ANALYSIS OLD LAWS, NEW APPS WRITTEN BY PEGGY A. BURNS, ESQ.
THE ROLE OF TECHNOLOGY IN EMPLOYMENT DECISIONS ABOUT EMPLOYEE SPEECH
meaning to the “water cooler” conversations of the past. School transportation employees may take issue with a district’s safety procedures, terms and benefits of employment, and even the behavior of supervisors, parents, or students . . . and that’s just a run-down of typical complaints. What if the school district objects to being called out on Facebook or LinkedIn, and decides to take action against the employee? Tis happened in May, when a Georgia school
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bus driver, Johnny Cook, used Facebook to rant about how the school district allegedly treated one of his riders. A boy had complained on the bus that he was hungry, and alleged he had been refused a school lunch because he didn’t have enough money in his lunchroom account.
Speech by public employees is likely protected under the First Amendment if its subject is a matter of public concern and if the employee’s right to speak is more important than its impact on district or educational operations in a given case. But there’s still more to consider.
As reported to STN, Cook’s post stated, “What!
Tis child is already on reduced lunch and we can’t let him eat. Are you kidding me? I’m certain (sic) there was leftover food thrown away today. But kids were turned away because they didn’t have ($0.40) on there (sic) account. As a taxpayer, I would much rather feed a kid for forty cent(s), please call me. We will scrape up the money. Tis is what the world has come to.” Te driver was fired for violating the Haralson
County Schools’ social media policy, which states: “Employees who post or contribute any comment or content on social networking sites that cause a substantial disruption to the instruction environ- ment are subject to disciplinary procedures up to and including termination.”
48 School Transportation News October 2013
n employee’s choice to gripe about the workplace to a sea of potential friends and strangers on a social media site virtually (pun intended) gives new
Following a pre-termination meeting, during
which the driver was reportedly given the oppor- tunity to apologize and post a statement that the original Facebook account was inaccurate, the driver posted a transcript of an audio recording he made during the meeting. In Part I of this article, we’ll explore the legal cli-
mate for school transportation employees who use so- cial media to express their opinions about the actions of their employers. Part II, in next month’s issue of STN, will consider legal issues related to the former driver’s secret recording of the disciplinary meeting.
SPEAKING OUT: LESSONS LEARNED FROM RECENT CASES
School law experts agree that social media in the
workplace is a complex and gray area of the law. While I seldom avoid murky legal issues, I’m un- willing to comment directly on media reports of the incident concerning the Georgia school bus driver, since these reports may reflect only the part of the “story” that the driver and/or spokesperson for the district chose to share, and the incident may yet become the subject of litigation. But words to the wise will be evident as we examine the use of social media to post workplace concerns. We can begin by considering the basic rule
around employees speaking out. Simply stated: Speech by public employees is likely protected under the First Amendment if its subject is a matter of public concern (as opposed to a personal interest) and if the employee’s right to speak is more important than its impact on district or educational operations in a given case. Tere’s still more to consider. If the speech played a substantial part in an adverse employment action (for example, the employee was disciplined or even terminated because of the speech), the employer will prevail if it can show it would have made the same decision to discipline or terminate the employee in the absence of the protected speech. And that rule seems to hold whether the speech takes place on social media or in a more traditional forum.
IT IS NOT EASY TO DEFINE WHAT IS A MATTER OF PUBLIC CONCERN
When a public employee makes a statement, its content, form and context is examined in the totali-
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