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Calling Your Students "Hoes" Can (And Should) Get You Fired

Posted by Molly DiBiancaOn June 5, 2014In: Off-Duty Conduct, Public Sector, Social Media in the Workplace

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During the 2007-2008 school year, Ms. Kimble was employed as a cook and cheerleading coach at a high school.  In December 2007, she took the cheerleaders on an overnight Christmas party held in a cabin located outside the county.  The trip was not approved as was required by district policy.  When administration learned about the trip, Ms. Kimble was instructed that all future out-of-county trips must have prior approval.

The following year, Ms. Kimble worked as a cook at an elementary school and as the cheerleading coach at the same high school at which she had coached the prior year.  In December 2008, Ms. Kimble took the cheerleaders to the same cabin for another overnight Christmas party.  Ms. Kimble and a parent went as "chaperones" but Ms. Kimble did not seek or obtain approval for the trip.

During the party, Ms. Kimble was photographed in the hot tub, surrounded by several female cheerleaders.  Although Ms. Kimble was clothed, most of the girls were topless.  All of the girls were minors. 

Ms. Kimble posted several photos of the party on her MySpace page, although the girls were fully clothed in all of the pictures that she posted.  To one of the photos, in which the girls were wearing Santa Claus hats, Ms. Kimble added the caption:

my girls acting like their self[sic] . . . hoes.

The photos were discovered and reported to the school and Ms. Kimble was suspended without pay.  After a hearing, she was terminated from both her position as cook and as coach based on the determination that she had committed insubordination, immoral conduct, and sexual harassment. 

Ms. Kimble challenged the termination.  An administrative law judge overturned the board's decision to terminate her from her position as cook.  The board appealed and the circuit court affirmed the finding of the ALJ.  The board appealed to the state's highest court, which reversed, siding with the board and finding the termination lawful. 

As the grounds for its opinion, the state's Supreme Court held that Ms. Kimble had been insubordinate by ignoring the directive and policy to first obtain permission from the school prior to taking students on any out-of-county trip.  That was the easy part.

The more difficult part (at least for the ALJ and the lower court), was the finding that Ms. Kimble had, indeed, engaged in immoral conduct by:

sitting in a hot tub surrounded, literally, by several topless female students.

The court also found that calling your minor students "hoes" also is relevant to the immorality question. 

Finally, the court rejected Ms. Kimble's argument that she could not be disciplined for conduct that occurred off duty.  This argument is a favorite among plaintiff-employees everywhere but always a loser.  The conduct was within the scope of Ms. Kimble's employment--she, as cheerleading coach, took cheerleaders on an authorized trip outside the county, was photographed with several of them topless, and then called them "hoes" on her MySpace page. 

The fact that she was not on duty at the time of these acts does not serve as a defense.  This case serves as yet another example of how off-duty conduct can (and should) serve as a basis for discipline and/or termination.  When an employee engages in conduct off-duty that undermines or interferes with his or her ability to effectively carry out his or her job duties, discipline is appropriate . . . and lawful.  The same rule applies when the conduct is carried out in cyberspace, particularly on social-media sites.

On the most basic level, it's difficult to imagine that the parents of the female students would appreciate their daughters being called "hoes" by anyone but especially not by their cheerleading coach. 

Kanawha County Bd. of Ed. v. Kimble, No. 13-0810, 2014 W. Va. LEXIS 584 (W. Va. May 30, 2014).

Employers, If You Fire for a Facebook Post, Please, Get a Copy of It First!

Posted by Molly DiBiancaOn May 20, 2014In: Public Sector, Social Media in the Workplace

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The plaintiff is a Michigan lawyer.  She was placed on the assignment list of the County Probate Court and, as a result, received several case assignments.  She made a comment on Facebook about what she believed to be inefficiency at the Clerk’s Office at the Court in a particular case she was handling. She tagged two people in the post, mistakenly identifying them as employees at the Clerk’s Office.  how_to_permanently_delete_or_deactivate_facebook_account

One of the two employees brought the post to the attention of the Court administrator.  The administrator never saw the actual post.  Two days later, the Court administrator notified the plaintiff by letter that she had been removed from the assignment list because of her comment on Facebook. 

The plaintiff attempted to get back on the list multiple times but was unsuccessful and filed suit.  The suit alleges several constitutional claims, all but one of which were dismissed by the court.  The claim that survived is a claim for unlawful retaliation in violation of the First Amendment—i.e., a free-speech claim.

The court declined to dismiss the free-speech claim for several reasons.  First, it held that the plaintiff was speaking as a private citizen—not as an employee—when she made the post.  I tend not to agree but, well, we can’t all be right all of the time. 

Second, the court held that she was speaking on a matter of public concern.  This finding was based, in large part, on the fact that no one could produce a copy of the actual post and, therefore, the court was left to decide the nature of the speech without ever having seen the speech.  Yikes. 

Why, you ask, did no one produce the post?  According to the opinion, because the plaintiff deleted it.  Hmmm.  That doesn’t seem like exactly the right outcome, does it?  Because the plaintiff destroyed evidence, she gets the benefit of the doubt?

Maybe not.  But it does teach an important lesson to employers.  If you are going to discipline or terminate an employee due to something the employee posted on Facebook—get and keep a copy of the actual post if at all possible. Taking someone’s word for what the post says doesn’t mean that the termination is unlawful but it does likely mean that you’re going to have to work a lot harder to prove your case.

Butler v. Edwards-Brown, No. 13-13738, 2014 U.s. Dist. LEXIS 62032 (E.D. Mich. May 5, 2014).

Demoted for Posting Picture of Confederate Flag on Facebook Page

Posted by Molly DiBiancaOn February 6, 2014In: Public Sector, Social Media in the Workplace

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Public-sector employees have First Amendment rights.  But those rights are not without limits.  Employers, too, have rights—in particular, the right to operate an effective and efficient workplace.  Law-enforcement agencies get even more protection because the law recognizes the potential for harm to the department’s reputation and the public’s trust.

And how do all of these rights play out in the context of social media?  Usually in the employer’s favor.  As yet another court opinion shows, police officers have very little latitude when it comes to posting controversial views on their personal Facebook pages. 

The plaintiff in this case, Deputy Chief Rex Duke, worked for the Clayton State University Police Department for eight years with no performance problems.  Shortly after the presidential election in November 2012, the plaintiff posted a picture of a confederate flag to his Facebook page with the comment, “It’s time for the second revolution.”

confederate flag

His Facebook profile and posts were accessible only to his Facebook friends. His profile did not indicate that he was employed by the Police Department or even that he was a police officer. And he took the post down within an hour after posting it.

But that hour was long enough for one of his “friends” to send a screenshot of the post to the local TV station. A story ran that evening on the local news about the post and the plaintiff’s position as Deputy Chief.

The Police Department received anonymous complaints about Plaintiff, prompting an investigation. Following he investigation, the plaintiff was demoted in rank and duties and his pay was cut. The plaintiff sued the Police Department, alleging First Amendment retaliation.

The court upheld the demotion, finding no unlawful imposition by the employer on the plaintiff’s right to free speech.  The basis for the court’s opinion was the potential disruption and/or actual disruption caused by the plaintiff’s posts.  In most circuits, including the 11th Circuit, potential disruption can be sufficient justification for an employer’s interference with an employee’s right to free speech.  Here, the court explained, there was not only potential for disruption caused by the plaintiff’s post but there was actual disruption, as well, as evidenced by the complaints the Department received. 

Are these consequences harsh?  Most definitely.  Remember, the post was not publicly accessible and was up only for an hour.  But that doesn’t mean that the consequences were unlawful. 

Duke v. Hamil, No. 1:13-cv-01663-RWS, 2014 U.S. Dist. LEXIS 13388 (N.D Ga. Feb. 4, 2014).

Facebook Posts by Police Officer Not Protected by the 1st Amendment

Posted by Molly DiBiancaOn December 10, 2013In: Public Sector, Social Media in the Workplace

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Public-sector employers can add yet another “W” in the “Win” column on the Facebook-firing scorecard.  The victory comes by way of a federal court in Mississippi where, earlier today, a judge granted summary judgment to the City of Greenville in a First Amendment claim brought by a former police officer, Susan Graziosi.

Graziosi was employed by the Greenville Police Department for 26 years at the time she posted a series of comments on her Facebook page and the Facebook page of the then-mayor, complaining that the Chief of Police had not sent police-officer representatives to the funeral of an officer killed in the line of duty. 3d police officer

The comments weren’t outrageous, frankly.  No profanity, for example.  They were, however, decisively negative about the Chief’s leadership of the Department. 

Upon learning of the comments, the Chief spoke to the City Attorney and expressed concern about his ability to lead the Department in light of Graziosi’s posts.  Her employment was subsequently terminated for her violation of several Department policies, including Supporting Fellow Employees, Insubordination, and Discipline & Accountability. 

Graziosi appealed to the City Council but the termination decision was upheld and she filed a First Amendment retaliation claim in federal court.  Regular readers of this blog are likely more familiar than they’d like to be with the applicable test for a First-Amendment claim.  But, hey, it’s a classic, so bear with me while I go through it again.

In order for a public-sector employee to state a claim under the First Amendment in a “Facebook-firing” case, the court must determine that the speech at issue is entitled to constitutional protection and that the employee’s free-speech interests outweigh the employer’s interest in maintaining an efficient and effective workplace.  A review of any of the cases discussed in my previous posts (see the links, below), shows that the analysis usually comes out in the employer’s favor.  This is especially so in police and other paramilitary institutions because the law recognizes the need to maintain discipline and good working relationships amongst employees. 

And that is precisely what the court determined in this case, too. The court held that Graziosi’s venting on Facebook did not enjoy First Amendment protection.  Moreover, the Chief’s interest in maintaining his authority and preserving close working relationships outweighed any constitutional protection Graziosi’s speech may have had.  Thus, the court concluded, Graziosi’s termination was entirely lawful. 

Another win for employers in the workplace battle involving social media.

Graziosi v. City of Greenville, No. 4:12-cv-68-MPM-DAS, 2013 U.S. Dist. LEXIS 172581 (N.D. Miss. Dec. 3, 2013).

See also

Fed. Ct. in Oregon Upholds Facebook Firing of DHS Employee

Facebook Post Leads to Complaint, Leads to Termination, Leads to Lawsuit

11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).

image

And, if you haven’t yet cast your vote for the Delaware Employment Law Blog in the Labor & Employment category in this year’s ABA Journal Top 100 Blawgs, there’s still time!  Voting closes next Friday, December 20, though, so don’t delay.  And thank you!

Another Facebook Firing Is Upheld

Posted by Molly DiBiancaOn November 11, 2013In: Public Sector, Social Media in the Workplace

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Employees in the private sector do not have free-speech rights in their employment, contrary to popular belief.  Employees in the public sector, on the other hand, do have such rights, although they are not limitless. When it comes to First Amendment challenges to Facebook firings, employers continue to prevail in nearly every case.  Here is another such victory.

The plaintiff worked as a case worker for child-protective services investigating reports of child abuse and neglect.  In that role, she was charged with determining whether a child was safe in his or home.  If she determined that the home was unsafe, she worked with the District Attorney’s Office to petition the court for protective custody.  She testified in court about eight times a month.

In making these determinations, she was not supposed to consider the employment status, religious beliefs, or political beliefs of the adults in the home and was not to concern herself with how they chose to spend their money or furnish their home.

Plaintiff, of course, had a Facebook page.  In her profile, Plaintiff identified herself as a case worker for the Department of Human Services (DHS).  Her Facebook profile did not include a disclaimer that the opinions were her own and not those of her employer.  Plaintiff had hundreds of Facebook friends, including a judge, at least three deputy district attorneys, several defense lawyers, and more than a dozen law-enforcement officers.

She posted several negative comments about clients who drove luxury vehicles or had expensive home-entertainment systems.  In another post, she proposed a set of “rules for society,” which included:

(1) If you are on public assistance, you may not have additional children and must be on reliable birth control . . . (2) If you’ve had your parental rights terminated by DHS, you may not have more children . . . (4) If you are on public assistance, you may not own a big flat screen television; . . . (6) If you physically abuse your child, someone should physically abuse you.

A copy of the posts were forwarded to the Director of HR at DHS.  When confronted with the posts, Plaintiff admitted that she had written them and that she did hold some of the opinions that she’d expressed in the posts.  She was put on administrative leave while the matter was investigated.

As part of the investigation, the Director of HR spoke with the attorneys at the District Attorney’s office and Department of Justice that plaintiff worked with most often.  The attorneys expressed concern that the Facebook posts would be subject to discovery and that they would have to be disclosed to defense attorneys in any case involving physical abuse.  They also said that she would likely be questioned about the posts, which would be detrimental to the agencies’ ability to effectively prosecute these cases.  In effect, they said, the credibility and neutrality required of a DHS case worker had been all but destroyed, rendering her virtually useless a witness for the prosecution.  As a result, her employment was terminated.

She filed suit, alleging that her termination constituted a violation of her constitutional right to free speech.  The suit was dismissed on summary judgment.  The court explained that, even assuming the speech was subject to the protections of the First Amendment (i.e., that it was on a topic of public concern), the employer’s interests outweighed the employee’s. 

This case serves as a good reminder to public- and private-sector employers alike that, when presented with information about an employee’s Facebook or other social-networking posts, the best course of action is a calm and rational one.  Investigate like you would with any other complaint.  If the online conduct impairs the employee’s ability to perform the essential functions of the job or if it causes real disruption to the employer’s operations, discipline may be in order.

Shepherd v. McGee, No. 03:12-02218-HZ, 2013 U.S. Dist. LEXIS 159432 (D. Ore. Nov. 7, 2013).

See also

Facebook Post Leads to Complaint, Leads to Termination, Leads to Lawsuit

11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).

Facebook Post Leads to Police Complaint, Leads to Termination, Leads to Lawsuit

Posted by Molly DiBiancaOn October 30, 2013In: Public Sector, Social Media in the Workplace

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Employee posts “unpleasant” comment on Facebook.  The subject of that comment complains to employee’s employer.  Employer terminates employee.  Employee sues the complaining party—not the employer.  Interesting, right?  Here’s the case.

The plaintiff alleged that she worked as a case manager in San Antonio public schools.  She claimed that she alerted the San Antonio Police Department (SAPD), when she learned that an individual subject to a restraining order had contacted a student in violation of that order.  Officers were dispatched to the student’s home but no action was taken because the officers did not believe there to be a valid protective order in place.  

The plaintiff, believing that an order did exist, was frustrated by her feeling that the officers “did not want to do their job to protect her student.”  From her home later that day, the plaintiff posted to her Facebook account a profanity-laden comment about the “lazy ass, mother-effers on B-shift who don’t care to do their jobs the way they’re supposed to.”

The plaintiff’s husband, who was also an officer on the SAPD, allegedly received unspecified threats from other officers.  The plaintiff also claimed that a copy of her Facebook posting was displayed at the police station.

About a week later, the plaintiff claims that two officers went to the high school where the plaintiff was assigned and told the principal that they needed to speak with the plaintiff about “a complaint.”  The plaintiff claims that, after she arrived, one officer told the principal that the plaintiff should be disciplined for her Facebook message and that failure to do so would “endanger relations” between the police department and the high school.  The plaintiff also claims that one of the officers demanded that she apologize for the posting but that she refused to do so, citing her right to free speech.

She was fired the following day.  She sued the individual officers and the SAPD on a variety of constitutional grounds. The defendants moved to dismiss.

Most of the claims were dismissed but her First Amendment claim survived.  She had, after all, alleged that she engaged in constitutionally protected activity—i.e., her Facebook post.  She also claimed that the police officers told the principal that, unless the plaintiff was disciplined for that protected speech, the school’s relationship with the police department would be “endangered.”  And she was terminated the next day. 

Those facts, the court concluded, were sufficient to establish the cause-and-effect relationship necessary to survive a motion to dismiss.  As I indicated above, this case is particularly interesting because the employee did not sue her employer but, instead, sued the police—the party that she believes caused her employer to terminate her employment. 

Had she sued the employer, her claims would have been subject to a different analysis and would likely have come out in the employer’s favor.  This tactic wouldn’t work in every situation—it works here only because the complaining party (the SAPD), is a public entity.  If private citizens had complained, the plaintiff would have had very different claims.  For an example, see this recent post about a lawsuit brought by an employee about a customer who complained about the employee via social media

Do these cases indicate an expansion of likely defendants?  Will there be less lawsuits against employers or just more lawsuits altogether? 


Perez v. Tedford, No. SA-13-CV-429-XR, 2013 U.S. Dist. LEXIS 151149 (W.D. Tex. Oct. 22, 2013).

See also 11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).

11th Cir. Upholds Facebook Discipline of Police Officer

Posted by Molly DiBiancaOn October 22, 2013In: Public Sector, Social Media in the Workplace

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Here’s another Facebook-firing case to add to the “win” column for public-sector employers. [FN1] The plaintiff-police officer, Maria Gresham, posted comments on her Facebook page critical of another officer’s involvement in an arrest Gresham had made. Her Facebook page was “set to private” but, of course, the Department got wind of the comments and an investigation was initiated.  Employee Speech

The plaintiff was alleged to have violated the Department’s work rule requiring that any criticism of a fellow officer “be directed only through official Department channels . . . and not be used to the disadvantage of the reputation or operation of the Department or any employees.” [FN2]

While the investigation was pending, Plaintiff was not able to post for the several promotions that came open. Thus, she sued, alleging that she was not promoted in retaliation for her First Amendment speech on Facebook.

The District court held that, although the Facebook post did constitute protected citizen speech on a matter of public concern (thus satisfying 2 of the 3 requirements), the City’s interests in maintaining order and discipline outweighed the interest of the employee. The employee sued.

On appeal, the legal analysis came down to whether the employer was required to prove that the conduct at issue (the Facebook comments) actually caused a disruption or whether it was enough that the employer reasonably believed that a disruption would occur. The 11th Circuit sided with the government-employer, finding that the government has a legitimate interest in avoiding disruption. Therefore, the employer need not wait until an actual disruption occurs.

Yet another victory for public employers in the growing body of case law in the area of First Amendment free speech and social media.

[FN1] Technically, it’s a Facebook-failure-to-promote case. But you get the idea.

[FN2] Does this policy really work? Do employees go through “official channels” every time they want to gripe about a co-worker. If my employees were lined up outside my door to file petty complaints about who took whose sandwich from the shared refrigerator, I would surely run for the door.

Gresham v. City of Atlanta, No. 1:10-cv-1301-RWS, 2011 U.S. Dist. LEXIS 113347 (N.D. Ga. Sept. 30, 2011), aff’d No. 12-12968, 2013 U.S. App. LEXIS 20961 (11th Cir. Oct. 17, 2013).

See also

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).

No Privacy Claim for Use of Student Facebook Picture

Posted by Molly DiBiancaOn October 6, 2013In: Privacy In the Workplace, Public Sector, Social Media in the Workplace

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At a seminar about Internet safety, the District’s IT Director gave a presentation designed to illustrate the permanent nature of social-media posts and how your posts could be embarrassing if published by third parties.  One of the slides in the Director’s presentation, titled, “Once It’s There—It’s There to Stay",” showed a photo of a student in a bikini and standing next to a life-size cut-out of the rapper Snoop Dog. camera lens

The Director found the picture by browsing students’ Facebook pages for pictures to use in his presentation.  Paper copies of the presentation, including the slide featuring the student’s picture, which also identified her by name, were distributed to attendees. 

As you may imagine, the student, Chelsea Chaney, was not happy about her cameo.  She filed suit against the district and against the IT Director, alleging violations of her constitutional rights protected by the 4th and 14th Amendments, as well as state-law tort claims.  The District moved to dismiss.

First, the plaintiff contended that the public display of her picture constituted an unlawful search and seizure in violation of the 4th Amendment.  In order for the 4th Amendment to apply, there must be a reasonable expectation of privacy.  Here, the court held that no reasonable expectation of privacy could exist in the picture because the plaintiff had voluntarily made it available to her friends and, because of her Facebook settings, to her friends’ friends, as well.  By doing so, Chaney surrendered any reasonable expectation of privacy in the picture.  Thus, the 4th Amendment claim was dismissed.

The court reached the same conclusion with respect to the 14th Amendment claim. The 14th Amendment protects an individual’s interest in avoiding the disclosure of personal matters and in making certain decisions.  But the constitution does not create a blanket right of privacy.  Nor does it create a right to be free from public embarrassment or damage to reputation. 

So, what are the lessons to be learned from this case?  Well, if nothing else, it serves as yet another reminder about the permanent and public nature of social-media content.  Once you post it, it is out of your hands and you have no legal recourse if it is republished to others.

From an employment-law perspective, there is another twist.  The District had various social-media and Internet acceptable-use policies, each of which would seem to have been violated by the IT Director.  For example, District employees were required to notify a student’s parents prior to “use of and interaction with a student’s social-media page.”  Here, the Director searched students’ pages for content he could use in his presentation. 

Call me crazy but this seems like a major lapse of judgment on the part of the IT Director.  It’s one thing to give real-life examples but altogether a different thing to use as one of those examples an actual student who will be present in the audience.  Seriously?  As if high school is not hard enough, man.

Chaney v. Fayette County Pub. Sch. Dist., No. 3:13-cv-89-TCB (N.D. Ga. Sept. 30, 2013).

See also Is There a Reasonable Expectation of Privacy In Your Tweets?

Judicial Notice of LMAO

Posted by Molly DiBiancaOn July 24, 2013In: Public Sector, Purely Legal, Social Media in the Workplace

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In preparing for an upcoming social-media seminar, I was reviewing my always-expanding research file of cases that address social media in employment law.  It’s a challenge to keep up with all of the new case law as it is decided so it’s a rarity that I re-read opinions.  But, when I do, I almost always stumble across a jewel or two that I didn’t notice in the first (or second) reading. 

One such case is Spanierman v. Hughes, which was one of the earliest cases involving what I now call a “Facebook firing.”  The case, decided in 2008, was decided pre-Facebook, though, so the social-media site in question was MySpace. 

The case was an important one for public-sector employers, upholding the decision to terminate a teacher who posted unprofessional content on his MySpace page and used his account to communicate even less professional and sometimes inappropriate messages with his students.  The teacher brought his suit under the First Amendment, arguing that the content and messages constituted protected free speech.

But this time around, I noticed a footnote that I’d not caught in my first readings of the case.  Specifically, the court took judicial notice of some abbreviations that are now part of our everyday vernacular.  The court also takes judicial notice of the definition of an “emoticon" and even provides some examples!

Judicial notice, if you’re not familiar with the term, is a way for the court to accept as true a fact that is not in the record but that is not subject to dispute.  For example, a court could take judicial notice of the distance between two locations by referencing a map (or, in today’s world, MapQuest, I suppose).  Here’s the text of the footnote, in case any lawyers who are reading someday want to cite a case as support for what “LOL” and “LMAO” stand for:

The court has not altered the contents of this or any other exchange taken from the Plaintiff's MySpace profile page. The court takes notice that spelling and grammatical rules are not always closely followed in such casual or informal online exchanges, and that oftentimes certain phrases are abbreviated or expressed in a form of shorthand (e.g., "LOL" can mean "laughing out loud," and "LMAO" can mean "laughing my ass off"). Furthermore, such exchanges often contain so-called "emoticons," which are symbols used to convey emotional content in written or message form (e.g., ":)" indicates "smile" or "happy," and ":(" indicates "frown" or "sad").

A more recent decision in which it appears that the judge took judicial notice of the existence of an entire Facebook page was reported on the Bow Tie Law Blog.  That decision has far greater legal significance but it’s not quite as much fun as the “LMAO footnote” discussed above. At least that’s IMHO.  ;o)

Spanierman v. Hughes, 576 F. Supp. 2d 292, 312-313, n.13 (D. Conn. 2008).

See also

Workplace Email: The Devil Made Me Do It

Why I May Have to Eat My Emoticons

Is There a Reasonable Expectation of Privacy In Your Tweets?

Posted by Molly DiBiancaOn July 23, 2013In: Public Sector, Social Media in the Workplace

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Privacy law is a hot topic these days.  In both the public and private sectors, employees’ privacy rights are governed by whether or not the employee had a reasonable expectation of privacy.  In the private sector, this is a common-law tort for the invasion of privacy.  In the public sector, it becomes a constitutional question under the Fourth Amendment.  twitter privacy

An interesting case from the District of Nevada earlier this month demonstrates the Fourth Amendment analysis in the context of social media. In Rosario v. Clark County School District, a student brought a Fourth Amendment claim after he was disciplined because of tweets (i.e., posts to Twitter), he had made that were critical of the school and its faculty.[1] The student argued that he had a reasonable expectation of privacy in his tweets because a limited audience (his followers) viewed or read his tweets.

The court rejected this argument, explaining:

When a user with a public privacy setting tweets a message, he or she intends the message to be heard by the public at large. It just happens that typically the only people that read the tweet are the users' followers. A tweet from a user with public privacy settings is just a twenty-first century equivalent of an attempt to publish an opinion piece or commentary in the New York Times or the Las Vegas Sun. When a person with a public privacy setting tweets, he or she intends that anyone that wants to read the tweet may do so, so there can be no reasonable expectation of privacy.[2]

This reasoning is consistent with the idea that there is no “limited-audience” expectation of privacy. In other words, once an individual publishes information to another person, absent a lawful privilege, such as the attorney-client or spousal privilege, the individual has no reasonable expectation of privacy in that information. Once it has been published to another, it is no longer protected.

The Rosario court affirmed this principle, stating:

A Twitter user with his or her privacy setting set to private has a more colorable argument about the reasonable expectation of privacy in his or her tweets than a user with a public setting. However, even with a private account, the user is still disseminating his postings and information to the public, and they are not protected by the Fourth Amendment.[3]

The court elaborated that, when a person “tweets on Twitter to his or her friends, that person takes the risk that the friend will turn the information over to the government.[4]

One of the cases cited in the Rosario decision similarly supports this holding. In United States v. Meregildo, the Southern District of New York held that the government does not violate the Fourth Amendment by gaining access to a Facebook page through a cooperating witness who is Facebook friends with the account holder. [5]

Thus, the Rosario decision is consistent with the case law. Unfortunately, many courts have not been quite this consistent when determining whether a reasonable expectation of privacy exists in social-media content in the context of discovery disputes.


[1] No. 2:13-CV-362 JCM (PAL), 2013 U.S. Dist. LEXIS 93963 (D. Nev. July 3, 2013).

[2] Id. at *15

[3] Id. at *16 (internal quotations omitted).

[4] Id. (citing United States v. Meregildo, 883 F. Supp. 2d 523, 526 (S.D.N.Y. 2012) ("When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment.").

[5] 883 F. Supp. 2d at 526.

Teacher's Facebook Firing Upheld by N.J. Appellate Court

Posted by Molly DiBiancaOn January 15, 2013In: Public Sector, Social Media in the Workplace

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Schools have been dealing with the social-media blues, basically, since Facebook was merely a glimmer in Mark Zuckerberg's eye. See Social-Media Woes for School Districts and More Social-Media Woes for School Districts. The balancing act is a tricky one. On one hand, you have the First Amendment rights of teachers to live a life outside of the classroom and to post about it on their blogs and social-networking site. On the other hand are the school's rights as an employer to accomplish its primary mission--to educate students--and to manage its operations effectively.
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There are plenty of news stories about teachers who are disciplined or terminated due to information posted online. And, unlike most areas of the law involving social-media issues, there are several reported opinions on this question. More often than note, the termination decision is upheld, based on the court's finding that the teacher's First Amendment rights were outweighed by the school's interest in maintaining peace and order.

Occasionally, though, a decision comes down the other way, finding that the teacher was unlawfully terminated. One such case involved a first-grade teacher from Paterson, New Jersey. We first reported on this story in November 2011, when parents complained that Jennifer O'Brien had referred to her students as "future criminals" and analogized her job to being a "warden" in posts on her Facebook page.

At the administrative level, the administrative law judge recommended that O'Brien be terminated for her Facebook posts. The ALJ determined that the school district's need to operate efficiently trumped Ms. O'Brien's free-speech rights because "thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools."

O'Brien appealed the ALJ's decision to the acting commission of education. When the commission agreed with the ALJ, O'Brien appealed to the New Jersey courts. Last week, the appeals court issued its ruling, upholding the termination. In short, the court found that her comments were, indeed, "conduct unbecoming a tenured teacher," which is any conduct that has a "tendency to destroy public respect for government employees and confidence in the operation of public services."

Mark another line in the Win column for employers.

See also,
The State of the Social-Media Mess in Public Schools
Students, Teachers, and Social Media
No 1st Am. Protection for Teacher's Facebook Posts
Court Denies Reinstatement to Teacher Fired for Facebook Posts
N.Y. Teacher's Firing Overturned Despite Facebook Wish that Students Drown
Blogging Teacher Returns to Work After Suspension for Posting About Students

The State of the Social-Media Mess in Public Schools

Posted by Molly DiBiancaOn October 7, 2012In: Public Sector, Social Media in the Workplace

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Teachers and social media. If you're in the business of writing news stories about poor judgment, this is the gift that just keeps giving. If, however, you're an educator, a school administrator, or a parent, this is a combination with potentially grave consequences. Here's yet another shocking example of a teacher who seemingly lost all perspective when she posted about her students on her Facebook page.
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As reported by the N.Y. Post, here are a sampling of the comments, Patricia Dawson, a "highly-regarded English teacher" posted:

  • she described one of her 11th-grade classes as "suicide-inducing;"
  • she dreaded upcoming presentations by two students--who she named in the post--saying, "I will be quietly imploring anyone to end my life . . . and no one will be there to supply a gun;"
  • she described one of her students as the "WORST be (sic) he's unteachable and the weirdest human being EVER!"
  • she wrote, "I consider all immigrants as potential gun carriers;" and
  • she asked, "What bad can happen when young people invest in high-powered firearms? Nothing. . . . nothing at all."
Charming. Just charming.

As a quick aside, I'll just note that it seems that it's the high-school English teacher who makes the offensive Facebook comments about current students. (See, for example, these two prior posts: Blogging Teacher Returns to Work After Suspension for Posting About Students and N.Y. Teacher's Firing Overturned Despite Facebook Wish that Students Drown). Why is that?

Now, if you thought her comments were shocking, I've got a few more even more shocking facts for you to ponder.

First, the teacher was Facebook friends with several of her students. In my opinion, this is a per se bad idea. Teachers should not be Facebook friends with any student in their school who is not the teacher's child. Period. That's it. No discussion. To me, it demonstrates not only bad judgment on behalf of the teacher to be friends with these students but then to post about other students and think her posts wouldn't make it back to the kids she was talking about.

Second, the teacher also was Facebook friends with the President of the PTA. If the kids didn't report her, didn't she think that the PTA President would?

Third, and most disappointing, even if not the most shocking, this teacher was terminated after her online rant in January 2011. Her tenured status, though, meant she had the ability to appeal the decision, which, you may imagine, she did. The arbitrator who decided her appeal, concluded that the teacher "horribly abused her position of trust" with her "cruel andemeaning" Facebook posts. However he also found that she was a "dedicated teacher" and was "not irredeemable." He ordered her to pay a fine in the amount of $15,000 and take a course on "appropriate boundaries and relationships between teachers and students."

That was last June. The DOE, though, has not yet reinstated the teacher, although she remains on the payroll.

I don't know what the solution is to this problem. Suspending the teacher in this case seems necessary, doesn't it? If you were the parent of one of the students named in her online rant, would you be happy about her return? I wouldn't. I could imagine the disruption that her return would cause--if not an outright riot.

But, at the same time, who benefits by keeping her on the payroll and expending the district's already stretched-thin resources while she sits at home, educating no one? No one. If judges and arbitrators are going to let teachers who publicly exhibit "cruel and demeaning" behavior towards the students they teach return to the classroom, schools need to take a different tactical approach. It seems to me that training teachers before they exercise poor judgment is absolutely critical if schools stand a chance in preventing these stories from continuing to make headlines.

See also
Students, Teachers, and Social Media
No 1st Am. Protection for Teacher's Facebook Posts
Court Denies Reinstatement to Teacher Fired for Facebook Posts
Social-Media Woes for School Districts
More Social-Media Woes for School Districts

YCST Attorneys Present at DELPELRA Conference

Posted by Molly DiBiancaOn September 27, 2012In: Delaware Specific, Locally Speaking, Public Sector, Seminars, Past, YCST

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Attorneys from Young Conaway traveled to Dover today to present at the Annual Training Conference for the Delaware Public Employer Labor Relations Association (DELPELRA).
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Tim Snyder presented on the impact of health care reform on public employers. He also gave an overview of what public employers are doing to address the challenges of funding their pension plans.

Scott Holt provided practical tips on avoiding claims and litigation under the Fair Labor Standards Act (FLSA). Scott addressed misclassification of employees and failure to pay properly for breaks, training time, and travel time.

David Hansen wrapped up the Young Conaway portion of the program by speaking efforts of the IRS to tax employee benefits such payments for uniforms and the like.

Debbie Murray-Sheppard, the Executive Director of the Delaware Public Employment Relations Board (PERB), was the luncheon speaker. She updated the group on the activities of the Board over the past year.

After conclusion of the Conference, DELPELA held its annual meeting. Alan Kujala, Chief Human Resources Officer of Kent County, was elected its new President. Young Conaway's Bill Bowser was reelected as General Counsel.

Students, Teachers, and Social Media

Posted by Molly DiBiancaOn September 26, 2012In: Privacy In the Workplace, Public Sector, Social Media in the Workplace

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Delaware was the first State to legislate the privacy of students' social-media passwords. California's legislature was the first and, so far, the only State to pass a bill that protects students' and employees' social-networking passwords. That bill is awaiting the signature of California's Governor. For more information about the California law, check out this great post at Seyfarth Shaw's Trading Secrets blog in which the authors were nice enough to mention my previous post on the topic. (Even if they did call me by [gasp] my legal name, Margaret. It's not their fault my parents couldn't pick just one name and stick with it.)

But a state statute is not necessarily the only way to protect students' free-speech and privacy rights in their online content. As reported by blawgger extraordinaire,Venkat Balasubrami, and, subsequently, by GigaOm.com, a federal judge in Minnesota recently held that a school violated a 12-year-old student's First Amendment rights when it cooerced her into turning over her Facebook password so school administrators could investigate comments the girl was alleged to have made.

Although schools' access to students' social-media accounts may be the hot topic du jour but it's not the first. For about as long as Facebook has been around, teachers have been getting into trouble for what the post on it. One of the most distasteful types of posts are those in which a teacher criticizes his or her students.

Long-time readers and Philadelphia-area natives may recall the story of Natalie Munroe, an AP English teacher who was suspended after parents and students discovered posts she'd written, mocking and demoralizing the youths in her class.

A story was recently reported in North Carolina, where a high-school teacher was suspended pending an investigation involving simlar allegations. The English teacher is alleged to have posted photos of her students' works, highlighting the grammar gaffes and misspellings and making fun of their mistakes. Although her Facebook posts were not public, someone with access to them (i.e., a "Facebook Friend"), reported the photos to school officials, which prompted the investigation.

Although the stories vary slightly from one to the next, I continue to believe that the key lessons are time tested. For those who in charge who receive a complaint about a comment made online, deal with the problem for what is--no more and no less. Don't overreact and, for heaven's sake, don't make little girls cry in order to get access to their Facebook pages.

And for those who are posting, think before you do so, just like you would, hopefully, think before you speak. For teachers, don't post about a comment online about student that you wouldn't say directly to the student's parent. And, even more basic, don't mock people's weaknesses. Nobody likes a snob and grammar snobs are no exception.

Your Tattoo Says a Lot About You, Constitutionally Speaking

Posted by Molly DiBiancaOn September 12, 2012In: Public Sector

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Tattoos are intended to convey a message. Whether it's an old-school-style pinup girl or the modern favorite "tribal language," the tattoo bearer, presumably, gets inked because of the message that it conveys. Perhaps the message is meant only for the tattoo bearer but perhaps it is intended for those who see it. Maybe it's a combination of both.

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Either way, residents of Arizona now have a First Amendment right to send a message via permanent body art, according to the Arizona Supreme Court. Last week, the court ruled last week that tattoos are a form of protected speech. In reaching its opinion, the court looked to an earlier decision by the 9th Circuit, which held that a tattoo is pure speech and that the act of tattooing is expressive activity.

The case was remanded to the Maricopa County Superior Court, which will decide whether the city has the authority to regulate tattoo parlors. The decision must take into consideration that the tattoo shops are engaged in constitutionally protected speech.
So why does this matter to employers? I can think of two questions that the decision would seem to raise.

First, does the opinion support the argument that a Facebook "like" constitutes speech subject to constitutional protection? (If you've got no idea why this matters, see my prior post, Social Media as Speech).

Second, does this mean new obligations for public employers in Arizona? Since a tattoo is protected speech, government employers cannot regulate it without a reasonable justification for doing so. Will this be the end of tattoo-prohibitions in Arizona's public sector?

Via WSJ.com