Delaware Employment Law Blog

Is a public-sector employee engaging in "speech" for purposes of the First Amendment when he "likes" a post on Facebook? A recent decision from the Eastern District of Virginia concludes that the answer is "no." In Bland v. Roberts (E.D. Va. Apr. 42, 2012), the court held that employees in the Sheriff's Department did not engage in protected speech by "liking" their boss' political opponent's Facebook page. When the boss won the election, he fired six employees, who filed suit alleging 1st Amendment retaliation.

One employee claimed to have sent a "statement of support" to the losing candidate during the campaign. The only evidence presented to the court about such support was that he "liked" the candidate's Facebook page. In declining to find this expression entitled to constitutional protection, the court explained that:

merely 'liking' a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements were within the record.

This decision has sparked a lot of fires around the blawgosphere. For example, on the Citizen Media Law blog, Arthur Bright analogizes "liking" to signing an online petition, which certainly would constitute speech. He argues that "liking" a post on Facebook relies on the same type of substantive expression. Venkat Balasubramani and Eric Goldman made this point on the Technology and Marketing Law Blog, as well.

I would not be at all surprised if the decision is appealed given the novel nature of the question (potentially, anyway), and the publicity the case has received. Until then, you may want to review other posts related to the effect of social media on the public-sector workplace. For example, this recent story about a firefighter's Facebook post about the Trayvon Martin case.

Facebook indiscretions. Employees continue to make headlines by displaying bad judgment in circumstances ranging from the banal to the deeply disturbed. And employers continue to face difficult choices. Private-sector employers face possible claims under the NLRA. Public-sector employers face possible First Amendment claims.

Some cases, though, present a compelling case for employer action in response to Facebook comments posted during off-duty time. This is one of those case.

Miami-Dade Fire Department Captain Brian Beckmann posted a comment on his Facebook page about the Trayvon Martin case. Beckmann's post took aim at the prosecutor in the Martin case and claiming that "urban youth" are the products of "failed sh*tbag, ignorant, pathetic, welfare dependent excuses for parents."

A source who viewed the post sent a copy of it to thegrio.com, which broke the story. As you may imagine, many members of the public have raised serious doubts about Beckmann's fitness for duty as a public servant.

The racist nature of the posts also raises questions about what an employer can and should do when it learns of an employee's Facebook posts that seem to conflict with the employee's job duties.

[H/T Richard D. Tuschman at HR Defense Blog]

Christine Rubino had been a teacher in Brooklyn for 15 years without any disciplinary history when she was terminated in response to comments she posted about students on her Facebook page. Specifically, Rubino posted that her 5th-grade students "deserved to drown." And, when asked whether she would "let little Kwame float away," Rubino responded with: "Yes. I would not throw a life jacket in for a million," reports the Huffington Post.

Even more shockingly, the comments came just one day after a 12-year-old girl drowned during a class trip to Long Island beach.

A disciplinary hearing officer found the teacher guilty of "misconduct, neglect of duty, and conduct unbecoming her profession" and, as a result, Rubino was terminated. She subsequently appealed to the N.Y. Supreme Court, which overturned the decision.

Writing for the court, Justice Barbara Jaffee described Rubino's posts as "repulsive." Yet, she went on to conclude that, under the circumstances, the termination was too disproportionate to the offense, thereby requiring that the termination decision be overturned.

The district does not have a social-media policy but, according to the N.Y. Post, fired three teachers last year for inappropriate online posts.

This decision is a difficult one to reconcile with some of the recent cases in which similar comments were held to warrant the termination of a teacher. But Evan Brown writes on his Internet Cases blog about an even more perplexing part of the court's decision. He describes the court's take on the issue of proportionality between the nature of the wrong and the consequences imposed as "contextual integrity." Here's the language from the court's decision that Evan cites to:

[

E]ven though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable.

Note the potential impact of the last part of this sentence. The potential impact is enormous. Essentially, the court says that ignorance of consequences for Facebook posts is legally sufficient to establish a reasonable expectation of privacy. This single sentence effectively recognizes the right to publish to a limited audience; a concept that has been consistently rejected by courts. At least until now.

Rubino v. City of N.Y., 2012 NY Slip Op 30246(U) (N.Y. Sup. Feb. 1, 2012) (PDF)

Continuing the theme from yesterday, here is another story of the impact social media is having on educators. This story is a follow-up to the post written last month by Michael Stafford, No First Amendment Protection for Teacher's Facebook Posts. By way of recap, Jennifer O'Brien was a first-grade teacher in a largely black and Latino school in Paterson, New Jersey, posted on Facebook that she felt like a "warden for future criminals," as reported by NPR.

O'Brien was terminated and subsequently filed suit alleging the district had violated her First Amendment rights. When the suit was later dismissed, O'Brien's lawyer defended her client's Facebook comment, syaing that it was not a reflection of how O'Brien felt about her students. Instead, claimed the lawyer, the comment had been a mere expression of frustration made at the end of a tough day.

I find that defense a bit difficult to buy, frankly. It requires us to disregard what a teacher writes because she "didn't really mean it"? In other words, "Do what I say and not what I do." That sounds like a bad idea for anyone but particularly for a teacher, who is supposed to serve as a role model for the children she teaches.

See also, Social-Media Woes for School Districts

Teachers' use of social media continues to make headlines. NPR reported on a recent incident in New Jersey, involving Union High School teacher, Viki Knox. Knox was suspended in response to outrage surrounding comments she'd posted on her Facebook page.

It started with her post that the school's gay-history exhibit should be removed. She later urged her friends to pray and called homosexuality a "perverted sin," according to NPR. After parents complained about the comments, the school district began an investigation. Later, Knox's supporters and those demanding her resignation faced off in a protest at a school-board meeting.

As I've previously explained, a three-step test is used to determine whether a public employer, including school districts, may discipline an employee due to the employee's speech. First, the court will ask whether the employee was speaking as a citizen or as an employee. Here, that question could be answered either way. Assuming the exhibit was not related to Knox's job duties, it is reasonable to conclude that her Facebook comment was made in her capacity as a citizen, in which case the speech would be protected in the first stage of the analysis.

In the second stage, the court asks whether the speech was on a matter of public concern. Let's again assume that Knox's comment meets the test. If that's the case, the court turns to the final stage of its analysis and asks whether the employer's interest in maintaing an efficient and effective workplace outweighs the employee's interest in free speech.

Here's where Knox's claim would likely fail. The school district would be able to show both actual disruption and the potential for disruption. The protests and complaints received by parents shows that the employee's speech was disruptive to the district's operations.

The school district also would be able to show that there was a potential disruption in the form of loss of trust and respect by parents and students. To the extent that Knox's comments about the "sinful" nature of homosexuality contradicts the district's stated values of tolerance and diversity and that contradiction potentially could result in the inability of Knox to effectively connect with students and parents, the district would be able to discipline her for her speech without violating the free speech protections of the First Amendment.

Facebook has landed another public school teacher in hot water. An administrative law judge in New Jersey has recommended that a school district terminate Jennifer O'Brien for her Facebook posts, in which she referred to her first-grade students in Patterson, New Jersey as "future criminals" and analogizing her job to being a "warden" in a Facebook post.

According to the NSBA, parents initially discovered and reported the teacher's Facebook musings.
In the words of the ALJ, the teacher "demonstrated a complete lack of sensitivity to the world in which her students live. The sentiment that a 6-year-old will not rise above the criminal element that surrounds him cuts right to the bone." In the ALJ's view, the district's need to operate efficiently trumped any free speech rights because "thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools."

The lesson here is clear- exercise good judgment when using social media and remember, the world is watching!

You may have heard about the Teamsters’ complaint, filed with the NLRB, which alleges, in part, that a Connecticut employer’s social-media policy constitutes an unfair labor practice under Section 8 of the National Labor Relations Act.  In short, the Union contends that the employer, American Medical Response Team, has a social-media policy that prohibits employees from disparaging their supervisors online, which, the Union contends, is overly broad so as to effectively preclude employees from engaging in protected concerted activity of discussing workplace conditions and terms of employment.  The Union also contends that the employer disciplined an employee pursuant to the policy when she and other employees disparaged their supervisor on the disciplined employee’s Facebook page.

Well, the Teachers’ Union in Manatee County, Florida, has filed a similar complaint—this one alleging that a proposed social-media policy is overly broad so as to violate their right to free speech pursuant to the 1st Amendment. 

The First Amendment protects individuals from government action—which means that non-government employees (i.e., those employed in the private sector), cannot make out a constitutional claim based on free speech.  In the public sector, though, such as in public-school districts, employees do have constitutional rights.  But those rights are not unlimited. 

The basic free-speech analysis asks three questions.  First, is the speech on a matter of public concern?  If not, constitutional protections do not attach.  For example, if the policy prohibits employees from discussing standard workplace grievances, such as work schedules or budget issues, the speech is not of a public concern and not protected. 

Second, is the employee speaking as a citizen or as an employee?  This step of the analysis is relatively new and derives from the Supreme Court’s Garcetti decision.  The newness of the question means that the courts are still navigating the exact contours and the decisions vary greatly.  Generally speaking, though, if an employee speaks only to his or her supervisor or coworkers, as opposed to, for example, writing a letter to the editor of a local newspaper, the speech is said to have been made as an employee and is not therefore protected. 

Third, if the speech is on a matter of public concern and is made by an employee speaking as a citizen, the courts conduct a balancing test to determine whether the government’s interest in maintaining an effective, non-disruptive workplace outweighs the employee’s right to speak freely. 

If the Florida case proceeds, the court will have to determine whether the proposed policy has the effect of prohibiting what would otherwise be protected speech.  One problem for the Union, though, is whether the case will proceed at all.  It is only a proposed policy, so there may be an issue of justiciability—whether the court has jurisdiction to hear the case when there has not yet been any harm to the plaintiff.  Some may argue that, by merely filing suit instead of trying to negotiate the terms of the policy, the Union has acted in an unreasonable manner designed more for media attention than to effectuate meaningful change.  We’ll have to wait to see what the court decides. 

Employees' rights to free speech seems to become a hot topic right around election time.  During a very rare interview with Larry King last night, Supreme Court Justice Breyer discussed the importance of free speech. Larry, being the inquisitive interviewer that he is, asked Justice Breyer about Reverend Terry Jones's highly controversial decision to burn copies of the Koran on the anniversary of 9/11.

The Justice compared Jones's plans to the burning of the American flag, a practice that the Justice was repulsed by during the Vietnam War era. Jones was eventually dissuaded from following through on his plan, thanks in part to calls from Secretary of Defense Robert Gates. However, the Justice noted that Jones was well within his First Amendment rights to carry through with his controversial plan, reminding us all that freedom of speech applies equally to popular and unpopular speech.

While private employers are not subject to the restrictions of the First Amendment, this is certainly an issue for public employers to take to heart. Jones's actions and the upcoming elections may well spark political speech within the office. Such speech is generally protected, unless it falls within one of a very few prohibited categories, including profanity and fighting words.

Employers everywhere are facing new challenges when it comes to employees’ use of social media. These technology-based challenges are different, though, for every employer and have different nuances between industries. Certain employees’ off-duty posts on social-networking sites, such as Facebook, can have significantly more impact than others. Police officers are one such type of employee.

For example, one criminal defendant in New York, who was facing charges for weapons possession, used the arresting officer’s MySpace and Facebook pages to get the charges dismissed. At trial, the officer was questioned about his Facebook status, which said that he was “watching Training Day to brush up on proper police procedure.” And, on the day of the defendant’s arrest, the officer’s “mood” on his MySpace page was set to “Devious.”

A Columbia, Missouri police officer was issued a serious discipline after internal affairs determined that he had posted information about the juvenile record of a protester who had been photographed and quoted in a newspaper story about police brutality. Although the officer has posted the comments under a pseudonym, the protester (and his lawyer) didn’t have to jump to too many conclusions before guessing someone from law enforcement was the likely poster, simply given the fact that juvenile records are not available to the public.

These stories are just two examples of the difficulties employers face when attempting to manage employees’ off-duty Internet activities. These Web 2.0 challenges, though, are complicated anytime a public servant is involved. And, as these stories show, public employees who interact directly with the public will be held to an even higher standard than most.

For more on social media and off-duty conduct, see:

Employee Fired When Her Sex Blog Is Discovered by Her Boss

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

State Off-Duty Conduct Laws and Facebook-Friending Policies

Use Twitter, Get Fired

The Delaware Supreme Court has clarified key procedural requirements for terminating non-tenured teachers set forth in a decision issued last week, Angstadt v. Red Clay Consolidated School District.

Section 1410(b) of Title 14 of the Delaware Code states that a non-tenured teacher may request in writing the reasons for his termination after.  The statute requires the district to "provide such reason or reasons in writing" and that "the stated reason or reasons must have either been contained in the teacher's performance appraisal, and the teacher was provided time to correct any deficiency through an individualized improvement plan or other documented materials properly placed in the teacher's personnel file prior to said notice."

According to the Delaware Supreme Court, the term "personnel file" means exactly that- a physical personnel file- and does not simply refer to the type of documentation.  Moreover, documents supporting the decision to terminate a non-tenured teacher's services must be in the personnel file at the time the district's makes its decision.  However, the Court took a very broad view of what constitutes "other documented materials."  Such documents are not merely limited to reprimands or other disciplinary documents.  In this instance, a Lesson Analysis noting some difficulties controlling the classroom constituted the "other documented material" that sufficiently supported the school district's decision to terminate. 

In light of the Angstadt decision, districts will need to review their procedures to ensure that disciplinary documents are promptly placed in teachers' personnel files.  In addition, school districts would be well advised to review the contents of personnel files prior to distributing notices of their intention to terminate non-tenured teachers to ensure that documents supporting the decision are located in the file. 

Angstadt v. Red Clay Consol. Sch. Dist., No. 08C-03-051 (Del. July 8, 2010)

Barry Willoughby and I attended Utica National Insurance Group's 2010 School Risk Management Seminar.  During the seminar, the speakers were kind enough to allow us to generally comment on the topic of what school faculty and staff must know about emerging technology to keep staff and students safe.  The conversation was dynamic and attendees asked some timely and tough questions about things like how to handle staff and student use of social networking sites like Facebook, Twitter, and MySpace to how to handle "sexting" at work. 

We will be covering some of these same topics at our 2010 Employment Law seminar.  To give you an idea of what the topic of conversation will be at our Employment Law Seminar, my materials from the School Risk Management Seminar are attached below.  I look forward to seeing you at this year's seminar in the afternoon breakout session, "Special Rules for Schools," which I will be presenting with Michael P. Stafford.

 

J.S. v. Blue Mountain School District is a First Amendment claim in the school-law context. The case was filed by J.S., a student at a middle school in Pennsylvania’s Blue Mountain School District. The student claimed that she had been suspended for 10 days in violation of her right to free speech. The suspension was in response to a fake MySpace profile the student had created.

The fake profile purported to be her school’s principal. It contained his picture, which she obtained from the school’s website. It did not identify him by name but did identify him as a middle-school principal.

The profile was written in the first-person so the comments on the page would be attributed to the person pictured (i.e., the unknowing principal). The content of the profile contained profanity to make most adults blush in the presence of mixed company, was sexually graphic, and even indicated that the principal was a pedophile.

The student initially left the page as public, but later changed the settings to private. The student invited others to view the page, though, and those students invited yet more students. The principal learned about the profile from one of the students. After viewing the site, he met with the appropriate members of the district and then suspended the two students responsible. One student (through her parents) then sued.

The district court found that the suspension had not violated the student’s First Amendment rights under Tinker because the school “could reasonably have forecasted a substantial disruption of or material interference with the school.” The Third Circuit affirmed the decision and agreed with the trial court’s analysis.

The student also argued that the district violated a Pennsylvania statute, which limits the conditions under which a school may impose discipline. She claimed that the statute prohibited the school from disciplining a student based on conduct that occurred off of school property and time. The district court rejected that argument because: (1) the student was enrolled in the district when she created the profile; and (2) the principal punished the student “to prevent interference with the educational process.”

It is a powerful decision for the education-law context but also demonstrates the courts’ willingness to discipline students for conduct outside the school walls. This is a logical progression, especially considering cases upholding the discipline of teachers for their off-duty conduct. It seems like a natural progression as the line between home and work (or school) continues to blur.

Delaware employers--private and public--may benefit from a recent decision from the Delaware Supreme Court upholding the termination of a school teacher.  The elementary school cited "immorality" as the basis for the termination of a 34-year old male teacher.   Lehto v. Board of Education of the Caesar Rodney School District, No. 175, 2008 (Del. Dec. 2, 2008).

The court held that the teacher, who had a sexual affair with a 17-year old female student, was guilty of immorality.  The student did not attend school in the district where the teacher worked, although her sister did, but the teacher had taught her some years before in elementary school.

The teacher had renewed his acquaintance with the student when she began coming to his school to pick up her younger sister, and they began an intimate relationship. Eventually, the affair became known in the community, and the teacher was charged with fourth degree rape, but the charge was nolle prossed because the teacher was not in a position of trust or supervision over the student. After a hearing, the school board terminated the teacher, who had positive teaching evaluations, concluding that his “engaging in a sexual relationship with a minor . . . violated the common mores of society” and “interferes with [the teacher’s] important function of serving as a role model to the students.”

The termination was upheld by the Delaware Superior Court and affirmed by the Delaware Supreme Court. Even though the conduct took place outside of the school and with a non-student of the district, “there was a proper nexus between his alleged off-duty conduct and his fitness to teach.” Especially interesting and broadly significant is the court's conclusion that the public disclosure of the relationship permitted the inference that allowing the teacher to remain could "reasonably undermine parents' confidence in both [the teacher] and the District."

Private employers are often faced with decisions concerning off-duty conduct of their employees. One rationale that has been applied is whether the conduct, if it became public, could damage the employer’s reputation. Most frequently, the issue arises when employees who enter people’s homes as part of their job are charged with, but not yet convicted, of crimes. This case supports the conclusion that if public confidence in the employer would be undermined by the knowledge that the employer retained an employee who was charged with a notorious crime, that is a sufficient reason for termination.

This isn't the first time off-duty conduct has played a role in the termination of a teacher:

People, don't you understand: More Teacher Social Networking Woes 

Terminating Employees for Off-Duty Conduct 

MySpace and Employment: Another Tale of Woe

Off-Duty Conduct of College Pres Leads to Firing

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."   

The U.S. Department of Labor's (DOL), Office of Labor-Management Standards (OLMS), issued a final rule that will provide union members with more complete information about finances held in union trusts.  Union trusts are established and maintained primarily to provide benefits to union members and their beneficiaries, and common examples include credit unions, strike funds, redevelopment or investment groups, training funds, apprenticeship programs, building funds and educational funds. Under the rule, unions will be required to annually file a Form T-1 for trusts in which a union, alone or in combination with other unions, possesses managerial control or financial dominance.

The Form T-1 will use the same basic template as the existing Form LM-2. Only labor unions with total annual receipts of $250,000 or more will need to file a Form T-1. Additionally, labor unions will not be required to file a Form T-1 on trusts subject to certain other disclosure requirements.

The union-trust transparency rule was issued on the same day as the regulations dealing with the Family and Medical Leave Act (FLMA).