As ESR has noted in numerous presentations on the use of social networking sites such as Facebook or MySpace for employment, this is an evolving area of law that is still waiting for lawsuits to wind their ways through courts resulting in published judicial opinions.
An opinion 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, this appears to be the first published decision that deals with the issue of utilizing a social networking page to deny a consumer an opportunity and may contain important lessons for employers.
In that case, a would be teacher named Stacy Snyder sued administrators from Millersville University alleging that the school violated her freedom of speech by looking at her MySpace page, with the eventual result that Snyder did not receive an educational degree needed for a teaching certificate in Pennsylvania.
Snyder was engaged in a required student teaching program. The high school teacher assigned to her was Nicole Reinking. Even before the MySpace page became an issue, Reinking 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, Reinking, 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.
Because the case largely focuses on issues having to do with degree granting requirements for teachers in Pennsylvania, as well as issues involving free speech 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, it 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 webpages 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 told not to.
The bottom-line for employers: Where such sites are used for pre-employment in the selection process, employers may gain significant advantage in a lawsuit by making it abundantly clear on their web site, job posting 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.
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. Advance notice by an employer, or even consent, does not mean necessarily that employers that resort to exceptional means to penetrate a social networking site, such as the use of pre-texting, are protected. There is still a privacy issue to be resolved on the use of social networking sites. Nor is advanced notice a defense to discrimination.
For existing employees, an employer is well advised to ensure that they have clear written polices concerning personal online use, such as social networking sites, blogs, personal web pages, business connection sites, chartrooms and other sites. See www.ESRcheck.com for more information.