Transcript Legal Issues to Consider to Avoid EEOC Claims

Facebook, Twitter, and Their Friends:
Managing Employee Issues in the Era of Social Media
MHRP MEETING
THURSDAY, OCTOBER 9, 2014
Presenter:
Kevin T. Sutton
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We used to think we had a pretty good grasp on this stuff …
But “Social Media” is so much more than most people think …
Social Media Permeates … Everything
 Always On
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Accessible on mobile devices
Live tweeting
Interactive television
 Universal
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Everyone wants to “connect”
“Grandma joined Facebook!”
iPhone 6 … 10 million orders
 Consequences
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Example – game attendance
Deterioration of soft skills
“If you can’t say something
nice, ….”
Student Issues Abound
Sampling of recent headlines …
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Lawsuit alleges Mississippi district
expelled him for online posting of
nude photo of classmate
New Jersey district settles lawsuit with
student disciplined for profane offcampus tweet about principal
Parents file claim against San Diego
district after cyberbullying incident led
to student’s suicide
Father of bullied student who
committed suicide sues Illinois district
and producers of anti-bullying video
Oregon district settles student’s
lawsuit over high school dance team’s
social media policy
Former student sues Minnesota
district after “sarcastic” tweet leads to
seven-week suspension
… from the past 5 months
Employee/Staff Issues
 Problematic, Though Generally Less Pervasive
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Intentional v. Unintentional
Recent examples
 Clear Expectations
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Acceptable Use Policies
Digital Communications & Social Media Policies
 Guidance Often Ignored
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“I won’t be the one …”
“Everyone else has it …”
“No one will ever see my posts …”
 Consequences, Be Damned!
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Freedom of speech/privacy advocates
 Generational Issues?
Central Question:
What are the standards that govern
employee conduct?
Challenges
 Uncertainty in Law
 Lack of cohesion from state to state
 Lack of consistency from court to court
 Balance of private rights v. obligation to community
 Blurred lines (public v. private)
 Why?
 Law moves slowly
 Social media outlets emerge too fast
 Example: Snapchat
 Districts forced to be reactive instead of proactive
What We Do Know:
Internet Privacy Protection Act
 Public Act 478 of 2012
 Sec. 3. An employer shall not do any of the following:
(a) Request an employee or an applicant for employment to grant
access to, allow observation of, or disclose information that allows
access to or observation of the employee’s or applicant’s personal
internet account.
 (b) Discharge, discipline, fail to hire, or otherwise penalize an
employee or applicant for employment for failure to grant access
to, allow observation of, or disclose information that allows access
to or observation of the employee’s or applicant’s personal internet
account.
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NOTE: Sec. 4 provides similar restrictions for educational
institutions and students
What We Do Know:
District AU and Other Policies Rule
 Staff Activities on District Network
 Tougher standards
 Less wiggle room
 Easier to investigate
 Easier to discipline
 Recent examples
What We Do Know:
Free Speech Has Its Limitations
 Assumptions Don’t Match
Reality
 Speech of Public Employees is
Closely Scrutinized
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Garcetti v. Ceballos (2006)
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A public employee’s speech
concerning his or her job duties
was not entitled to First
Amendment protection
Lane v. Franks (2014)
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A public employer may not
retaliate against a public employee
for giving truthful testimony, under
subpoena and under oath, where
testifying in court is not part of the
employee’s job
What We Think We Know
 Relative to the World of Social Media …
 The Case of Anna Land
 The “Jobbie Nooner Case”
 Middle school teacher, tenured
 “A simulated act of fellatio with a male mannequin”
 Photos posted to Internet
 Images spread like wildfire – community concerns, etc.
 Terminated by District
 Dismissal reversed by State Tenure Commission (Early 2009)
 STC decision affirmed by Michigan Court of Appeals
(May 2010)
What We Think We Know:
Guiding Principles from Land
 Adverse Effects Doctrine (Beebe)
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Given the presumption of fitness engendered by tenure status, 'just and
reasonable cause' can be shown only by significant evidence proving that a
teacher is unfit to teach. Because the essential function of a teacher is the
imparting of knowledge and of learning ability, the focus of this evidence must be
the effect of the questioned activity on the teacher's students. Secondarily, the
tenure revocation proceeding must determine how the teacher's activity affects
other teachers and school staff.
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[T]he likelihood that the conduct may have adversely affected students or fellow
teachers, the degree of such adversity anticipated, the proximity or remoteness in
time of the conduct, the type of teaching certificate held by the party involved, the
extenuating or aggravating circumstances, if any, surrounding the conduct, the
praiseworthiness or blameworthiness of the motives resulting in the conduct, the
likelihood of the recurrence of the questioned conduct, and the extent to which
disciplinary action may inflict an adverse impact or chilling effect upon the
constitutional rights of the teacher involved or other teachers.
What We Think We Know:
Guiding Principles from Land
 Misconduct Needed Too
 Absent misconduct, consideration of negative publicity
surrounding a teacher's behavior would run afoul of the
purpose of the Teachers' Tenure Act to protect the rights of
competent teachers to teach. Thus, while we agree that it was
unfortunate that students gained access to the photographs in
this case, we expressly disavow any suggestion that negative
publicity alone, absent a showing of underlying professional
misconduct, can provide reasonable and just cause for
discipline under the Teachers' Tenure Act.
What We Think We Know:
Guiding Principles from Land
Adverse Effects + Misconduct =
Grounds to Terminate
 Specific to tenured teachers
 Specific to offsite, electronic communications,
outside District network
 Not exactly the slam dunk we would hope for
Reason to Hope?
 Might Land be an aberration?
 Things to consider …
 Just Cause v. Arbitrary & Capricious
 Discharge/Discipline now a prohibited subject of bargaining
 More favorable STC
 Overall tenor of discussion, increased knowledge about online
activities
 Would the outcome be different today?
 Tough to predict
 Above items suggest yes, but case language a challenge
Illustrative Cases – Ex. 1
 Federal judge dismisses “blogging” teacher’s First
Amendment claim
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Teacher with a personal blog
Negative blog posts about administration and students
Terminated; sued alleging First Amendment harassment and
retaliation
Postings were “far from implicating larger discussions of
education reform, pedagogical methods, or specific school
policies” and “mostly complained about the failure of her
students to live up to her expectations”
Case dismissed
Illustrative Cases – Ex. 2
 Federal suit charges district’s superintendent failed
to end sexting by teacher
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Substitute teacher / nephew of Superintendent
“Thousands” of graphic messages sent through text, email, and
chat to female students, all minors
Superintendent, teacher, and Board member all aware
No action taken against substitute teacher … at first
After substitute arrested, District terminated him
Federal civil rights lawsuit, alleging sexually hostile
educational environment
Illustrative Cases – Ex. 3
 Geissler v. Independent School District #2154
 Teacher seen viewing pornography on computer
 Investigation revealed 200,000 pornographic web site visits in
15 months
 Use of District system
 Terminated; termination sustained - misconduct
 The frequency with which the claimant violated the school
district’s policies and the subject matter of the computer use
was a serious violation of the standards of behavior the
school district had the right to reasonably expect of the
employee
Illustrative Cases – Ex. 4
 Medina County Board of Education (Arbitration)
 Students added inappropriate programs (violent games) to
their computers
 Teacher responsible for supervision
 Written reprimand
 Discipline was not arbitrary and capricious
 Even if not an expert in computers, teacher should have
maintained a more watchful eye on student activities
Illustrative Cases – Ex. 5
 ISD #284
 No just cause to discharge teacher, even though he spent
inordinate amount of time on computer when he should have
been concentrating on teaching students
 Chart used by District to show time spent on web was
exaggerated
 Discipline not warranted under progressive discipline
 Monterey County
 No just cause to discharge employee who read and printed out
co-worker’s email, even though email related to investigation
of employee, where employee had permission to get on coworker’s computer for anti-virus work
 AUP did not provide that info on computers was private
Practical Guidance
 Strong Policies
 All communication driven through District network
 All communication educational in nature only
 Dilemma – 21st Century Learning v. Inappropriate Actions
Prohibition on connecting with current students (encourage?)
 Twitter assignments/communication
 Training / Communication of Expectations is Paramount
 Need for open dialogue with staff/EA
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 Investigation
 Take what comes to you
 Conversation with employee
 Case by Case on how hard to push
Practical Guidance
 Social Media in Hiring
 Background Checks
What are you looking for?
 Beware - Discrimination
Issues
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Remember IPPA
 Discipline/Discharge
 Look for nexus between
conduct and educational
impact
 Misconduct?
Questions?
Resources/Contact
www.LuskAlbertson.com
[email protected]
@LuskAlbertson
248-988-5695 - Direct
www.LuskAlbertson.com/mhrp
734-377-7400 - Cell