Delaware Employment Law Blog

The blogroll at the Delaware Employment Law Blog currently houses approximately 150 links to blogs in a variety of topic areas.  I started the links page, which you can find under the "Resources" tab at the top of the page, as a way to store the crazy number of feeds I had collected.  Well, in the roughly 9 months since then, I have managed to accumulate nearly ten times the original amount!  Yes, I've collected roughly 1,500 blog links.  I've been checking the validity of the links and categorizing them in a way that will can understood by "normal people."  While that project is being finished, though, I thought it only due to recognize some of my favorites on the list.  So, with that being said, here are a few posts about work that I hereby deem worthy of a read.

John Phillips at The Word on Employment Law posted on the normalcy of visible tattoos in the workplace. 

Jon Hyman at the Ohio Employment Law Blog has a comprehensive post on the ADA Amendments Act, which is bound to be a hot topic for many months to come.  Not to be accused of showing favorites, but Jon also has an easy-to-understand piece on everyone's favorite intermittent leave under the FMLA and, specifically, the recertification requirements that employers can impose.

The First Amendment Prof Blog directs our attention to a case involving school teachers who've filed constitutional claims alleging free speech violations over a school rule banning political pins worn by employees.

At The New Age blog at the N.Y. Times is a thought-provoking post on the language choices we make called, How Not to Offend the Aging.  Take the opportunity for a refresher in what's ok to say.

I have to give a major shout out to Ask a Manager, who advises job applicants to stop dressing down for interviews at nonprofits.  Amen.  Although there has been a lot of advice in the opposite direction, I stand firm in my belief that it is better to be overdressed than underdressed.  Worst case, you look like an over-eager job candidate, which, in my world, is an excellent quality.  I want candidates to be eager, and passionate, and enthusiastic, about the potential of working at our organization.

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. 

Savvy employers know the potential value of a sexual harassment policy.  Without an effective harassment policy, employers may not avail themselves of the most common (and successful) defense.  Employers take pains to ensure that their sexual and other types of harassment policies are thorough, are communicated to employees, and are capable of remedying the conduct as promptly and effectively as possible.  

So you can imagine the disappointment of Temple University when the Court of Appeals for the Third Circuit recently struck down the University's sexual harassment policy.  The court held that the policy was overly broad and improperly infringed on the free-speech rights of students.  Public employers should heed this warning--an overly broad harassment policy runs the risk of being invalidated.

And are you wondering what it was that the plaintiff claimed he could not say because of the sexual harassment policy?  The former graduate student who filed the lawsuit claimed that the policy prevented him from expressing his opinions about the role of women in the military.

The plaintiff, Christian DeJohn, was enrolled in Temple's Masters program, where he was pursuing a degree in Military and American History.  The topic of DeJohn's masters thesis was the role of women in the military.  DeJohn argued that the policy restricted his ability to voice his opinions.  After DeJohn commenced his litigation, Temple voluntarily amended the policy.

The Third Circuit found two problems with the school's sexual harassment policy.  First, the policy, which prohibited "all forms of sexual harassment," specifically targeted “expressive, visual, or physical conduct of a sexual or gender-motivated nature when… such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or . . . of creating an intimidating, hostile, or offensive environment.”  The problem with this language is that the policy barred such conduct regardless of whether it actually had such an effect.

Second, the Court found that the language of the anti-harassment policy prohibited too wide a range of activities, noting that the use of words such as "'hostile,’ ‘offensive,’ and ‘gender-motivated’" were so broad and subjective that they could be applied to just about any speech that is "gender motivated" and that someone finds offensive. 

At the democratic debate held last night at Philadelphia's own Constitution Center, Senator Barack Obama was asked why he did not wear an American flag pin in his lapel. While that may be an appropriate question for a presidential candidate, what happens if the issue sparks a political debate around the water cooler?

Can work and politics mix?

Probably not. That’s not to say that talking politics at work is unlawful--it’s just not a good idea. Politics bring strong emotions that may have no place in the office. Political debates can be loud, distracting, and offensive to colleagues. Let’s face it, if you can’t talk about who you’re going to vote for at a dinner party with friends without stirring the pot, you should definitely think twice about doing it at work.

In fact, an employee’s political actions at work can have harsh consequences. Employees should keep in mind that they could be disciplined – even terminated – for promoting their political views in the workplace.

The bottom line is that private employers have a lot of latitude when it comes to what an employee can and cannot say at work; private-sector employees essentially have no constitutional free-speech rights in the workplace.

This is not to say that employers have free reign to control their employee’s viewpoints, or to force their own viewpoints upon employees. For example, a Tennessee state statute makes it unlawful for an employer to require an employee to vote a certain way to keep their employment or to threaten an employee with disciplinary action if he does not vote for a certain candidate or party. Notwithstanding Tennessee’s unique law, an employer who discriminates against an employee for his political views can be subject to legal liability.

So what’s the bottom line? Employees and employers need to be sensitive this election season. Calling employees together to watch the speech of one candidate shouldn’t happen. Taking adverse actions against an employee because he expresses his view in favor of a candidate is certainly ill-advised. And management should not send out a memo or an e-mail in support of a political candidate. In short, pause before you ask your colleague where his flag pin is.