use of social media is an ongoing problem across the country. Teachers are
given little, if any, guidance about what is and is not appropriate
online conduct. School
districts, in turn, are left to decide the rules on an ad hoc basis. And
uncertainty breeds disaster.
Cases of teacher
termination based on social-media commentary are some of the most
common in the employment-law world. Most of these cases have been decided in
favor of the school district, finding that the district was within its rights
when it fired
the teacher for her inappropriate online posts.
One case, though, came out in favor of the teacher. In
March, I reported about a ruling from the New York Supreme Court, which
overturned the decision of a disciplinary hearing officer. Before being
overturned, the hearing officer had upheld
the decision to terminate a teacher who had posted on her Facebook
page that she wished that her students "would drown," along with
other, equally distasteful comments.
Not surprisingly, the district appealed the decision of
the Supreme Court to the New York Appellate Division. The appellate court,
earlier this month, upheld the decision to set aside the termination. The order
by the appellate court is quite short--just two pages in length--but filled
with findings that should be of great concern for employers.
The court began its opinion by acknowledging that the
teacher's "comments were clearly inappropriate." But, the court went
on, it was "apparent" that the teacher's purpose in posting the
offensive comments was "to vent her frustration only to her online friends
after a difficult day with her own students."
The court went on to find that the teacher had, for this
purpose, a limited expectation of privacy in her Facebook posts because her
page was not public but could be viewed only by her Facebook friends.
"None of her students or their parents were part of her network of friends
and, thus, the comments were not published to them, nor to the public at
large," explained the court.
Moreover, the court gave the teacher bonus points because
she deleted the comments three days after posting them. The court acknowledges
that the teacher then proceeded to lie about having made the comments at the
disciplinary hearing several months later. The court excused this attempted
cover-up, though, because it was done "out of fear of losing her
The court also gave the teacher points because she
"acknowledged that [her comments] were inappropriate and offensive, and
repeatedly expressed remorse." Thus, the court concluded that, based on
the teacher's 15-year employment history, during which she had had no prior
disciplines, and her promise not to repeat the conduct, the Supreme Court had
properly determined that the penalty of termination was shocking to one's sense
Let's sum up what we've learned. If we follow the
appellate court's reasoning, we're left with at least three troubling holdings.
First, that a person has a reasonable expectation of privacy when posting
comments online, provided that the person's page is not publicly available.
This is directly contrary to the majority
of rulings in similar cases. Even in the discovery
context, the majority of courts have found the opposite--that there can be
no reasonable expectation of privacy when an individual posts something to the
Internet. And that makes sense, doesn't it? I mean, in this case, someone did report
the teacher's comments and the comments did become public. So
how reasonable could it have been for her to expect otherwise?
Second, since when is "just venting" a
legitimate defense? Does the fact that she had a bad day somehow mitigate
the harm that her comments may have caused? For example, did the students
and parents who learned about the comments and who lost faith in the
educational system as a result think less badly of the school
because the teacher was "just venting"? Doubtful.
And, third, employees who lie when they've been caught
engaging in terminable conduct can get out of jail free simply by saying they
lied only because they didn't want to get fired and by promising not to repeat
Really? Don't most employees try this when they get
busted for doing something sure to get them fired? If a teacher with an
otherwise unblemished employment history snorts cocaine in the bathroom during
recess and then lies about it, can she avoid termination simply by promising
not to do it again?
Or what about a teacher who is asked whether she
witnessed conduct constituting sexual harassment by a co-worker. If she lies
and says she didn't witness any inappropriate behavior, wouldn't the school be
justified in disciplining or terminating her? After all, she's exposed the
school to significant liability--not to mention her coworkers to potential
future harassment. If her lies are later discovered, can she save her job by
saying that she lied only because she didn't want to get fired and by promising
not to do it again?
This case has some significant implications if its
rulings are applied to other cases involving social media. I'll keep my fingers
crossed that it is not.
Rubino v. City of New York,
2013 NY Slip Op 03272 (N.Y. App. Div. May 7, 2013) [an enhanced version of this opinion is available to lexis.com
Read more Labor and Employment Law insights
from Margaret (Molly) DiBianca in the Delaware
Employment Law Blog.
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