Don't Hate Me Because I'm Beautiful

Posted by Molly DiBiancaOn June 4, 2012In: Discrimination, Fair Labor Standards Act (FLSA), Gender (Title VII), Hiring

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Sex, drugs, and rock 'n roll. Employment law can involve any or all three. Which explains why it takes a certain personality to really love this gig. Lately, though, I've seen a bevy of employment-law stories involving claims based on or involving beautiful people.

Last week, for example, I reported on yet another story involving a woman who claims she was fired from her data-entry job in a lingerie warehouse for being too sexy. [Ed. Note: This story, which involves a woman alleging she was too sexy for her job in a lingerie warehouse owned by Orthodox Jews, should clear up any doubt about why I love my job.] This wasn't the first story of this kind, though. I've reported about at least two similar claims in the past couple of years. And I recently reported about a gender-discrimination claim based on the plaintiff's part-time job as a dancer.

Michael Schmidt of the Social Media Employment Law Blog reports a different type of case involving exotic dancers. [Ed. Note: Michael's post is overflowing with hilarity in the form of well-crafted double entendres. For a great read, be sure to jump over to his original post, Slowly Stripping Away Privacy Rights. Brava, Michael!] In In re Penthouse Executive Club Compensation Litigation, No. 10-cv-1145 (KMV) (S.D.N.Y. May 10, 2012), the employer-defendant sought to compel one of the plaintiffs, an "entertainer in the Penthouse Executive Club," to produce nine pages of Facebook messages that she'd exchanged with other plaintiffs and with non-parties about others joining the FLSA suit.

The judge considered the motion in the same way any similar motion would be considered. She found that the Facebook messages sent to non-parties were "prepared in anticipation of litigation" and, as such, were protected by the work-product doctrine because they were "descriptions of conversations with Plaintiffs' counsel regarding litigation strategy, as well as responses to questions about the lawsuit." On the other hand, Facebook messages sent by non-parties to the plaintiff were not subject to the same protections and had to be produced.

And here's a twist on the theme. Instead of claims brought by beautiful people, here's a story brought against beautiful people. The owner of Marylou's, a coffee shop in Rhode Island known for employing beautiful baristas donned in pink shirt, is speaking out against the EEOC. The coffee shop has been under investigation for more than a year by the federal agency, which claims to be investigating the business' hiring practices. There has not been a complaint of discrimination, though, and many members of the community are outraged at the expenditure of federal funds and the cost imposed on the business in the absence of any actual charge of wrongdoing.

Maybe the EEOC is just trying to balance out all of those don't-hate-me-because-I'm-beautiful claims.

Update: Social-Media Password Legislation

Posted by Molly DiBiancaOn June 1, 2012In: Social Media in the Workplace

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Several states have bills pending that would prohibit employers from requesting or requiring an employee's or applicant's social-media password. Maryland was the first state to pass such a "password-privacy" law.

Delaware's bill goes to the House of Representatives tomorrow. Readers know how troubled I am by how broad the legislation is--including it's prohibition on a supervisor sending a Facebook friend request or a LinkedIn request to connect to any other employee in the same company, and its prohibition against an employer's ability to investigate potential wrongdoing by an employee.

Last week, the Illinois Senate approved its own version. Several Illinois employment lawyers seem to have concerns about their State's new law similar to the concerns I have about Delaware's. For example, Jeff Nowak, who writes the blog, FMLA Insights, expressed his concerns about the potential implications of the Illinois law. And the title of a post by Philip Gordon, on Littler's Workplace Privacy Counsel blog, captures it perfectly:

Illinois' New Social Media Password Law Raises Substantial and Unjustified Obstacles to Employers' Legitimate Business Activities.

Ohio is the latest state to hop on the bandwagon, reports Jon Hyman on the Ohio Employer's Law Blog. Not surprisingly, Jon has identified some problems with the proposed law, many of which are similar to those I've identified with the Delaware law. Porter Wright's Brian Hall expressed similar concerns about the Ohio legislation.on his firm's blog, Employer Law Report.

And we all agree that these laws are just not necessary--employers are not engaging in this practice. But legislators just cannot seem to help themselves. The question is, will this political brouhaha end in a nightmare for employers?

Delaware's EEOC Charges of Discrimination for FY 2011

Posted by Molly DiBiancaOn May 31, 2012In: Delaware Specific, Discrimination, Discrimination & Harassment

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The EEOC recently released new data, which identifies the number of charges filed by state. It's no surprise that the number of charges has increased steadily over the past three years, up from 163 charges filed in FY 2009, to 175 in FY 2010, to 228 last year.
But the percent of charges filed in Delaware as compared to the rest of the U.S. has remained consistent for the past 3 years--making 0.2% of the total charges filed in the U.S.

To put it in perspective, Delaware has one of the smallest populations in the country--we rank 45th out of 50. With less than 1 million residents, Delaware makes up less than 0.3% of the nation's population.

Although these numbers do sound positive, employers should remember that the EEOC isn't the only game in town. Because Delaware has a work-share agreement with the EEOC, the Delaware Department of Labor also receives charges of discrimination. In FY 2009, for example, the DDOL took 728 charges. The EEOC, on the other hand, received only 163 charges that year. In short, Delaware employers should look at these numbers with cautious optimism.

See also, What the Delaware Charge Statistics Mean for Employers
and DDOL Charge Statistics for FY 2009

The NLRB Is Laughing All the Way to the Bank

Posted by Molly DiBiancaOn May 30, 2012In: Social Media in the Workplace, Union and Labor Issues

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NLRB's Acting G.C. Lafe Solomon issued his third report on social media today. (PDF).

And what a fervor it caused! What a frenzy! Twitter was all atwitter with excitement over the promise of some meaningful guidance on the interplay between the National Labor Relations Act (NLRA), and employers' social-media policies. I think it's safe to say that the tone around the blogosphere will slowed significantly by morning.

Why? Well, primarily because we've actually read the report. And, folks, the news is not good. In short G.C. Solomon has made one thing clear--if you are an employer, there is just about no way you can draft a policy that addresses employees' off-duty use of social media that you can feel confident will not potentially run afoul of the NLRA. Or at least of Mr. Solomon's interpretation of the NLRA.

My natural optimism prevents me from reviewing in detail the multitude of provisions that Mr. Solomon found to violate the NLRA. My fellow e-law bloggers, no doubt, will pick up my slack here. I'll give you just one so you have a little taste. Here's the first provision addressed in the memo that, according to Mr. Solomon, violates the NLRA :

[If you mention your employer or your employment in an online post,] don't release confidential guest, team member orcompany information.

Yes. You heard me right. That provision was found to be overly broad in violation of the NLRA. Oh, brother. Boy, oh boy! The NLRB is just killing it, right?!? It publishes three "reports," none of which are binding, none of which constitute precedent of any sort, and none of which have been reconciled by the smartest minds around. It could be said, in other words, that the three reports are worth a whole lot of nothing.

Yet, these three little reports arguably have caused more uproar than the last three employment-law decisions issued by the U.S. Supreme Court. They have effectively prevented numerous employers from implementing a social-media policy. They have, if nothing else, gotten our attention.

I, for one, am ready to move on. Unless and until the General Counsel publishes a report that a lawyer of average intelligence can translate into something useful, I am no longer interested. And what's the consequence of this brazen disregard? Not much. As I've posted previously, the risk of having a policy that is later found to be in violation of the NLRA is that you would have to change your policy and put up a posting about the change.

In the meantime, I'll continue to draft policies that come from the right place (i.e., education and prevention as primary goals), are only as restrictive as they need to be (i.e., no vague or overly broad language), and tie in other applicable workplace policies (e.g., anti-harassment, workplace violence, and reference requests). I'm willing to bet that I'll be in a small group and, if that's the case, the NLRB will be laughing the whole way to the bank.

New NLRB Memo on Social-Media Policies

Posted by Molly DiBiancaOn May 30, 2012In: Social Media in the Workplace, Union and Labor Issues

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Acting General Counsel to the NLRB, Lafe Solomon, issued today his third report on social media (pdf). The report addresses 7 recent cases. In 6 of the 7, Solomon determined that the employer's social-media policy was, at least in part, in violation of the NLRA. But in one case, he determined that the social-media policy complied with the NLRA!

Rejoice all of you employers who have worried so about avoiding the scrutiny of the NLRB over social-media policies! You now have a sample to follow! The report included the policy in its entirety. Now there can be no further reason to delay drafting that social-media policy, if ever one existed in the first place.

USERRA's Statute of Limitations

Posted by Molly DiBiancaOn May 30, 2012In: Uniformed Services (USERRA)

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At our Annual Employment Law Seminar, U.S. Department of Labor Chief of Investigators Kenan Torrans gave an informative presentation on the requirements of the Uniformed Services Employment and Reinstatement Rights Act (USERRA). At the end of the presentation, I jumped in with my two cents and explained that I'd invited Kenan to speak because I think that USERRA compliance will be one of the biggest issues facing employers in the next several years.

One reason for my speculation is that USERRA differs from other employment-discrimination statutes in a number of ways. So employers who may not be familiar with USERRA's specific requirements and attempt to comply by applying rules that are generally applicable to Title VII or the ADA may find themselves to have run afoul of the law.

Another reason for my worries is the statute of limitations or, more specifically, the lack of one. An employee could, for example, return from military service and seek reemployment. Let's say the employer is unfamiliar with USERRA's requirements and denies the employee's request to return to work. The employee may find other work and the employer would think that all is well.

Well, not necessarily. If the employee's replacement job does not pay as well or has lesser benefits, the employee could later file a claim against the original employer. And, by "later," I mean much, much later. As in forever. Because there is no statute of limitations, there is no time limit on when an employee can file a claim.

Which is why a recent decision by the Sixth Circuit caught my attention. In Oswald v BAE Industries, Inc., No. 11-1119 (6th Cir. May 12, 2012), the plaintiff alleged that he'd been terminated due to his military service in Iraq. He filed suit three years after he was let go. The employer moved to dismiss on the grounds that the claim was precluded by the plaintiff's employment agreement, which required all employment-related claims be brought within six months. The court agreed and found that the employee's claims were time barred.

USERRA was amended in 2008 to preclude any statute-of-limitations defense and the employment agreement in this case was signed prior to the amendment. So this would not work in new contracts drafted today. However, it is important for employers who have such provisions in employment agreements already in place.

Calling All Employees! . . . As Long As They're Not Driving

Posted by Lauren Moak RussellOn May 29, 2012In: Policies

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text alert.jpgDelaware employers should be aware of the risks of employees' use of cell phones while driving. It's a recipe for litigation. Delaware employers should have a clear policy prohibiting employees from using cell phones whild driving on company business. The use of hand-held devices while driving is illegal in Delaware and employers should avoid liability for employees' violations of state law. As a starting point, employers should prohibit employees from violating any traffic laws while operating a vehicle on company time.

A recent article in the Washington Post takes these concerns one step further, and discusses several incidents in which employees did serious bodily harm to innocent third-parties while they were driving and talking on cell phones. Pizza delivery companies have also learned this lesson the hard way--you no longer see 30-minute delivery guarantees because franchisors were sued when their employees took up dangerous driving practices to meet the deadlines. One plaintiff won a $21.6 million jury verdict in a case arising from a cell-phone related car accident. Significantly, that accident occurred in 2004, before many states prohibited use of hand-held phones for talking or texting while driving.

If you weren't convinced already , these stories should encourage you to communicate clearly with your employees that, regardless of how important their assignment, they may not violate traffic laws to complete it!

Podcast: Social Media for Employers

Posted by Molly DiBiancaOn May 28, 2012In: Seminars, Social Media in the Workplace

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Last week, I appeared on the The Proactive Employer, talking about all things workplace social media with host Stephanie Thomas, and fellow employment-law blogger, Jon Hyman of the Ohio Employers' Law Blog.  The 60-minutes was over before we knew it but, lucky for you, if you missed the live version, you can listen to a recording of the show by either streaming it from the Proactive Employer site, or by downloading it from iTunes. 

Two Delaware Employers Selected as Freedom Award Finalists

Posted by Molly DiBiancaOn May 28, 2012In: Uniformed Services (USERRA)

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Memorial Day is more than a day off of work. The holiday is a time to remember those who have died in service to the country. One way we pay tribute to the men and women who died in military service is by observing a minute of silence at 3 pm today.

The Freedom Award is an example of the important ongoing effort to support military service members.The Freedom Award is the highest award given by the Department of Defense (DoD) to employers for exceptional support of Guard and Reserve employees. A review board comprised of military and civilian leaders selected 30 finalists from more than 3,000 nominations. Two of the 30 finalists were selected for their support of Delaware reservists--Siemens Corporation in Washington, D.C., who was nominated by an Army Reservist in Glasgow, Delaware; and Kent County Levy Court in Dover, Delaware.

For readers outside Delaware, Dover is the home to the Dover Air Force Base, making the recruitment and retention of military-service members a key objective for employers in Dover and throughout Kent County. Kent County Levy Court was nominated by an employee serving in the Air Force Reserve. The Court supported Guard and Reserve members by regularly featuring a Uniformed Services Employment and Reemployment Rights Act (USERRA) question-and-answer section in its monthly newsletter. The Court also provides a quarterly dinner for families of deployed employees, as well as babysitting services.

The Freedom Award was instituted in 1996 under the auspices of Employer Support of the Guard and Reserve (ESGR), a DoD agency, to recognize exceptional support from the employer community. Since it was first established, 160 employers have been honored with the award. The DoD will announce the 15 recipients of the 2012 Freedom Award early this summer following completion of a national selection board comprised of senior DoD officials, business leaders and prior awardees. Winners will be honored at a dinner in September in Washington.

Congratulations to both Delaware finalists and to all Delaware employers who continue to recognize the value of their military employees.

How Delaware's Password-Privacy Bill Would Impact Teachers

Posted by Molly DiBiancaOn May 25, 2012In: Public Sector, Social Media in the Workplace

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Delaware's Workplace Privacy Act, H.B. 308 will go to the Delaware House of Representatives one week from today. The Bill, if passed in its current form, would impact all employers, including teachers in the public and private sectors. You can read about some of the many other issues I have with the Bill in my previous posts but, in short, the legislation, as drafted has three main prohibitions.

What the Bill Would Prohibit

First, the Bill prohibits an employer from "requiring or requesting" that an employee or applicant turn over his "password or other related account information" to the employer. Although the intent of this provision is commendable, it, too, has a far broader reach than expected.

Second, the Bill prohibits an employer from "requiring or requesting" that an employee or applicant log into a social-networking site in the employer's presence.

Third, the Bill prohibits an employer from accessing an employee's or applicant's social-networking-site's profile account "indirectly through any other person who is a social networking contact" of the employee or applicant.

In plain English, the Bill prohibits an employer from: (1) asking an employee for his Facebook password; (2) asking an employee from logging into his Facebook account so the employer can see it; and (3) viewing an employee's Facebook page through another person's Facebook account.

How the Bill Would Affect Teachers

One of the many concerns I have with the Bill is that effectively prohibits an employer from investigating claims of employee wrongdoing and, simultaneously, prevents an employee accused of wrongdoing from defending herself. Here's an example:

School Principal gets a call from a "concerned parent," who wishes to remain anonymous. The nameless parent reports that he has reason to believe that a teacher is having an inappropriate relationship with a student. He goes on to say that he has reason to believe that the teacher and student are Facebook friends and have exchanged messages on Facebook that demonstrate wrongdoing.

Principal has received a complaint from a parent that Teacher has had inappropriate contact with Student via Facebook. The complaint appears credible. What will Principal do? What must Principal do? Investigate. Immediately.

Let's assume that Teacher is innocent and that, in fact, Teacher is not Facebook friends with any of her students. Principal calls Teacher into his office and confronts her with the allegation. After recovering from the initial shock of the accusation, Teacher denies any wrongdoing and volunteers to log into her Facebook account and show Principal that there are no students in her list of friends.

But Principal cannot oblige--to view Teacher's Facebook page or her Friends list would violate HB 308. So now what? What is Principal to do? Principal is prohibited by law from investigating the complaint other than by conducting in-person interviews of Teacher and Student. And, since the complaining parent did not disclose his name, Principal cannot request more information to substantiate the allegation.

It seems to me that Principal has one choice--suspend Teacher until the matter can be cleared up. I suppose Teacher could, and would, call upon the Union. But what help could the Union offer?

Side Note

The scenario described above is not, at all, unlikely. A recent study in the U.K. found that more than one-quarter of all complaints of teacher misconduct with respect to students, including those with and without merit, originate from communications exchanged via social-networking site.

Although the study did not offer an explanation for its finding, I think most of us would agree that the problem is secrecy--when a parent discovers that his child has been engaged in any "secret" conduct, particularly with an adult, the parent is justifiably concerned. The element of secrecy and surprise is what leads the parent to conclude that something is not quite right and to make a complaint to the school.

Illinois Passes Password-Privacy Law

Posted by Molly DiBiancaOn May 24, 2012In: Social Media in the Workplace

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The Illinois Senate approved a bill banning employers from requesting the Facebook passwords of employees and applicants on Tuesday, reports the Chicago Tribune. If Illinois' Governor signs the legislation, it will become the second state in the country to pass such a law. Maryland was the first--its law takes effect October 1.

The article quotes two lawyers with differing views of the Illinois law. The lawyer advocating for the law is Bradley Shear, who writes the blog, Shear on Social Media, and who played a role in the passage of the Maryland law. Although I am somewhat skeptical about Shear's apparent enthusiasm for this type of law, at least the Maryland version, the drafting of which he was involved in, is fairly reasonable and limited in scope.

The lawyer advocating against the Illinois law is Jeff Nowak, who writes the award-winning Blog, FMLA Insights. Nowak argues that legislation is another example of unnecessary regulation of employers. Nowak is quoted as saying:

The overwhelming number of employers understand that this practice simply does not make much business sense -- it leads to potential employment litigation, internal administrative burdens and an accusation of being tagged 'big brother.'

You may not be surprised to learn that I side with Nowak. The number of employers engaging in this practice is minimal at best. Even the sponsor of the Illinois bill admits that she knows of only a handful of employees who claim to have been subject to this practice--and even those individuals did not disclose the names of these employers who allegedly requested their passwords.

Delaware is on its way to become the third state to pass a "password-privacy" law. I am strongly opposed to the law in its proposed form. To read more about the reasons for my opposition, you can read my prior posts on the subject. I hope that, after you do, you will consider calling your Delaware State Representative to share your concerns in advance of next Friday, when H.B. 308 moves to the House floor.

I'm Too Sexy For My Job . . . Part Three

Posted by Molly DiBiancaOn May 23, 2012In: Discrimination, Gender (Title VII)

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Is it unlawful to fire an employee for being too sexy?  Well, it depends.  That's the claim that a New Jersey woman filed with the EEOC, though, so she and her lawyer must think so.  Lauren Odes, 29, worked in her data-entry job for just one week before she was let go.  She claims that there was no dress code in place and that other employees wore very casual "athletic wear," which makes sense given the fact that they were working in a warehouse instead of a traditional office environment.  Odes claims, though, that, in the first few days on the job, her supervisors cautioned her that her outfits were too provocative, "her lips and hair, 'too fresh,'" and her breasts too big. On one occasion, according to the Huffington Post, she was given a bathrobe to wear over her clothes.  Too Hot for Work

Finally, she alleges that she was told that she was just "too hot" for the workplace.  Gloria Allred has taken up the case.  Odes' Charge alleges gender- and religious-discrimination claims.

And where, you might ask, does religion play into this?  The employer is owned by an Orthodox Jewish family and, Odes claims, they were trying to impose their religious beliefs on her with respect to appropriate attire.  As if there weren't enough irony in this story already, the employer is a lingerie company.  It seems to me that the fact that the company sold, in Odes' words, "thongs with hearts placed in the female genital area" would be evidence against Ms. Odes' claim that she was targeted for her religious beliefs. 

For my long-time readers, this story may seem a bit familiar.  If so, it's likely because this is not the first time I've had the occasion to write about employees who claim to have been fired for being too darn hot.  I've written about similar stories on two other occasions--once back in 2008 and then, again, in 2010, when a female employee sued Citigroup, alleging that she was terminated for being "too sexy for her job."

And people wonder why I love my job!

Florida Judges May Not Connect With Lawyers Online

Posted by Molly DiBiancaOn May 22, 2012In: Purely Legal, Social Media in the Workplace

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As I wrote a few years ago, judges in Florida may not be Facebook friends with any lawyer who may appear before the judge.  (Opinion 2009-20, Nov. 17, 2009).  Last month, the Florida Judicial Ethics Advisory Committee made clear that this prohibition extends beyond Facebook.  In Opinion Number 2012-12, issued on May 9, 2012, the Committee opined that a judge may not be “connected” to lawyers who may appear before him on any social-networking site—including LinkedIn.  The inquiring judge had posited that Facebook and LinkedIn have distinctly different purposes—one for personal use and one for professional use.  Therefore, the inquiring judge asked, shouldn’t there be different standards for judges’ use of the two sites?  linkedin logo by webtreats

The Committee did not agree.  Instead, it held that the relevant inquiry is not about the website or social-networking site or its purpose. Instead, the Committee determined that the process of selecting friends or connections “and the fact that the names of those friends or connections are then communicated – often, but not always, selectively to others – that violates Canon 2B, because by doing so the judge conveys or permits others to convey the impression that they are in a special position to influence the judge.”

Other States

Massachusetts judges also may not be “friends” online with any attorney who may appear before the judge.  (Op. No. 2011-6).  So can judges in California, although that State’s opinion seems more qualified.  (Formal Op. No. 66) (2011).  Ethics opinions from Kentucky and Ohio reached a similarly qualified “yes.”  (Op. JE-119) (Jan. 2010); (Op. 2010-7) (Dec. 2010).

Other states’ judicial-ethics committees have come out differently than the Florida committee.  For example, Judges in South Carolina are not prohibited from being Facebook friends with law enforcement officers and employees who work for the judge, provided there is no discussion of anything related to the judge’s official duties.  (Op. No. 17-2009) (Oct. 2009).  Judges in New York also are permitted to participate in social-networking, provided the judge otherwise complies with the rules of ethics.  (Op. 08-176) (Jan. 2009).

But, in a Pennsylvania decision rendered earlier this year, a court determined that a judge had abused his discretion by not recusing himself from a case in which he was Facebook friends with the defendant, a local politician.

And then there’s the example of the New York criminal judge who was transferred after some of the lawyers who appeared before him complained that the judge had sent them Facebook friend requests.

Social-Media Policies for Educators—the N.Y. Case Study

Posted by Molly DiBiancaOn May 21, 2012In: Social Media in the Workplace

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Schools continue to struggle with social media. In particular, teachers’ online interactions with students via Facebook and other social-networking sites continues to be problematic. Some school districts have been successful in adopting social-media policies.  New York City, for example, recently implemented social-media guidelines for teachers and staff.  But school districts without social-media policies for staff are facing challenging times.

The Democrat and Chronicle.com, for example, reported one such story involving a teacher named Shari Sloane. According to the article, Sloane has no qualms about communicating with students and former students via her personal Facebook page. Some of her colleagues think the practice is unprofessional—others call it unethical. I would call it dangerous. 

Another Rochester-area school district, Churchville-Chili Central, adopted a social-media policy in March.  The policy prohibits communications between students and teachers other than those that are for “educational purposes only.” Although I commend any school district that recognizes the importance of addressing social media, I do have reservations about the policy.

It seems to me that teachers should not be discouraged from communicating with students. It’s more important that there be a mechanism in place to prevent inappropriate communications from taking place.  Thus, there are competing interests--preventing inappropriate communications while, at the same time, without restricting communications that benefit students, even if they’re not purely education-related.

One way to manage these interests is with a policy that prohibits “secret” communications. In other words, a teacher should be able to discuss non-educational subjects with students, provided that those discussions are known or knowable to school administrations and parents. As with most things in the word of social media, transparency is key.

That’s why the New York City policy is a better approach. That policy, according to the N.Y. Times, prohibits teachers from communicating with students via personal Facebook and  Twitter accounts but does not impose a general ban on teacher social-media use. Instead, the policy expressly provides that teachers may use social media and recognizes the educational potential of social media. The policy simply says that any communications must be done through district-provided technology. An excellent balance, it seems to me.

See also:

N.Y. Teacher’s Firing Overturned Despite Facebook Wish that Students Drown

No 1st Am. Protection for Teacher’s Facebook Posts

Court Denies Reinstatement to Teacher Fired for Facebook Posts

Blogging Teacher Returns to Work After Suspension for Posting About Students

Social-Media Woes for School Districts

More Social-Media Woes for School Districts

Prof. Alleges Conspiracy to Oust Him for Anti-Muslim Facebook Posts

Posted by Molly DiBiancaOn May 21, 2012In: Social Media in the Workplace

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A tenured professor at Purdue University has sued the university, alleging that it wrongfully disciplined him after he posted anti-Muslim comments on his Facebook page. According to The Fire.org, Prof. Maurice Eisenstein, an Orthodox Jew, posted a picture on his Facebook page of “Christians killed by a radical Muslim group,” along with written comments questioning the response of moderate Muslims and insulting the Prophet Muhammad.  FB Logo

The Facebook post led to student protests on campus and, later, to anti-harassment complaints by at least two other professors.  The professors later filed a second round of complaints alleging that Eisenstein had retaliated against them for their anti-harassment complaints.  The university is alleged to have conducted an investigation of the complaints, “forcing” Eisenstein “to go through a full-blown hearing to defend himself.”  As a result of the investigation and hearing, Eisenstein was cleared of violating the harassment policy but was found to have violated the retaliation policy.  As a result, Eisenstein received written reprimands.

The complaint alleges several counts, including: (1) an “administrative action” claim, which appears to be a due-process claim based on the university’s allegedly “arbitrary and capricious” disciplinary practice; (2) a state constitutional claim, based on the allegation that the complainant-professors “conspired and colluded” with the university’s Chancellor “to deprive Eisenstein of his civil rights” by filing their “unfounded complaints;” and (3) a state-law privacy claim, based on the allegation that the defendants read from a “confidential letter” written by the Chancellor at a faculty meeting. 

Based on the complaint alone, these claims seem attenuated at best. Unless there are additional facts not alleged in the complaint that could establish that the professors actually got together and colluded to harm Eisenstein’s reputation by filing complaints of harassment with the university, I would be not be surprised if all three counts were subject to dismissal on the pleadings.  Nevertheless, the lawsuit is yet another example of the troubles Facebook use by employees continues to cause employers of every size and in every sector.