At Work: Solutions for Employers & Employees

The use of social media and its impact on the employment field is an issue that is being decided by courts and agency boards all over the country. Our Appellate Division recently spoke on the issue in the context of a teacher who was dismissed from her position for making statements about her students on Facebook. While the holding of this case is limited to the circumstances raised by the matter, mainly the fact that it was a public school employee who made the statements, the result could be expanded outside of the public sector realm. Employers should be aware of this decision in keeping up with relevant law relating to social media use by employees.
The Appellate Division was faced with the issue of whether the termination of appellant was appropriate based on two statements that she posted on her Facebook page in In the Matter of the Tenure Hearing of Jennifer O’Brien, State Operated School District of the City of Paterson, Passaic County. There, appellant teacher was employed by the school district since 1998 and was serving as a first grade teacher. During the school year appellant posted two statements on Facebook commenting on her classroom:
1. “I’m not a teacher- I’m a warden for future criminals!” and
2. “They had a scared straight program in school- why couldn’t i bring first graders?”

The comments sparked immediate community outrage. After the school learned of the posts appellant was suspended from her position for conduct unbecoming a teacher. The appellant contested her suspension and the matter was heard before an administrative law judge. The administrative law judge rejected appellant’s contention that her comments were protected by the First Amendment and found that the evidence supported the school district’s decision to charge her with conduct unbecoming a teacher. Based on the evidence before the administrative law judge, the judge concluded that removal was warranted and appellant was removed from her tenured position.

The appellant appealed her removal to the Appellate Division arguing that her Facebook postings were protected by the First Amendment and therefore she could not be disciplined for having posted the statements. The Appellate Division disagreed. Conducting a balancing between appellant’s interest as a citizen in commenting upon matters of public concern and the school district’s interest in promoting the efficiency of the public services it performs through its employees, the Appellate Division held that appellant’s interests were outweighed by the school district’s interest in the efficient operation of its schools.

The Appellate Division also held that there was sufficient evidence to support appellant’s removal for conduct unbecoming a tenured teacher because removal on that ground encompassed any conduct that has a tendency to destroy public respect for government employees and confidence in the operation of public services. There was no question that the appellant’s postings had a tendency to destroy public respect for the teachers and the school district. Accordingly, the Appellate Division upheld the removal of appellant based on her Facebook posts.

This decision is consistent with recent decisions from the National Labor Relations Board reviewing social media issues under the National Labor Relations Act. The National Labor Relations Board has found certain social media posts to be covered “concerted activity” where it was engaged in between employees or on the authority of other employees. However, when the conduct is, generally speaking, solely for the benefit of the employee, the National Labor Relations Board has not found the conduct to qualify as protected “concerted activity.” Here, appellant’s posts were not for the general benefit of employees but rather were for her own benefit. As a result it is likely that faced with the same facts the National Labor Relations Board would have reached the same result as our Appellate Division.

We at Hill Wallack stand ready to assist you with your social media policies and enforcement of such policies.