Teachers' use of social media is an ongoing problem across the country. Teachers are given little, if any, guidance about what is and is not appropriate online conduct. School districts, in turn, are left to decide the rules on an ad hoc basis. And uncertainty breeds disaster.
Cases of teacher termination based on social-media commentary are some of the most common in the employment-law world. Most of these cases have been decided in favor of the school district, finding that the district was within its rights when it fired the teacher for her inappropriate online posts.
One case, though, came out in favor of the teacher. In March, I reported about a ruling from the New York Supreme Court, which overturned the decision of a disciplinary hearing officer. Before being overturned, the hearing officer had upheld the decision to terminate a teacher who had posted on her Facebook page that she wished that her students "would drown," along with other, equally distasteful comments.
Not surprisingly, the district appealed the decision of the Supreme Court to the New York Appellate Division. The appellate court, earlier this month, upheld the decision to set aside the termination. The order by the appellate court is quite short--just two pages in length--but filled with findings that should be of great concern for employers.
The court began its opinion by acknowledging that the teacher's "comments were clearly inappropriate." But, the court went on, it was "apparent" that the teacher's purpose in posting the offensive comments was "to vent her frustration only to her online friends after a difficult day with her own students."
The court went on to find that the teacher had, for this purpose, a limited expectation of privacy in her Facebook posts because her page was not public but could be viewed only by her Facebook friends. "None of her students or their parents were part of her network of friends and, thus, the comments were not published to them, nor to the public at large," explained the court.
Moreover, the court gave the teacher bonus points because she deleted the comments three days after posting them. The court acknowledges that the teacher then proceeded to lie about having made the comments at the disciplinary hearing several months later. The court excused this attempted cover-up, though, because it was done "out of fear of losing her livelihood."
The court also gave the teacher points because she "acknowledged that [her comments] were inappropriate and offensive, and repeatedly expressed remorse." Thus, the court concluded that, based on the teacher's 15-year employment history, during which she had had no prior disciplines, and her promise not to repeat the conduct, the Supreme Court had properly determined that the penalty of termination was shocking to one's sense of fairness."
Let's sum up what we've learned. If we follow the appellate court's reasoning, we're left with at least three troubling holdings. First, that a person has a reasonable expectation of privacy when posting comments online, provided that the person's page is not publicly available.
This is directly contrary to the majority of rulings in similar cases. Even in the discovery context, the majority of courts have found the opposite--that there can be no reasonable expectation of privacy when an individual posts something to the Internet. And that makes sense, doesn't it? I mean, in this case, someone did report the teacher's comments and the comments did become public. So how reasonable could it have been for her to expect otherwise?
Second, since when is "just venting" a legitimate defense? Does the fact that she had a bad day somehow mitigate the harm that her comments may have caused? For example, did the students and parents who learned about the comments and who lost faith in the educational system as a result think less badly of the school because the teacher was "just venting"? Doubtful.
And, third, employees who lie when they've been caught engaging in terminable conduct can get out of jail free simply by saying they lied only because they didn't want to get fired and by promising not to repeat the conduct.
Really? Don't most employees try this when they get busted for doing something sure to get them fired? If a teacher with an otherwise unblemished employment history snorts cocaine in the bathroom during recess and then lies about it, can she avoid termination simply by promising not to do it again?
Or what about a teacher who is asked whether she witnessed conduct constituting sexual harassment by a co-worker. If she lies and says she didn't witness any inappropriate behavior, wouldn't the school be justified in disciplining or terminating her? After all, she's exposed the school to significant liability--not to mention her coworkers to potential future harassment. If her lies are later discovered, can she save her job by saying that she lied only because she didn't want to get fired and by promising not to do it again?
This case has some significant implications if its rulings are applied to other cases involving social media. I'll keep my fingers crossed that it is not.
Rubino v. City of New York, 2013 NY Slip Op 03272 (N.Y. App. Div. May 7, 2013).