A New York court overturns the termination of a public school teacher for posting offensive comments on social media – Rubino v. City of New York, 106 A.D.3d 439 (May 7, 2013)
The New York Supreme Court, Appellate Division recently ruled that the firing of a fifth-grade public school teacher for making inappropriate comments on social media was too harsh of a penalty. After a difficult day at class, the teacher posted comments alluding to a tragedy involving an unknown student at a different school. The court’s opinion is sparse on details, but according to a Huffington Post article, the teacher wrote: “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS!” The beach reference alluded to the drowning of a 12-year old girl on a school trip to Long Island beach the day before. The comments were only visible to the teacher’s private network of friends, who did not include any of her students or their parents. The teacher deleted the comments three days after posting them. She denied making the comments when she was initially confronted about them, but later confessed at her disciplinary hearing.
The court agreed that the comments were “clearly inappropriate” but it noted that the purpose of the comments was just to vent. The teacher did not intend the public to see her comments, and she expressed remorse over making them. She had no prior disciplinary history in her 15-year career. Given the record, the appellate court found the termination to be “shocking to one’s sense of fairness.” The appellate court upheld a lower court order setting aside the termination and sending the case back down for imposition of a lesser penalty.
LegalTXTS Lesson: Not all courts have been as kind toward teachers who vent on social media as the New York Appellate Division. In fact, in In re O’Brien, a court in neighboring New Jersey upheld the firing of a first-grade teacher under similar circumstances earlier this year. One difference might be that the teacher in Rubino expressed remorse for making the comments whereas the teacher in O’Brien did not. Whether that factor alone accounts for the different outcomes is questionable. One thing the cases do share in common is that the teachers in both thought that no one outside of their network of “friends” would see their comments. With apologies to Las Vegas, Rubino and O’Brien teach that what happens in an employee’s social network doesn’t always stay in his or her social network.
Employers who discipline employees for their social media activity could unwittingly violate protections under the National Labor Relations Act (NLRA) for employees who engage in “protected concerted activity.” An employee engages in protected concerted activity when acting together with other employees, or acting alone with the authority of other employees, for the mutual aid or protection of co-workers regarding terms and conditions of employment. Since social networks by nature connect people, online gripes about work—which could be read by co-workers of the author within the same social network—could constitute protected concerted activity. Three recent National Labor Relations Board (NLRB) decisions highlight this risk.
In Hispanics United of Buffalo, Inc., 359 NRLB No. 37 (Dec. 14, 2012), an employee at a domestic violence relief organization posted on Facebook about a co-worker (Cruz-Moore) who threatened to complain about the work habits of other employees to the executive director of the organization. The employee wrote: “Lydia Cruz, a coworker feels that we don’t help our clients enough . . . . I about had it! My fellow coworkers how do u feel?” Four off-duty employees responded to this post with disagreement over Cruz-Moore’s alleged criticisms. Cruz-Moore saw these posts, responded to them, and brought them to the attention of the executive director. The employee who authored the original post and the employees who responded were fired. Two NLRB members of a three-person panel found the termination to be a violation of Section 8(a)(1) of the National Labor Relations Act (NLRA). The NLRB found the posts to be “concerted” because they had the “clear ‘mutual aid’ objective for preparing coworkers for a group defense to [Cruz-Moore’s] complaints.” The NLRB also considered the posts “protected” because they related to job performance matters.
In Pier Sixty, LLC, 2013 WL 1702462 (NLRB Div. of Judges Apr. 18, 2013), the service staff of a catering company were in the process of taking a vote on union representation when a staff member (Perez) got upset by what he perceived as harassment by his manager. During a break, Perez went to the bathroom and posted on Facebook: “Bob is such a NASTY M***** F****R don’t know how to talk to people!!!!! F**k his mother and his entire f*****g family!!!! What a LOSER!!!! Vote YES for the UNION.” Various co-workers responded to the post. The company fired Perez after learning about the post. An administrative law judge of the NLRB held that the employer violated Section 8(a)(1) of the NLRA. The judge found the post to constitute “protected activity” because it was part of an ongoing sequence of events involving employee attempts to protest and remedy what they saw as rude and demeaning treatment by their managers. The post was also “concerted” because it was activity undertaken on behalf of a union.
In Design Technology Group, LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (Apr. 19, 2013), employees of a clothing store repeatedly but unsuccessfully attempted to persuade their employer to close the store earlier so that they wouldn’t have to walk through an unsafe neighborhood at night. The employees posted Facebook messages lamenting the denial of their request and criticizing their manager. In one message, an employee said she would bring in a book on workers’ rights to shed light on their employer’s labor law violations. Another employee saw the messages and sent them to the HR director, who in turn forwarded them to the store owner. The owner fired the employees who posted the messages, allegedly for insubordination. A NLRB administrative law judge found the terminations unlawful because the messages were a continuation of an effort to address concerns about work safety (i.e., leaving work late at night in an unsafe neighborhood) and thus constituted protected concerted activity.
LegalTXTS Lesson: What should employers learn from these decisions? To avoid violating Section 8(a)(1) of the NLRA, employers might consider the following before disciplining employees based on their social media activity:
- Check whether the employee’s post attracted or solicited a response from co-workers. The interactive nature of social networking means that communications via social media are often “concerted.”
- Calls for co-workers to take action likely constitute “protected” activity.
- Complaints about work or co-workers—even if vulgar—can be considered “protected” activity.
- Messages posted outside of the workplace or work hours can still be considered protected concerted activity.
- Be especially sensitive to messages that reference collective bargaining activity or labor requirements. Those are red flags indicating the need to exercise caution.
- Often, social media is not the initial venue for airing work-related complaints. Investigate whether the complaints voiced online were previously brought to the attention of the employer. If they were, the online messages are more likely to be found to be part of a series of protected activity.
Check out the article on Internet firings posted on HR Hero’s “Technology for HR” blog. The article talks about the firing of the Applebee’s waitress who snapped a picture of a receipt on which the customer, a pastor, wrote: “I give God 10% Why do you get 18?” and posted it on Reddit. I was happy to provide commentary for the article on Applebee’s social media policy and suggest tips for employers dealing with embarrassing Internet activity of employees like the Applebee’s incident.
NLRB Strikes Down Restrictions on Employee Communications on Social Media and Elsewhere — DirectTV U.S. DirecTV Holdings, LLC, 359 NLRB 54 (Jan. 25, 2013)
On the same day that the D.C. Circuit Court of Appeals ruled that President Obama’s recess appointments to the National Labor Relations Board (NLRB) were unconstitutional, the NLRB struck down several of DirectTV’s work rules, including one relating to social media use. The ruling comes as little surprise, as it mirrors the positions and rationale stated in previous Guidance Memoranda issued by the NLRB’s Office of General Counsel. Of course, this decision carries more weight because it’s issued by the Board itself (but query the ruling’s validity in light of the D.C. Circuit decision).
Restrictions on employee communication with the media
The first two rules instructed employees to “not contact the media,” and “not contact or comment to any media about the company unless pre-authorized by Public Relations.” Section 7 of the National Labor Relations Act (NLRA) protects employee communications with the media concerning labor disputes. The broad and unequivocal language of the rules could lead an employee to believe that such protected activity is not permitted under the rules, which is unlawful, the NLRB. The rules did not distinguish between protected and unprotected communications (e.g., maliciously false statements).
Restrictions on employee communication with NRLB agents
The next rule in question stated: “If law enforcement wants to interview or obtain information regarding a DIRECTV employee, whether in person or by telephone/email, the employee should contact the security department . . . who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.” The NLRB found that this rule would make employees think that they must go through their employer before cooperating with an NLRB investigation, as NLRB agents could reasonably be considered “law enforcement” as far as labor matters are concerned. This violates Section 8(a)(4) of the NLRA, which protects employees who file unfair labor practice charges or who provide information in the course of an NLRB investigation. While an employer could have a legitimate interest in knowing about attempts by law enforcement agents to interview employees, the rule failed to separate out those situations from those in which the Section 8(a)(4) protections apply.
DirecTV instructed employees to “[n]ever discuss details about your job, company business or work projects with anyone outside the company” and to “[n]ever give out information about customers or DIRECTV employees.” The rule identified “employee records” as one of the categories of “company information” that must be kept confidential. The NLRB struck down these rules because employees could reasonably understand them to restrict discussion of their wages and other terms of conditions of employment. The rule was also deficient in not exempting protected communications with third parties such as union representatives, NLRB agents, or other governmental agencies concerned with workplace matters.
Online Disclosures of “Company Information”
DirecTV posted a corporate policy on its intranet stating: “Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.” In addition to the policies on the intranet, DirecTV issued a handbook with overlapping sets of rules governing employee conduct and effectively directed employees to read them as one. The handbook contains a confidentiality rule that defines “company information” as including “employee records.” Reading the two policies together, an employee could understand the intranet policy to prohibit online disclosure of information concerning wages, discipline, and performance ratings.
LegalTXT Notes: This ruling isn’t groundbreaking, but it confirms that the Board agrees with the positions taken in the previous OGC Guidance Memoranda on social media policies. The D.C. Circuit does cast a pall over the validity of this ruling, although the NLRB supported the ruling with multiple Board decisions that were issued well before the recess appointments were made.
No First Amendment Protection for public school teacher’s comments on Facebook — In re O’Brien, 2013 WL 132508 (N.J. Super. App. Div. Jan 11, 2013)
We’ve seen a number of cases in which employees are fired for making comments on Facebook that they never thought would get around. (For a sampling, see my posts on Sutton v. Bailey, the BMW dealership decision, and Sumien v. Careflite.) Put In re O’Brien in this category of cases, except add a twist: Here, the employer is a public school district. Does the First Amendment (which applies only to government action) add a layer of protection to comments posted by a public employee on social media? Not in this case.
Jennifer O’Brien was a first-grade schoolteacher. O’Brien posted two statements on Facebook:
I’m not a teacher—I’m a warden for future criminals!
And the second:
They had a scared straight program in school—why couldn’t [I] bring [first] graders?
The Facebook comments were brought to the attention of the principal at O’Brien’s school (Ortiz). Ortiz was “appalled” by the statements. O’Brien’s Facebook comments also spread quickly throughout the school district, causing a well-publicized uproar.
The school district charged O’Brien with conduct unbecoming of a teacher. An administrative law judge (ALJ) found support for the charge and recommended O’Brien’s removal from her tenured position, and the acting commissioner of the school district agreed. The ALJ was particularly bothered by O’Brien’s lack of remorse in posting the comments. A New Jersey court adopted with the reasoning of the ALJ on appeal.
Both at the administrative level and on appeal, O’Brien argued that the First Amendment protected her Facebook statements. The court disagreed, applying the test stated in the Supreme Court’s decision in Pickering v. Board of Education that analyzes whether a public employee’s statements are protected by the First Amendment by balancing the employee’s interest, “as a citizen, in commenting on matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
The court accepted the findings of the ALJ and Commissioner that O’Brien’s real motivation for making the statements was her dissatisfaction with her job and the conduct of some of her students, not a desire to comment on “matters of public concern.” Even if the comments regarded a matter of public concern, O’Brien’s right to express those comments was outweighed by the school district’s interest in the efficient operation of its schools. The court also rejected O’Brien’s arguments that there was insufficient evidence to support the charge against her, and that removal was an inappropriate penalty.
LegalTXTS Lesson: Public employers need to exercise more caution when disciplining employees for their activity on social media networks. Unlike the private sector, public agencies are limited by the First Amendment when regulating expression of their employees. But even public employees don’t have absolute freedom to say whatever they want. As O’Brien reminds us, when public employees make comments of a personal nature, or their comments interfere with the delivery of government services, such expression is not protected by the First Amendment.