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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.

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Recent amendments to the Hawaii Rules of Professional Conduct include language allowing lawyers to advertise on social media.  The amendments conform the language of Rules 7.2 and 7.3 to their counterparts in the current version of the ABA Model Rules of Professional Conduct.  Amended Rule 7.2(a) explicitly includes “electronic communication” as a permissible way to advertise legal services.  The comments to the amended Rule are more direct, noting that “electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule.”  Although the amended Rules don’t define “electronic communication,” the term appears broad enough to include social media.

The amendments place limits on soliciting clients on social media, however.  Rule 7.3 currently prohibits a lawyer from contacting potential clients in person or by telephone to solicit business for personal monetary gain unless the potential client has a family, close personal, or prior professional relationship with the lawyer.  Amended Rule 7.3 adds “real-time electronic contact” to the list of forbidden solicitation methods.  What “real-time electronic contact” means has yet to be examined in a reported case, but the term could conceivably apply to text messages, instant messages, Skype, and posts on social networks like Facebook, Twitter, or LinkedIn.

Tech-savvy lawyers will also appreciate the deletion of the requirement in current Rule 7.2(b) that a lawyer keep records of every advertisement for two years.  Lawyers who promote their services by posting online content frequently could find compliance with the requirement impractical.  The amended Rules omit the retention requirement for all forms of legal advertising.

The amended Rules take effect on January 1, 2014.

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Federal court dismisses claims against charter school for expelling student due to cyberbullying — Lindsey v. Matayoshi, 2013 WL 3092450 (D. Haw. June 19, 2013)

The federal district court of Hawaii recently dismissed a lawsuit against a charter school that expelled a student for cyberbullying.  The student and her parents claimed that the school denied them a property interest in a free public education in violation of their constitutional right to due process.  The court ruled that the damage claims against the school were barred by Eleventh Amendment immunity and that injunctive relief was unavailable because the school did not violate the constitutional rights of the student and her parents.

RFL was a student at Kanu, a charter school in the state of Hawaii.  On several occasions, RFL threatened, bullied, and teased other students through Facebook posts and text messages.  RFL also got involved in a fight with a classmate.  Kanu initially suspended RFL and reminded her of Kanu’s “no tolerance” policy toward bullying, but when RFL persisted in taunting and threatening classmates through social media, Kanu expelled her.

Kanu discussed several options with RFL’s parents for continuing her education, including nearby public high schools and home schooling, and offered to assist in transitioning RFL to the school of her parents’ choice.  RFL’s parents declined to enroll RFL in any of the public high schools offered to them as alternatives.  Instead, RFL and her parents sued Kanu, the superintendent of the state department of education, and various school officials.  The plaintiffs sought damages and injunctive relief for the deprivation of their due process rights, emotional distress, and a violation of state administrative laws.

The court ruled that the Eleventh Amendment barred the plaintiffs from seeking monetary damages claims from Kanu, a state entity, and the other defendants, who were state officials sued in their official capacity.  As for injunctive relief claim for an order requiring Kanu to re-enroll RFL, the court found that the defendants had not deprived the plaintiffs of a constitutionally-protected property interest in public education.  Kanu offered alternative schooling options to the plaintiffs, but they rejected them all because they did not like the schools that were available to them.  The court held that an entitlement to public education did not include the right to attend a particular school or to a particular kind of education or curriculum.

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Employer sues ex-employee for not updating his LinkedIn profile — Jefferson Audio Visual Systems, Inc. v. Light, 2013 WL 1947625 (W.D. Ky. May 9, 2013).

What would you do if your ex-employee told everybody he still works for you?  One company’s response was to sue.  In the first case of its kind, the company decided to sue its former employee for fraud for not updating his LinkedIn profile.

Jefferson Audio Visual Systems, Inc. (JAVS) fired its sales director, Gunnar Light, after he mishandled a potentially lucrative deal and made defamatory statements about JAVS to a prospective customer.  Shortly afterwards, JAVS filed a lawsuit against Light alleging various claims, including fraud.  JAVS argued that Light was fraudulent in failing to update his LinkedIn profile to reflect that he was no longer a JAVS employee.  A Kentucky federal court dismissed the fraud claim because JAVS failed to show that it was defrauded by Light’s LinkedIn profile.  At most, JAVS alleged that the profile tricked others.  Under Kentucky law, a party claiming fraud must itself have relied on the fraudulent statements.

LegalTXTS Lesson: JAVS’ actions against its ex-employee might have been rather extreme, but the case is a reminder that ex-employees can leave behind an electronic wake that is damaging.  Because computer technology is an integral part of work life, management needs to be intentional in disengaging ex-employees from the electronic systems and online persona of the organization.  Each organization must determine for itself what measures for dealing with such post-termination issues are feasible, effective, and consistent with its objectives, but here are some suggestions:

1.  Promptly update the organization’s website, social media profiles, and any other official online presence to reflect that the former employee no longer works for the organization.

2.  Specify who owns Internet accounts handled by the ex-employee for the organization’s  benefit and the information stored in the accounts.  This includes social media accounts and cloud storage accounts (e.g., DropBox, Google Drive, SkyDrive) to the extent they contain proprietary data.  As part of this measure, be sure to obtain the information needed to access the accounts, including any updates to login credentials.

3.  Restrict the amount of access to which former employees, as well as current employees whose departure is imminent, have to workstations, databases, and networks of the organization.  Limiting access helps to prevent theft of trade secrets and proprietary information.  Many CFAA lawsuits have been spawned by a failure to take this precaution.

4.  Check if the employee left behind anything that would enable him or her to gain unauthorized access to company systems, like malware, viruses, or “back doors.”

5.  Enable systems that allow of erasure of the organization’s data from electronic devices used by the ex-employee to remotely access the work network, such as smartphones, laptops, and tablet computers.

6.  Establish guidelines on employee use of the company’s intellectual property on personal internet profiles (e.g., Facebook, Twitter, LinkedIn), including trademarks and trade names.
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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.
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