"Managing Employee Issues in the Era of Social Media"

1. MHRP MEETING THURSDAY, OCTOBER 9, 2014 Facebook, Twitter, and Their Friends: Managing Employee Issues in the Era of Social Media Presenter : Kevin T. Sutton Want to download this presentation? Do it now: www.luskalbertson.com/mhrp

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

3. But Social Media is so much more than most people think

4. 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 cant say something nice, .

5. 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 students suicide Father of bullied student who committed suicide sues Illinois district and producers of anti-bullying video Oregon district settles students lawsuit over high school dance teams social media policy Former student sues Minnesota district after sarcastic tweet leads to seven-week suspension from the past 5 months

6. 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 wont be the one Everyone else has it No one will ever see my posts Consequences, Be Damned! Freedom of speech/privacy advocates Generational Issues?

7. Central Question : What are the standards that govern employee conduct?

8. 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

9. 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 employees or applicants 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 employees or applicants personal internet account. NOTE : Sec. 4 provides similar restrictions for educational institutions and students

10. 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

11. What We Do Know: Free Speech Has Its Limitations Assumptions Dont Match Reality Speech of Public Employees is Closely Scrutinized Garcetti v. Ceballos (2006) A public employees 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 employees job

12. 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)

13. 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.

14. 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.

15. What We Think We Know: Guiding Principles from Land Adverse Effects + Misconduct = Grounds to Terminate Specific to tenured teachers Specific to offsite, electronic communications, outside District network Not exactly the slam dunk we would hope for

16. 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 activities Would the outcome be different today? Tough to predict Above items suggest yes, but case language a challenge

17. Illustrative Cases Ex. 1 Federal judge dismisses blogging teachers 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

18. Illustrative Cases Ex. 2 Federal suit charges districts 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

19. 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 districts 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

20. 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

21. 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 discipline Monterey County No just cause to discharge employee who read and printed out co-workers email, even though email related to investigation of employee, where employee had permission to get on co- workers computer for anti-virus work AUP did not provide that info on computers was private

22. Practical Guidance Strong Policies All communication driven through District network All communication educational in nature only Dilemma 21 st 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

23. Practical Guidance Social Media in Hiring Background Checks What are you looking for? Beware - Discrimination Issues Remember IPPA Discipline/Discharge Look for nexus between conduct and educational impact Misconduct?

24. Questions?

25. Resources/Contact www.LuskAlbertson.com @LuskAlbertson www.LuskAlbertson.com/mhrp KSutton@LuskAlbertson.com 248-988-5695 - Direct 734-377-7400 - Cell