employees have had to appeal these issues to the Merit Systems Protection Board (MSPB) when they receive serious discipline or removal.
Anything that is posted on a social networking site like Facebook or X can potentially be brought back into the federal workplace. Some federal agencies have removed federal employees for their use of social media. Delfora v. Dep’t of Navy, 2024 MSPB LEXIS 4141 (July 15, 2024) (Appellant removed, in part, for posting an article on workplace violence on social media; Vidal v. Army, 2011 MSPB Lexis 4788 (Aug. 5, 2011) (Agency removed employee because of alleged anxiety producing comment on Facebook that was reported at work).
Other Social Media Cases of Concern
Other federal agencies have also attempted to discipline federal employees where they have called in sick, but then used posted information on social networking sites to show that the employee was untruthful in using sick leave. Hunter v. Dep’t of Navy, 2011 MSPB Lexis 3159 (May 11, 2011) (involving allegation that the appellant had called in sick to watch the Superbowl but had posted information on Facebook that he was not really sick).
Other issues that seem to be developing where Federal employees are found to have posted comments to social networking websites while at work (on duty). Sometimes, these have resulted in charges that the federal employee has been compensated for person time spent on social media. All sorts of potential issues could develop in such a situation. If an agency is looking to discipline a federal employee, they could potentially charge them for “time card” issues alleging that they were receiving pay but not actually working or perhaps for neglecting their duties while they were on Facebook, X, etc.
The Use of Facebook, X, Instagram and Other Social Networking Websites at Work
Typically, the use of Facebook and other social media websites by federal human resources officials and supervisors at federal agencies has not been in the form of direct monitoring (which would be problematic and potentially illegal). However, other federal employees or supervisors have reported the social media content of other employees to Human Resources personnel in the past. As you see the real issue that has developed in the context of federal employment is that other co-workers often times print out the postings made by other federal employees and then report them.
Sometimes these individuals, who are “friends,” “followers” or connections on social networking sites allege that the federal employee involved has posted inappropriate, discriminatory or even harassing comments. The most likely situation would be where a federal employee posts inappropriate or angry comments about their supervisor and another co-worker prints out the comments and brings them into work.
Once this information is in the hands of the federal agency, often times they can find a legitimate connection to incorporate the issue into a disciplinary or even a removal action. While there is a right to some privacy and even the First Amendment, often times a connection (or nexus) to the Federal workplace can be found to enable the Federal agency involved to take disciplinary action related to off duty activities. The MSPB and the Federal Circuit have generally held that off duty activities can be subject to discipline where it could cause the public or co-workers, to question or lose confidence in the Federal agency involved. See Stump v. Department of Transportation, 761 F.2d 680, 681-82 (Fed. Cir. 1985).
Know your Agency’s Rules on the Use of Government Internet or Computers
Lastly, it is important to take a look at your agency’s policy on use of government internet or computers. Often, many policies will restrict social media usage. One example is from the Department of Commerce and can be found here.
Contact Us
Be careful what you post on social networking sites. Also, be very careful about sharing access to your social networking sites with others at work in the federal workplace. If a federal employee or supervisor finds themselves in a difficult situation as a result of using social networking websites, they should contact an attorney familiar with these types of Federal employee issues to advise them in how to best to defend against disciplinary investigations or disciplinary actions that result. We can be contacted for possible representation in these cases.
On January 20, 2025, President Trump issued a Presidential Memorandum (PM) directing federal agencies to, as soon as practicable, take all necessary steps to terminate remote work arrangements and require employees to return to work in person at their respective duty stations on a full-time basis, provided that the department and agency heads shall make exemptions they deem necessary. On January 22, 2025, more detailed guidance was provided on the Return to Office through the Office of Personnel Management. The OPM guidance instructs agencies to revise their telework policies to require employees to work full time at their respective duty stations, unless excused from this requirement based on disability, qualifying medical condition, or other compelling reason certified by the agency head and the employee’s supervisor. OPM’s guidance recommends that agencies be in full compliance with the PM within 30 days.
Things to Keep in Mind
Communicate with Leadership
One of the first key things to keep in mind with the Return to Office order is to maintain open lines of communication with your supervisors and leadership. Every employee’s circumstances will be different and making sure to keep your supervisor and leadership informed of your specific situation and any barriers you may have for a Return to Office may help down the road in trying to obtain an exception to the requirement. Such exceptions will need to be based on compelling reasons and be approved by the employee’s supervisor and agency head. It is not yet clear what will qualify as compelling reasons, but one example that has been discussed pertains to military spouses who work remotely. It is likely that there will be other exceptions as well.
Medical Conditions, Disability, and Reasonable Accommodation
The OPM guidance instructs that employees can be excused from the Return to Work order based on disability or qualifying medical condition. For employees who already have such conditions on file with their agency and are working with Reasonable Accommodations in place, employees should make sure that these accommodations address telework or remote work to ensure that they remain in place as the Return to Office process unfolds. For those employees who have a disability or qualifying medical condition, but do not have a reasonable accommodation in place yet, the employees should work quickly to initiate those requests to seek accommodations that will address their specific conditions and needs. The Rehabilitation Act still protects reasonable accommodations that can include telework.
Union-Related Issues
Some employees who are members of bargaining units within federal agencies may be covered by previously negotiated collective bargaining agreements that address remote work and telework. Currently, it appears that OPM will not interfere with those agreements. However, it is likely that efforts may be taken to change those agreements. Such efforts will take time to unfold but employees should remain aware of their Union’s activities in this regard. Furthermore, the likelihood of litigation over many of these return to work orders by national unions remains high.
Avoidance of Discipline
Once deadlines are established for Return to Office, employees who fail to do so and are not on approved reasonable accommodations or who do not have an exemption based on compelling reason could run into disciplinary issues for failure to follow directives. In the event that such discipline is issued, employees should be cognizant of their rights to respond to such disciplinary actions and challenge those actions through established procedures.
Deferred Resignation
Federal employees were recently notified, on January 28, 2025, of an option for a deferred resignation. The deferred resignation instructs employees to make an election by February 6, 2025, and will theoretically provide employees with leave pay until September 30, 2025. For those employees who cannot physically return to the office, this may seem like a reasonable alternative. However, federal employees should be cautious of this program and seek legal advice before making any such election. The legal basis for the program is not clearly established which may subject the program to legal challenge. There is also the potential that the deadline could be extended or curtailed. It is just too soon to tell.
The program’s email also fails to provide much-needed clarity around how the program would be implemented, whether administrative leave would be utilized, who would be required to continue working, and how an election may impact an employee’s ability to transfer to a different position. Due to these various unknowns, employees should speak with experienced legal counsel before electing to participate.
Contact Us
It is important for a federal employee with telework issues or considering the deferred resignation issues to speak with counsel. Berry & Berry, PLLC represents federal employees in these types of federal employment issues and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding these or other federal employment issues.
Defending Thousands of Federal Employees Over the Past 25 Years in Disciplinary Cases
Approximately 20,000 federal employees are subject to disciplinary actions a year. Our nationwide federal employee lawyers represent federal employees in these disciplinary cases before their federal agencies. Each disciplinary action defense is unique and should be evaluated by attorneys familiar with federal employment law.
The Disciplinary Process for Federal Employees
There are different types of disciplinary actions for federal employees. These vary and can include letters of counseling, reprimands, suspensions, demotions, and removals. For most serious disciplinary actions, referred to as adverse actions (usually removals), a federal employee first receives a notice of the proposed discipline and is given the opportunity to respond. A proposal will have an explanation of the conduct or issues leading to the proposed disciplinary action.
If a federal employee is issued a notice of proposed disciplinary action, they will have the opportunity to contest it before it becomes final. Most permanent federal employees (past their probationary period) are entitled to significant due process rights. In responding, a federal employee can choose to provide a written response, an oral response, or both. We often recommend providing both oral and written responses.
Request Disciplinary Materials (Materials Relied Upon)
In most disciplinary cases, it is important for federal employees to request all of the materials that have been relied upon by the agency in proposing the discipline. Sometimes these are attached to the proposal, and other times they must be requested separately. We request these materials before responding on behalf of federal employees at the beginning of a case. These materials provide the basis for the proposed disciplinary action.
Draft a Written Response
It is important to prepare a complete written response to the allegations in proposed disciplinary cases. These responses are typically 7 to 20 pages in length, depending on the underlying facts and number of charges and specifications. Most written responses are typically due anywhere from 7 to 30 days after a proposal is provided to a federal employee. The written response will address the alleged charges of misconduct or performance and any relevant mitigating factors (also known as the Douglas factors). In our responses, we also provide available evidence that contradicts the charges. Additionally, we attach declarations, affidavits, good performance records, character support letters, and other helpful exhibits.
Presenting the Oral Response
The oral response portion of a federal employee’s response can be very important. While written responses can be critical in refuting specific allegations, there is something very important about personally meeting with a Deciding Official that is making the decision. We think that in serious cases, oral responses can make a significant difference in outcomes. We represent federal employees during oral responses. Typically, during an oral response, the federal employee, their attorney, and the Deciding Official (often with their counsel) will be present. The attorney and federal employee will get a chance to argue against the disciplinary action directly to the decisionmaker. After the oral response, there is usually a few weeks to a few months until a decision is made on the proposed discipline. During that time, there is also the possibility that attorneys from both sides can resolve the discipline through settlement.
Appeals from Adverse Disciplinary Decisions
If an unjust disciplinary decision is sustained by a federal agency, there are various options for federal employees to appeal further. If serious enough, an individual can appeal to the Merit Systems Protection Board (MSPB). Other potential appeals can include filing Equal Employment Opportunity complaints or whistleblower appeals, where applicable. There are also a number of other types of appeals that may be brought, but legal advice is important when making such decisions.
Conclusion
When a federal employee receives or anticipates a proposed disciplinary action, it is important to have an attorney represent or advise them from the beginning. Our lawyers represent federal employees nationwide in all types of federal employee discipline. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.
