Many of us have seen the videos, or perhaps been unfortunate and unwilling participants in a “First Amendment audit.” A member of the public (also known as an “auditor”) who will enter a government/public building unannounced, armed with a smartphone camera, and aggressively demand front-line employees and supervisors answer to such questions as “What is your name?” “What are you working on?” or “How much is your boss paid?” These individuals may ask what is behind a closed door, where a hallway goes, or quiz employees on what rights are guaranteed in the First Amendment of the U.S. Constitution. Some may use profanity and insulting language to attempt to create an atmosphere of chaos and confusion so that public employees will “lose it” and “fail” the audit by becoming emotional, angry, humiliated, or perplexed. These individuals’ actions are intended to test whether public officials will respect and uphold their constitutional rights, especially, in this age of the ubiquitous smartphone, the right to film in a public area and its public employees. The auditors are walking a thin legal line, and there’s not much that authorities can do to prevent their behavior. An employee can’t even demand that an auditor identify themself. 

These audits seem to be gaining popularity because auditors will post the “epically failed” audits on YouTube or other social media platforms to make money through “likes” or advertising. Some of these individuals sell merchandise on their sites for revenue. The more a government official flips out, the more chance they will have to make cash. Some auditors intend to become disruptive in the hope that they will be roughed up by an employee or law enforcement so that they can press charges, file lawsuits, and make money through a cash settlement. 

If you find yourself in charge of handling a First Amendment audit, here are some general guidelines:



• Understand the First Amendment: Familiarize yourself with the First Amendment of the U.S. Constitution, which protects the rights of free speech and freedom of the press. Recognize that individuals have the right to record and photograph public officials in the performance of their duties in a public space.
• Designate Public Areas: Clearly identify public areas within your agency where individuals are allowed to record or photograph without interference. Designate areas restricted to the public as “employees only” or other verbiage. This helps avoid misunderstandings and ensures that public access is maintained.
• Educate and Train Staff: Ensure that employees are aware of the importance of respecting constitutional rights of individuals while maintaining order and security. Have a plan to help employees deal with an audit should it occur. A quick web search will provide lots of First Amendment videos that demonstrate what not to do!
• Keep Your Cool: Remain calm, composed, and professional during an audit. Avoid confrontations and inflammatory remarks, as these may escalate the situation. The auditors are hoping for a reaction to post, so by being polite and courteous, they are not getting the dramatic video they are hoping for.
• Don’t Interfere with the Recording: Unless there are valid and specific reasons (such as safety concerns), do not interfere with an individual’s right to record or photograph public spaces and officials. Only if an individual becomes threatening or creates a safety risk should an employee intervene. If an intervention is unsuccessful, contact law enforcement.
• Provide Information: If an auditor requests information that is a public record, provide it within the bounds of the law and agency policy. Transparency can help ease tensions.
• Document Incidents: If an incident occurs during an audit, document the details, including the actions taken by both the person conducting the audit and entity personnel. This documentation can be useful in case of legal inquiries.

As frustrating as these audits can be, maintaining a balance of respecting constitutional rights while ensuring the safety and security of public spaces is crucial during First Amendment audits. Be calm, compliant, and prioritize the well-being of everyone involved. Following the above suggestions may prevent a “failed” audit, lessen the chances of a major disruption of the entity’s work, and maintain the good reputation of public officials in what can be a potentially stressful situation.

For more information on this topic, see POOL/PACT HR’s Archived HR Alert,

Dealing with First Amendment Audits.

This article is the third in a series in which each of the components reviewed during a POOL/PACT Human Resources (HR) Compliance Assessment Phase I will be highlighted. In this article, we will cover master personnel files and the significant role they play in maintaining job-specific and performance-related information on employees’ entire tenure with the organization (from new hire through termination and beyond*).

*The Nevada State Library, Archives, and Public Records “Local Government Record Retention Schedules” require master personnel files to be maintained for ten years after termination of the employee, unless the employee is terminated during their probationary period whereby the retention period is three years from the termination date.

Employees’ master personnel files should only contain documents and records that support employment actions concerning the employee. Any information pertaining to membership in a protected class, or anything not related to the employee’s position (e.g., benefit enrollment forms) should not be housed within the master personnel file.

Due to the confidential nature of the information contained within each employee’s master personnel file (and other personnel files such as background check, payroll, and medical file), all personnel files should be housed under lock and key within a secure location. Most member organizations who have participated in the Phase I Compliance Assessment Program secure their files in a locked filing cabinet usually located in the HR department or an office in upper management. To ensure the confidentiality of the information within the files, access to the files themselves should be limited to those individuals who have a business need-to-know reason for accessing the personnel file which should be outlined in policy. Policies should also delineate that the employees themselves may view the contents of their master personnel files upon request, as well as requesting copies of any or all documents within the file. Human resources personnel usually monitor the employees’ review of their files. As emphasized in all POOL/PACT HR trainings, webinars, and HR Briefings, the employee should be made aware and knowledgeable of all information contained within their master personnel file. For additional information on the recommended contents for not only the employees’ master personnel files, but all employees’ files, please see POOL/PACT HR's Briefing, Personnel Records Maintenance at www.poolpact.com.

Member organizations do not need to wait until a Phase I Compliance Assessment is conducted to have their practices for the maintenance of their master personnel files reviewed. POOL/PACT HR Business Partners (HRBP) are available to assist members in reviewing and revising their current practices for the maintenance of employees’ master personnel files. Please feel free to contact your HRBP for assistance.