Delaware Employment Law Blog

Employee foibles on social networking websites are back in the news.  According to the Raleigh News & Observer, a teacher in the Charlotte-Mecklenburg Schools may be fired because of derogatory comments about students that the teacher posted on her Facebook page. 

The comments included referring to "teachin' chitlins in the ghetto of Charlotte."  The teacher went on to note in the "About Me" section of her Facebook profile that she is "teaching in the most ghetto school in Charlotte."  She also listed drinking as one of her hobbies.  Apparently, other Charlotte-Mecklenburg teachers also have objectionable Facebook pages as the news story reports that several other teachers from the same district have been also reprimanded for Facebook comments that show, in the district's view "poor judgment and bad taste."   

MySpace and Employment Law have crossed paths again. This time, they intersect, again, in education law. But this isn’t the first time.

You may remember Stacy Snyder, the "Drunken Pirate,” who, at the time, was a student in the Education program at Millersville State University.   In a moment of poor judgment, Snyder posted a photo of herself in a pirate hat, drinking, captioned "drunken pirate" on her personal MySpace page.  School officials  learned of the photo and refused to give Snyder a teaching credential because they believed the picture promoted underage drinking. 

Alas, another teacher has fallen prey to MySpace.  A federal District Court in Connecticut has upheld the decision of a school board in that State, which voted to not renew a teacher's contract because of content posted on his MySpace profile. The court found that the non-renewal decision did not violate the teacher’s constitutional rights to Free Speech or Free Association. 

A high school teacher, Jeffery Spanierman, apparently created a MySpace profile, which he used to communicate with students.  The discussions concerned a mix of topics, some of which were unrelated to the school.  Of course, Spanierman's venture into the world of social networking soon came to the attention of the school administration.   An administrator viewed the profile and believed it contained inappropriate comments and "peer-like" discussion with students.  Spanierman deleted the profile after these concerns were brought to his attention. 

But the lure of the social networking site proved to strong for Mr. Spanierman to long resist.  Shortly after deleting the original profile, Spanierman created a second one.  After learning of the second profile, Spanierman was placed on an administrative leave.  Ultimately, the school district decided not to renew Spanierman's teaching contract.   Spanierman filed suit against the school district and various individual officials alleging several violations of his constitutional rights.  In particular, Spanierman claimed that his rights of Free Association and Free Speech had been breached.

The District Court rejected Spanierman's arguments. Although the court determined that Spanierman was not acting pursuant to his official duties as a teacher in maintaining the MySpace page, it found that the page's content did not deal with matters of public concern.  The sole exception to this was a short poem on the Iraq war.  But there was no evidence that any administrator retaliated against Spanierman for expressing his views on that conflict in verse.  The Court went on to note that the school district would likely have been able to demonstrate that Spanierman's "speech" would have been sufficiently disruptive so as to outweigh any the First Amendment value it possessed.

The Court also rejected the teacher's free association claim.  MySpace may be a social networking website, but here, there was “no evidence in the present case that MySpace, as an organization, purports to speak out on matters of public concern.”

Off-duty conduct as grounds for termination is a common topic in employment law. It is not uncommon for employers to include "morals clauses" in employment contracts. And social-networking sites are not the only forums in which employees are getting "busted." You may remember the recent scandal involving not the internet, but a local newspaper, which ran unfavorable photographs of the then-president of the community college engaging in off-duty conduct that reflected negatively on his leadership and judgment. Robert Paxton, resigned after the paper published a photograph of him pouring beer into a young woman’s mouth.

Companies will not risk their reputations on drunken pirate escapades or inappropriate MySpace relationships. Few states offer protection under the law for employees' off-duty conduct. Delaware is not one of those states--employers have full authority to determine what actions constitute "bad behavior," and can result in termination. 

By Michael P. Stafford, Esq.

The free-speech rights of a student is the topic of the day in Colorado, where a 5th grader has been suspended for wearing a tee-shirt emblazoned with the slogan "Obama is a terrorist’s best friend."  The student's family claims that his First Amendment right to free speech is being trampled. Conspicuously absent from news coverage of this developing story is any detailed description of the tee-shirt causing "substantial disruption" to the school.

Did the school administration make the correct decision in suspending this youngster?

Under well-established Supreme Court precedent, public school administrators may regulate student speech protected by the First Amendment only in three circumstances: (1) when the speech is substantially disruptive; (2) when the speech bears the imprimatur of the school (such as in a school newspaper or yearbook), or; (3) when the speech is lewd or plainly offensive.  In particular, under Tinker v. Des Moines,  393 U.S. 503 (1969), student speech may be regulated only if the school has a well-founded expectation that the speech will cause substantial disruption of the school's operations or interference with the rights of others. The expectation of disruption must be a specific and significant fear of disruption, not just some remote apprehension of disturbance.  In this regard, speech is not disruptive merely because it causes offense or hurt feelings in listeners.

Moreover, any regulation of student speech must also be “content neutral.”  In Tinker, which involved students wearing black armbands to school to protest the Vietnam war, the Supreme Court observed that the school had singled out the anti-war black armbands for prohibition but had not forbidden other controversial or political symbols.  As many courts have noted in a variety of contexts, restrictions on speech because of its message or content are presumed to be unconstitutional. 

Here, the constitutionality of the school's action in suspending the student will likely turn on whether the tee-shirt caused, or was likely to cause, a substantial disruption to the educational environment.  Any attorney representing the student will also look closely at the other types of political apparel students have worn in the past without discipline by the school administration to discern whether the student has been discriminated against based on his viewpoint. 

The United States District Court for the District of Delaware has found in favor of a local public school district in a special-education case brought under the Individuals with Disabilities Education Act (IDEA).  The conduct of the parents, said the Court, was a large part of the problem.

The parent involved in the case filed a due-process claim against the District in late 2006, alleging a number of procedural errors.  As a remedy, the parent sought a private placement at The Gow School at public expense. Therefore, the Delaware Department of Education was joined as an additional party to the proceeding.  In a decision issued on January 6, 2007, the administrative due process Hearing Panel found in favor of the District and the Department, and the parent appealed. 

On appeal, both the parent and the District filed motions for summary judgment.   The two key issues raised in the case centered on whether the District denied the student a free appropriate public education (FAPE) by (a) failing to have an IEP in place for the student on the first day of school and (b) failing to properly notice an IEP meeting.  The Court rejected both claims.  

First, the Court noted that "minor procedural violations do not constitute an IDEA violation."  And, "[w]hile the court does not recommend having a disabled child attend school without an IEP, it finds the week delay to be a minor procedural error.  Consequently, the absence of an IEP on the first day of school does not equate to a denial of a FAPE." 

Second, the Court held that the IEP meeting "was merely a continuation" of a prior IEP meeting and as such "no new notice was necessary." Therefore, because there was no denial of FAPE, the Court concluded that the District was not responsible for the costs of the parents' private school placement.

This decision highlights the fact that minor procedural errors do not automatically lead to liability for public school district's under the IDEA.  The case also illustrates the risks run by parents when they cease to participate in the collaborative IEP development process.  Here, the Court specifically noted that it was "convinced that an IEP could have been instituted for [student] after the September 11, 2006 meeting and that none was developed because of the conduct of [student's] mother."  

[Editor's Note:  As usual, the author's humility has led him to omit his role in the case as counsel for the District.  Congratulations to Michael Stafford for securing this important victory for the school district! md]

Morality clauses are in the news again.  A Connecticut second-grade teacher was fired after she appeared, with her husband, on Howard Stern's radio show.  The couple participated in a contest called, "Hottest Wife, Ugliest Husband."  She sued her former employer alleging, among other things, sex discrimination and due process violations (under Section 1983).  She has also sued the union for violation of the duty of fair representation with regard to its alleged failure to advocate on her behalf during the grievance process.

The teacher, Marie Jarry, took a sick day from work to participate in the contest (which, by the way, they won first prize and $5,000).  She admits maybe that wasn't the best idea.  When she returned to work, she was told she'd violated the school's "morality clause" and was terminated.  

More details can be found at The Smoking Gun, as well as a link to the full complaint.

For more on morality clauses, see these recent Delaware Employment Law posts:

Prying Eyes: What is "Private" Becomes Even Fuzzier for Employees Who Snoop

More Drama at the News Desk: Co-Anchor Suspected of Snooping Through E-Mails

Off-Duty Conduct & Newsmakers:  The Role of Morals Clauses in Employment Contracts

Bad Boys, Bad Boys, Whatcha' Gonna Do When They Work for You?

Off-Duty Conduct, Generally:

Off-Duty Conduct In the News

There's No Hiding Your Own Bad Habits

[Editor's Note: Dan Schwartz of the CT Employment Law Blog always keeps his readers up to date on the hottest employment law topics and stories.  He has a great way of demonstrating how just about everything is related to employment law in some way. Well, being the legal eagle that he is, Dan apparently spotted this story at just the same time as Michael Stafford.  So, although I can't send him a hat tip for the story, I do want to send an equally enthusiastic "great post!" to Dan for his great catch.  I mean, really, sharing is a very important value.  If more managers would give credit where credit is due or share credit where possible, they'd have a much happier group of employees and, in turn, a much easier job.  All of that being said, go check out the CT Employment Law Blog for more on this story and Dan's other great posts! md]

Employees in corporate America know exactly what I'm talking about.  The increasingly Orwellian nature of corporate lingo.  Workplaces across the country have been infiltrated by this pervasive dialect.

If you've grown tired of the self-imposed language of workers across the country, then the BBC is here to help.  The BBC has compiled a "50 office-speak phrases you love to hate" list that includes such linguistic gems as "conversate" and "granularity." 

Sadly, my own personal favorite does not appear on the list. I learned from a friend who worked as a store manager for a national retailer that his company does not have "problems" or "challenges" anymore.  Instead, everything is an "opportunity."  After learning this, naturally, when I got pulled over for speeding on my way to work, I informed my wife that "I had an opportunity on my way to work this morning."  I don't think she saw it that way.

[Editor's Note:  Our friend and blogger extraordinaire, John Phillips, at The Word on Employment Law, posts the definitions from the Dictionary of Corporate Bull**!@.  I happen to have the Dictionary as a daily desk calendar and I can personally attest that the definitions give us a daily laugh.  As a sampler, and not to spoil any of John's fun, but today's definition is "nastygram:  an e-mail that is punitive in tone; a petty and irritating bitch-slap, sent with the ulterior motive of defending the author's ridiculously small territory and authority and venting otherwise unexpressed frustration and anger; frequently sent by middle managers who must daily fight off the reality of their own insignificance; a common tool of the micromanager."  md.]

The Third Circuit has ruled that attorney-parents cannot recover fees for legal services performed on behalf of their children in administrative hearings or judicial proceedings under the Individuals with Disabilities Education Act ("IDEA") .  Although the IDEA contains a fee-shifting provision for parents who are "prevailing parties," it does not apply to fees for parents representing their children in legal proceedings.  Previously, in Woodside v. School Dist. of Philadelphia Bd. of Educ., 248 F.3d 129 (3d Cir. 2001), the Third Circuit had held that parents serving as an attorney cannot recover fees for administrative proceedings under the IDEA.  The Pardini decision clarifies that the bar to fee recovery is equally applicable in judicial proceedings.

On appeal from a due process hearing decision, the federal District Court in Wilmington, Delaware ruled in favor of the Appoquinimink School District.

The court was asked to review the decision of a due-process hearing panel involving a parentally placed private-school student. The Panel had previously found that the District was obligated to pay for the student's American Sign Language (ASL) interpreter at a local private school, despite his status as a parentally placed private-school student.

The parents of the student initially alleged in their due process complaint that the student had been denied a free appropriate public education (FAPE), while enrolled at the Sterck School (Delaware School for the Deaf). They also claimed that there was no appropriate public placement available because their son required a small class size in order to access his education through an interpreter.

As a remedy, they sought a private placement at public expense, the provision of an ASL interpreter as a related service, and compensatory education.

The Panel rejected the parent's claims of Fair Appropriate Public Education (FAPE) and least-restrictive-enviornment (LRE). The court held that the student could receive a FAPE in one of several available public placements. However, the Panel determined that the School District's refusal to fund the interpreter as a related service was "an abuse of discretion," because the IDEA and Delaware state law did not expressly prohibit the District from funding the interpreter.

According to the Panel, "[i]n the rational exercise of discretion, [the District] should provide a sign-language interpreter as a related service, and liability continues over the parents' unilateral placement." (The full Panel decision can be found on the Delaware Department of Education's website, linked here: Appoquinimink Sch. Dist., DE DP 06-11).

The District Court gets it right

The School District and the Delaware Department of Education appealed the decision to the federal court, located in Wilmington, Delaware. The Honorable Joseph J. Farnan, Jr. decided the case on appeal. They argued that they were under no obligation to fund the student's interpreter because of the separate, more limited, set of entitlements given to parentally placed private-school students by the Individuals with Disabilities Education Act (IDEA).

Specifically, the IDEA obligates districts to spend a proportional share of their federal Part B funds on the provision of related services to parentally-placed students who attend private schools located with their boundaries. The nature of the related services provided is determined through meaningful consultations with representatives of the private schools, the point of which is to identify the greatest area of need.

The court agreed, concluding that the Panel committed an error of law by ordering the School District to fund the interpreter. "Where, as here, the District has provided the child with a FAPE and the parents elect to place the child in private school, no liability continues on the part of the District for the payment of that child's cost of education, including special education and related services," because parentally placed private-school students have no "individual right to receive to receive some or all of the special education and related services that the child would receive if enrolled in a public school." Judge Farnan's full decision can be found on the District Court's website.

The Court also noted that the costs of the student's interpreter were more than ten times greater then the entire amount of the District's proportional share of Part B funds.

Finally, the Court held that that the Panel exceeded its authority in holding the District responsible for the interpreter once it had determined that the student was parentally placed in the private school, because the IDEA expressly states that complaints concerning the provision of services to parentally placed private-school students are not subject to due process procedures.

This was a notable victory for Appoquinimink School District and will be important precedent for future Delaware cases involving special education and school law.

[Editor's Note: Mike Stafford, the author of this post, is too modest to to note that he and Scott Holt, a partner in the YCS&T Employment Law Department, represented the School District in this case and were instrumental in seeing the case to victory. Well done, Mike and Scott!!]

The United States Citizenship and Immigration Services (USCIS) announced yesterday that all H-1B temporary worker petitions filed between April 1, 2008 and April 7, 2008 "will be subject to a random selection process." Of course, petitions that are not selected and approved through this process will be returned, along with the accompanying filing fees.

USCIS only began accepting H-1B petitions on April 1, 2008 for new employment in fiscal year 2009, which begins on October 1, 2008. The announcement of the random selection process means that employers who were not able to submit their H-1B petition by April 1st still have a chance to secure employment authorization, provided the petitions are submitted by April 7.

It's important to remember that not all H-1B petitions are subject the visa cap. For example, petitions renewing H-1B status, or "porting" a worker currently on an H-1B from one employer to another are, in most instances, not subject to the cap. However, the H-1B visa cap does have a tremendous impact on your ability as an employer to hire foreign students or persons presently in foreign countries for employment in the united States. As such, it should be considered in any recruitment conducted by your organization.

On April 1, 2008, the United States Citizenship and Immigration Service (USCIS) will begin accepting petitions from employers for H-1B visas for fiscal year 2009. Unfortunately for employers, the H-1B visa category has a yearly maximum of merely 65,000 visas. This limit is also known as the H-1B cap.

Last spring, the H-1B cap was reached on the very first day of filings. USCIS will not accept any additional petitions after the cap is reached. Therefore, employers seeking visas should move quickly to complete and submit form I-129 and the necessary supporting paperwork. (Click here for the forms page on the USICS website)

New Rule on the Use of Multiple Petitions
As part of the gear-up for April 1, USCIS published an interim rule in the Federal Register dealing with the number of petitions that can be filed per employee. The rule was issued on March 19, 2008 and prohibits employers from filing multiple H-1B petitions for the same employee.

Do You Feel Lucky
You might need some luck. The interim rule sets out the process for how petitions that are received after the cap has been hit. USCIS will use a lottery system. A random selection process will determine that it has received enough petitions to reach the cap within the first five business days.