MHRP MEETINGTHURSDAY, OCTOBER 9, 2014

Facebook, Twitter, and Their Friends:Managing Employee Issues in the Era of Social Media

Presenter:

Kevin T. Sutton

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We used to think we had a pretty good grasp on this stuff …

But “Social Media” is so much more than most people think …

Social Media Permeates … Everything

Always On Accessible on mobile devices Live tweeting Interactive television

Universal Everyone wants to “connect” “Grandma joined Facebook!” iPhone 6 … 10 million orders

Consequences Example – game attendance Deterioration of soft skills “If you can’t say something

nice, ….”

Student Issues Abound

Sampling of recent headlines … Lawsuit alleges Mississippi district

expelled him for online posting of nude photo of classmate

New Jersey district settles lawsuit with student disciplined for profane off-campus tweet about principal

Parents file claim against San Diego district after cyberbullying incident led to student’s suicide

Father of bullied student who committed suicide sues Illinois district and producers of anti-bullying video

Oregon district settles student’s lawsuit over high school dance team’s social media policy

Former student sues Minnesota district after “sarcastic” tweet leads to seven-week suspension

… from the past 5 months

Employee/Staff Issues

Problematic, Though Generally Less Pervasive Intentional v. Unintentional Recent examples

Clear Expectations Acceptable Use Policies Digital Communications & Social Media Policies

Guidance Often Ignored “I won’t be the one …” “Everyone else has it …” “No one will ever see my posts …”

Consequences, Be Damned! Freedom of speech/privacy advocates

Generational Issues?

Central Question:

What are the standards that govern employee conduct?

Challenges

Uncertainty in Law Lack of cohesion from state to state Lack of consistency from court to court Balance of private rights v. obligation to community Blurred lines (public v. private)

Why? Law moves slowly Social media outlets emerge too fast Example: Snapchat Districts forced to be reactive instead of proactive

What We Do Know:Internet Privacy Protection Act

Public Act 478 of 2012 Sec. 3. An employer shall not do any of the following:

(a) Request an employee or an applicant for employment to grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s or applicant’s personal internet account.

(b) Discharge, discipline, fail to hire, or otherwise penalize an employee or applicant for employment for failure to grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s or applicant’s personal internet account.

NOTE: Sec. 4 provides similar restrictions for educational institutions and students

What We Do Know:District AU and Other Policies Rule

Staff Activities on District Network Tougher standards Less wiggle room Easier to investigate Easier to discipline Recent examples

What We Do Know:Free Speech Has Its Limitations

Assumptions Don’t Match Reality

Speech of Public Employees is Closely Scrutinized Garcetti v. Ceballos (2006)

A public employee’s speech concerning his or her job duties was not entitled to First Amendment protection

Lane v. Franks (2014) A public employer may not retaliate

against a public employee for giving truthful testimony, under subpoena and under oath, where testifying in court is not part of the employee’s job

What We Think We Know

Relative to the World of Social Media …The Case of Anna Land

The “Jobbie Nooner Case” Middle school teacher, tenured “A simulated act of fellatio with a male mannequin” Photos posted to Internet Images spread like wildfire – community concerns, etc. Terminated by District Dismissal reversed by State Tenure Commission (Early

2009) STC decision affirmed by Michigan Court of Appeals

(May 2010)

What We Think We Know:Guiding Principles from Land

Adverse Effects Doctrine (Beebe)

Given the presumption of fitness engendered by tenure status, 'just and reasonable cause' can be shown only by significant evidence proving that a teacher is unfit to teach. Because the essential function of a teacher is the imparting of knowledge and of learning ability, the focus of this evidence must be the effect of the questioned activity on the teacher's students. Secondarily, the tenure revocation proceeding must determine how the teacher's activity affects other teachers and school staff.

[T]he likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating or aggravating circumstances, if any, surrounding the conduct, the praiseworthiness or blameworthiness of the motives resulting in the conduct, the likelihood of the recurrence of the questioned conduct, and the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers.

What We Think We Know:Guiding Principles from Land

Misconduct Needed Too Absent misconduct, consideration of negative

publicity surrounding a teacher's behavior would run afoul of the purpose of the Teachers' Tenure Act to protect the rights of competent teachers to teach. Thus, while we agree that it was unfortunate that students gained access to the photographs in this case, we expressly disavow any suggestion that negative publicity alone, absent a showing of underlying professional misconduct, can provide reasonable and just cause for discipline under the Teachers' Tenure Act.

What We Think We Know:Guiding Principles from Land

Adverse Effects + Misconduct =Grounds to Terminate

Specific to tenured teachersSpecific to offsite, electronic

communications, outside District network Not exactly the slam dunk we would hope for

Reason to Hope?

Might Land be an aberration?Things to consider …

Just Cause v. Arbitrary & Capricious Discharge/Discipline now a prohibited subject of

bargaining More favorable STC Overall tenor of discussion, increased knowledge about

online activitiesWould the outcome be different today?

Tough to predict Above items suggest yes, but case language a challenge

Illustrative Cases – Ex. 1

Federal judge dismisses “blogging” teacher’s First Amendment claim Teacher with a personal blog Negative blog posts about administration and

students Terminated; sued alleging First Amendment

harassment and retaliation Postings were “far from implicating larger discussions

of education reform, pedagogical methods, or specific school policies” and “mostly complained about the failure of her students to live up to her expectations”

Case dismissed

Illustrative Cases – Ex. 2

Federal suit charges district’s superintendent failed to end sexting by teacher Substitute teacher / nephew of Superintendent “Thousands” of graphic messages sent through text,

email, and chat to female students, all minors Superintendent, teacher, and Board member all aware No action taken against substitute teacher … at first After substitute arrested, District terminated him Federal civil rights lawsuit, alleging sexually hostile

educational environment

Illustrative Cases – Ex. 3

Geissler v. Independent School District #2154 Teacher seen viewing pornography on computer Investigation revealed 200,000 pornographic web site

visits in 15 months Use of District system Terminated; termination sustained - misconduct The frequency with which the claimant violated the

school district’s policies and the subject matter of the computer use was a serious violation of the standards of behavior the school district had the right to reasonably expect of the employee

Illustrative Cases – Ex. 4

Medina County Board of Education (Arbitration) Students added inappropriate programs (violent

games) to their computers Teacher responsible for supervision Written reprimand Discipline was not arbitrary and capricious Even if not an expert in computers, teacher should

have maintained a more watchful eye on student activities

Illustrative Cases – Ex. 5

ISD #284 No just cause to discharge teacher, even though he spent

inordinate amount of time on computer when he should have been concentrating on teaching students

Chart used by District to show time spent on web was exaggerated

Discipline not warranted under progressive disciplineMonterey County

No just cause to discharge employee who read and printed out co-worker’s email, even though email related to investigation of employee, where employee had permission to get on co-worker’s computer for anti-virus work

AUP did not provide that info on computers was private

Practical Guidance

Strong Policies All communication driven through District network All communication educational in nature only Dilemma – 21st Century Learning v. Inappropriate Actions

Prohibition on connecting with current students (encourage?) Twitter assignments/communication Training / Communication of Expectations is Paramount

Need for open dialogue with staff/EA

Investigation Take what comes to you Conversation with employee Case by Case on how hard to push

Practical Guidance

Social Media in Hiring Background Checks

What are you looking for?

Beware - Discrimination Issues

Remember IPPADiscipline/Discharge

Look for nexus between conduct and educational impact

Misconduct?

Questions?

Resources/Contact

www.LuskAlbertson.com

@LuskAlbertson

www.LuskAlbertson.com/mhrp

KSutton@LuskAlbertson.com

248-988-5695 - Direct

734-377-7400 - Cell