Social Media Searches
The Federal Case of Stacy the Drunken Pirate in the Age of MySpace and Facebook
As noted in a previous article I wrote on the use of social networking sites such as Facebook or MySpace for employment, recruiters and employees should exercise some caution before they simply assume that everything on the web is fair game. There are substantial issues yet to be resolved, such as the impact of information that may be discriminatory to use, privacy interests, protection of legal off-duty conduct, and authenticity and identity. This is an evolving area of law that is still waiting for lawsuits to wind their ways through courts resulting in published judicial opinions. A federal court opinion that appears to be the first published decision that deals with the issue of utilizing a social networking page to deny a consumer an opportunity was rendered by the United States District Court for the Eastern District of Pennsylvania on December 3, 2008. Although this decision involved issues surrounding the awarding of a degree and does not deal with private employers, the case may contain important lessons for employers and recruiters.
In that case, a would be teacher named Stacy Snyder sued administrators from Millersville University alleger that her freedom of speech was violated because material on her MySpace page was viewed, with the eventual result that Snyder was not able to complete a student teaching requirement and therefore did not receive an educational degree needed for a teaching certificate in Pennsylvania.
Snyder was engaged in a required student teaching program. She was assigned a high school teacher to supervise her. Even before the MySpace page became an issue, the supervisor had already been critical of Snyder’s abilities, and noted an ignorance of basic grammar, punctuation, spelling and usage, as well as inadequate classroom management, poor understanding of the subjects she attempted to teach, and her inappropriate manner with students.
The final straw was apparently the discovery by another teacher of Snyder's MySpace page, where according to Snyder's own testimony, she had on a pirate‘s hat, was holding a plastic cup containing a mixed drink that said, "drunken pirate," and had a "stupid expression" on her face while giving the peace sign. In addition, her page contained text that suggested her supervisor was the reason Snyder would not be applying for a job at that high school.
As a result, the superintendent of the high school suspended Snyder from the student teaching program and therefore she was not entitled to obtain a degree in education, and was instead awarded an English degree.
In ruling against Snyder, the federal court noted the school had no legal authority to award her a degree in education where she did not complete the required student teaching program. However, the Court went on to address the freedom of speech issue, ruling that as a teacher, Snyder only had first amendment rights as it related to public issues and not personal matters.
It is also important to note that prior to posing for her "Drunken Pirate" picture:
- Snyder was told during the orientation not to direct any students or teachers to a personal web page.
- Snyder admitted that she recalled being told not to post any information about her supervising teacher on her web page.
- A universality office had warned students that, in the past, a student was dismissed from the student teaching program for placing information about his supervisor on his personal web page.
- Her supervising teacher specifically warned her not to discuss her personal web page with her students.
Despite these warnings Snyder went ahead and told students about her web page and sought to communicate about personal matters with her students through her MySpace page. Her post also made what appeared to be a negative reference to her teaching supervisor. All of these three things were done despite very specific and repeated warnings and admonishment not to use Facebook in the way she did.
Because the case largely focused on issues having to do with degree granting requirements for teachers in Pennsylvania, as well as issues involving free speech rights of teachers and students in public institutions, the actual holding of the case is limited when it comes to private employers. In addition, since it was a federal district court case, and is not binding on other courts.
However, the case presents very interesting lessons in how a court may view claims by job applicants that their personal web pages were used unfairly. What stands out in this case is how clear the University was in telling students NOT to post information about their supervising teachers on a personal web page and to not direct students to a personal site. Despite these clear warnings from the university, she went ahead and did the very things she was repeatedly told not to do.
The bottom-line for employers: Where social networking sites are used for pre-employment in the selection process, employers may gain significant protection by making it abundantly clear on their web site, job posting, application or other places that a person’s public online identity may be viewed. By giving clear and conspicuous notice, an applicant would have a more difficult time claiming that they had a reasonable expectation of privacy on their social networking site. Advance notice by an employer, or even consent, does not mean necessarily that employers can resort to exceptional means to penetrate a social networking site, such as the use of pre-texting or fake web identities, nor is advanced notice a defense to discrimination.
Applicants can still, of course, maintain their own pages, and may well want to vent about a co-worker or supervisor. However, an applicant may choose to either be more circumspect, or to make sure that their privacy settings are such that an employer could not view such pages by causal web browsing. However, job applicants should also understand that once they are in the job market, a little discretion can go a long ways.
For existing employees, an employer is well advised to ensure that they have clear written policies concerning personal online use, such as social networking sites, blogs, personal web pages, business connection sites, chatrooms and other sites.
By Lester Rosen