Regular readers of this blog have followed our coverage of the National Labor Relations Board’s efforts to expand the protections afforded to employee use of social media. Following the Acting General Counsel’s recent issuance of a second report on social media cases, many of our co-contributors to “Think Before You Click: Strategies for Managing Social Media in the Workplace” weighed in, expressing various degrees of concern about the scope of that expansion. There seems to be consensus, however, that the Board has been more inclined to protect employee social media posts — even if they disparage or impugn the employer and/or its operations.
Well, perhaps observers hadn’t actually seen anything yet…
In a February 1, 2012 decision, a New York state court judge ordered reinstatement of a teacher who had posted Facebook messages wishing that her fifth grade students — "the devils spawn" — would drown. On June 22, 2010, a New York City public school student from a different school fatally drowned during a field trip to the beach. The next day, from home, the teacher in question posted on her Facebook page: "After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!" After one of her Facebook friends declared: "oh you would let little Kwame float away!" she responded: "Yes, I wld (sic) not throw a life jacket in for a million!!"
Following a complaint about the Facebook postings, a Special Commissioner conducted an investigation — during which the teacher also was found to orchestrated an alibi, convincing a friend to lie and take responsibility for the postings. The Department of Education sought her termination, which a hearing officer upheld following twelve days of hearing. The teacher commenced litigation pursuant to N.Y. C.P.L.R. Article 78, asserting that the agency’s determination was "without sound basis in reason and . . . without regard to the facts." While the Court found the determination was not "arbitrary and capricious" under the applicable standards, it nevertheless held that petitioner’s termination was "so disproportionate to her offense as to shock one’s sense of fairness."
While public sector employers may have long ago accepted the substantially higher standards to which they will be held by tribunals, some of the judge’s reasoning could well find its way into broader application as the National Labor Relations Board and reviewing courts address these issues further. Even private employers and practitioners ought to consider how to address the issues questioned in this decision. One particular passage of note reads:
Indeed, with Facebook, as with social media in general, one may express oneself as freely and rapidly as when conversing on the telephone with a friend. Thus, even 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. While her reference to a child’s death is repulsive, there is no evidence that her postings are part of a pattern of conduct or anything other than an isolated incident of intemperance.
The City recently vowed to appeal the decision, and keep the teacher out of the classroom pending further proceedings.