Of course she does.
What does the Complaint say? And what can employers take away from it? Find out after the jump…
In her Complaint (copy here), the (former) school-bus driver claims that, after her shift ended, she privately messaged a student — someone who never rode her bus — on Facebook. This student was supposedly giving her son a hard time at school. A dialogue ensued and the driver ultimately Facebook messaged the bully:
YOU LITTLE BITCH, what are you going to do when Stephen dumps your ass after you have the baby like he did his other girlfriend.
The school learned of this online exchange, and the driver was fired.
The driver subsequently sued in federal court claiming that her termination for “off-the-clock” Facebook messaging a student who didn’t ride her bus violated her freedom-of-speech rights under the First Amendment, equal protection and due process rights under the Fourteenth Amendment, as well as similar rights under the State Constitution of the Commonwealth of Kentucky.
What HR should take away from this case?
I’m no Constitutional lawyer. I leave that to the other brainiacs at my law firm. Instead, let’s pretend for a second that the school-bus driver worked in the private sector. Could she get away with her actions if (1) the messages happened off-the-clock; and (2) the employer had no social-media policy?
- Social media has watered down off-duty-conduct laws. Many laws have states preventing employers from disciplining employees for legal behavior engaged in off-the-clock. For example, in California, no employee may be disciplined for lawful conduct occurring during nonworking hours away from the employer’s premises. Kentucky makes it unlawful for an employer to discriminate against an employee with under 2.5 moonshine stills because the individual is a smoker or nonsmoker. But, even if Kentucky’s off-duty-conduct laws were as rigid as California’s, it is inevitable that in today’s wired-age, where all of us are a smartphone away from instant access to Facebook, Twitter, and anything else social media, that off-the-clock behavior will bleed into the workplace. See, for example, this California case affirming employer liability for off-duty harassment via a blog. Therefore, employees who believe that their actions online — as long as they take place outside the office — will not affect their job status have another thing coming.
- The absence of a social-media policy generally won’t protect an employee whose online behavior negatively impacts the workplace. Let’s pretend that your company just shredded its anti-harassment policy. Could your employee light a burning cross in the file room and still keep his job? No. Policy or not, that behavior is never tolerated. We all know that.Remember why we have policies: to educate and inform. Policies apprise employees of the rules at work and show them how to keep their noses clean. Many no-no’s are obvious, but others may not be. So, we have anti-harassment policies to let our workforce know what is expected of them and how to avoid the behaviors that could otherwise get them into trouble. This is precisely why I recommend a social-media policy. Whether you want to promote employee use of social media or poke a hole in that balloon, a social-media policy (paired with training) is the vehicle to inform and educate your workforce.
But, much in the same way that the absence of an anti-harassment policy won’t protect a workplace jerk, not having a social-media policy generally won’t either. Hopefully, a policy will eliminate some of these headaches. But, without a policy, you can still take action to make your workplace jerk-free.