Social Media & Employee Discipline: Avoiding the Common Pitfalls

NYSUT
- A Union of Professionals

Local & Retiree Council Presidents Conference April 10-11, 2013

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Privacy Rights and the Employers Computer

My employer assigned me this computer, so

whatever I do on it is private and he cant access it. True or False?

Electronic Communications Privacy Act (ECPA)

Prohibits interception of electronic communications But Has exception for communications on employers equipment, if there is notice of policy
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Employers Computer, cont

Fourth Amendment protects from unreasonable search and seizure, but:

Public employers may search employer-provided devices unless there is reasonable expectation of privacy.

Public employers can conduct a search if purpose is to investigate potential work related misconduct and search is reasonable in scope.
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Employers Computer, cont

Typical District Internet and Computer Policy

Employees will be issued an e-mail account through the districts computer network. Employees are expected to review their e-mail daily. Communications with parents and/or students should be saved and the district will archive the e-mail records according to procedures developed by the computer network coordinator. Employees may access the internet for education-related and/or work-related activities. Employees shall refrain from using computer resources for personal use.

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Employers Computer, cont

Employees are advised that they must not have an expectation of privacy in the use of the districts computers. Use of computer resources in ways that violate the acceptable use and conduct regulation, will be subject to discipline.
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Employers Computer, cont

FOIL of Union E-mails on Employers Computer System

E-mails are records of an agency subject to Freedom of Information Law disclosure Possibly relevant exemptions: Unwarranted invasion of personal privacy Intra-agency or deliberative material Disclosure would impair present or imminent bargaining

Employer not required to assert exemption

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Can You Say Whatever You Want on Facebook or Your Blog?

General Rule (Including SRPs and higher education):

Off Duty Conduct

Can be disciplined if the conduct . . .

Harms the employers mission Adversely affects the employees ability to perform the job; or Leads other employees to refuse to work with the offender.
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Facebook or Your Blog, cont.

Off Duty Conduct
Rule for K-12 Certificated Educators: Can be disciplined if the conduct . . .
Directly affects job performance, or If, without contribution on the part of the employer, the conduct has become the subject of notoriety impairing the employees ability to perform the jobs responsibilities.

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Facebook or Your Blog, cont.

The First Amendment Provides Protection From Discipline In Certain Circumstances:
Speech must involve a matter of public concern

Speaker suffers an adverse employment action

Speech must be a motivating factor in employers action

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Facebook or Your Blog, cont.

Employer can avoid liability if speech was likely to disrupt the employers activities, the employers interest in avoiding disruption outweighed the value of the speech, and the adverse action was motivated by the potential disruption as opposed to the speech itself.
Garcetti exception Employer avoids liability where the speech was made pursuant to the employees official duties.
Real Life Examples
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Facebook or Your Blog, cont.

Non-Fraternization policies may be enforceable via disciplinary action. No constitutional right to social association.
May be invalid if overly vague, infringes on associational rights, or punishes recreational activities.
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Facebook or Your Blog, cont.

HYPOTHETICAL:

A former student asks you to friend him on Facebook. Should you?

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Student Cell Phones in the Classroom Its Time for Your Extreme (You-Tube) Close-up Real Life Examples
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Student Cell Phones, cont.

Code of Conduct - Example

Students can be disciplined for misusing computer/electronic communications, and display or use of personal electronic devices . . . in a manner that is in violation of district policy. Students can be disciplined for harassment which includes inappropriate acts using technology.
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Student Cell Phones, cont.

Contract Language - Example
Video and/or audio equipment shall not be used in the monitoring or observation of the work performance of any bargaining unit member including but not limited to evaluation and discipline.
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Student Cell Phones Hypothetical

As a bus monitor, you want to help the students in any way possible. One morning, while on the bus, Damon asks to use your personal cell phone to call his mother and ask her to bring his PE clothes to school. He says he will fail the course if he cant call his mom. What should you do?
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Should I Let My Longtime Babysitter Use My Home Computer?

Real Life Example IP Spoofing Internet Impersonation Crime N.Y. Penal Law 190.25: It is a Class A Misdemeanor for a person to impersonate another by communication by internet website or electronic means with intent to obtain a benefit or injure or defraud another.
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Common Pitfalls When Using Technology - Review

Using school computer for personal matters. Using school e-mail for personal matters or in an inappropriate manner. Texting/emailing students inappropriately. Inappropriate photos or posts on Facebook, Instagram, Twitter, social media blogs, etc. Letting students use your computer and other devices.
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