August 2009 - Employee Use of Social Networking Sites

DUFF, WHITE & TURNER, L.L.C.
Attorneys And Counselors At Law

EMPLOYEE USE OF SOCIAL NETWORKING SITES

As the popularity of social networking sites and other online communication technology continues to grow, so does their use by school district employees. While communication through such sites as Facebook, MySpace and Twitter may provide opportunities to boost parental involvement and benefit classroom instruction, there also are increased risks for inappropriate use by district employees. It is important for school districts to clearly communicate to employees that use of online communication technology may not be totally private and secure, and in some cases could be considered grounds for disciplinary action, including termination, even if the use is on personal time, through privately owned equipment.

Last year, the social networking sites of several teachers in Charlotte, North Carolina, were accessed, resulting in public dissemination of statements like “I hate my students,” and “I teach at the most ghetto school in Charlotte.” The sites also included photographs of several teachers posing in a provocative manner. To avoid this undesirable scenario, districts should encourage employees to utilize the privacy settings available to them on these sites, as well as to routinely confirm that those settings remain updated. Even if privacy settings are used, however, the employee may still be expected to conform to the district’s expectations for appropriate and professional communications. Districts should have policies in place related to use of online communication technology which discourage:

• derogatory comments related to students or staff;
• crude comments or references to sexual activity;
• photographs of nudity or near nudity;
• photographs of or references to excessive alcohol use or inebriation;
• photographs of provocative poses or sexual activity; and
• potentially offensive commentary (i.e. race, disability, sexual orientation).

Inappropriate online conduct, however, is not limited to pictures or comments. District employees who wish to share their daily work activities with family and friends by posting classwork or pictures of student activities risk violating student privacy rights under district policy and the Family Educational Rights and Privacy Act (FERPA). District policy should clarify what information and/or documents may not be disclosed without parental permission. Additionally, district policy should discourage employees from “friending” or “following” specific students on social networking sites. As a general rule, employees should only engage in electronic communication with a particular student in the same manner they would communicate with all students. Employees should avoid even the appearance of excessive, overly personal, and/or other inappropriate communications with students.

If offensive or inappropriate online conduct is discovered, school and district administrators should immediately make copies of all relevant postings. Employees may block or cancel sites or postings once they learn the district is aware, thus limiting access to evidence that may be needed to support the administration’s decision to take action. Administrators also should fully investigate the authenticity of the site or posting, as well as any explanations offered by the employee. Issues to resolve may include a determination of who is responsible for the posting and who has access to and/or maintains the site.

Before determining whether an employee’s online conduct warrants corrective or disciplinary action, districts should determine if the site or postings have impacted, or could potentially impact, the employee’s ability to effectively perform his or her job duties, and/or whether the site or postings have disrupted, or could disrupt, the educational environment. There has been very little litigation around the country on this issue. In one case, however, a court upheld the termination of a teacher based on his postings on MySpace. The court concluded that “it is reasonable for the school to expect . . . a teacher with supervisory authority over students to maintain a professional, respectful association with those students. This does not mean that [he] could not be friendly or humorous; however . . . it appears that [teacher] would communicate with students as if he were their peer, not their teacher. Such conduct could very well disrupt the learning atmosphere of a school.”

Districts also must determine whether online communication postings have criminal implications or trigger any mandatory reporting obligations. If so, district administration should immediately contact the appropriate law enforcement authorities and fully cooperate with any resulting investigation.

If you need assistance with review or development of district policies and procedures on employee use of social networking sites, or if you have any questions about action to be taken as a result of such use, please feel free to contact this firm.