from -www.lexology.com
As more students, parents, teachers and adm
inistrators tap
into
social networking sites such as Facebook, MySpace, Twitter and YouTube for educational,
school communication, admissions market
ing and other purposes, the l
ines between educational and personal
networking are becom
ing more and more blurred.
Social-
networking sites like Facebook and MySpace allow users to create personal websites and to post onl
ine personal
information about their employer, marital status, friends, outside
interests and hobbies as well as photographs and real-time "status" updates. Sites like Twitter allow users to send and receive short messages up to 140 characters
in length. Better known as "tweets," these messages are displayed on the publisher's profile page. More and more people are us
ing
social-
networking sites daily. For
instance, Facebook's blog says that it has more than 400 million active users and that 50% of them log
in on any given day.
There is no "one size fits all" approach to
social media use
in schools. Different
schools use
social-
networking sites differently. Some
schools do not use
social-
networking sites at all and may have filters that prevent employee and student use at
school. Other
schools use
social media to communicate with parents and students by publish
ing a
school newsletter or by provid
ing "tweets" to parents about schedul
ing, weather closures and classroom updates. Some use
social media for recruit
ing and evaluat
ing prospective employees. Others use
social media for alumni communication and fundrais
ing. Some
schools are us
ing
social media to enhance student learn
ing because it enables students to connect and form virtual communities.
The Risks Of School-Sanctioned Social Media Use
As
schools explore the positive ways that
social media can be used
in education, negative uses are sure to reveal themselves as well, present
ing new concerns and legal risks for
schools.
A teacher may "friend" a student, allow
ing that student to have unfettered access to the teacher's private life, the ability to post private
information about students, or much worse, engage
in inappropriate communication with a student. An employee may post negative comments or risqué photographs on a
social networking site that also identifies the
school.
A potential staff or faculty member's
social networking site may reveal that person's race, religion, disability, or sexual orientation, thus expos
ing an employer to
increased risk of a failure to hire claim. A positive L
inked
In recommendation that contradicts the reasons for a poor-performance evaluation may be used aga
inst the
school in a later wrongful term
ination lawsuit. Employees have new avenues for harassment, disparag
ing other employees and the
school, and shar
ing confidential
information. Yet, tak
ing adverse action aga
inst an employee based on
information gleaned from a
social-
networking site may lead to
invasion of privacy and other claims.
Savvy Screening Method – Or Risky Recruitment Tool?
More and more often,
schools are turn
ing to the
Internet for
information about potential new hires. Employers face a number of barriers when it comes to effectively screen
ing job applicants. For example, many applicants fabricate their résumé and lie dur
ing
interviews. While the
Internet can certa
inly provide enlighten
ing
information about a candidate's attitudes, behaviors and core values, the risk of "
social-media screen
ing" may outweigh possible ga
in.
First of all, Facebook and MySpace profiles can
indicate race, religion, disability, sexual orientation or other protected categories of an applicant,
increas
ing the risk of a discrim
inatory failure to hire claim if the applicant is not hired.
In addition, a savvy user of onl
ine media can manipulate
information to create a false personal image.
Currently, there are no published discrim
ination cases based on an employer's use of
social-
networking sites to monitor employees or screen applicants. But given the
increased use of
social-
networking sites
in recent years, no doubt employers will soon f
ind themselves
in court be
ing sued on allegations of discrim
ination or retaliation for tak
ing adverse employment actions based on
information obta
ined from
social-
networking sites.
Another concern for
schools is the Fair Credit Report
ing Act (FCRA) and its state equivalents. While FCRA generally does not apply to situations where a
school uses
social-
networking sites on its own (i.e., without engag
ing a third-party background screen
ing firm), it may apply to situations where an employer uses such sites
in conjunction with certa
in workplace misconduct
investigations.
Moreover, if a
school does engage a third-party background screen
ing firm and
includes searches of
social-
networking sites as part of the requested background check, the employer would be bound by the provisions of the FCRA. Other state fair credit report
ing laws may provide more protection to job applicants and employees, so be sure to review any state-specific statutes to ensure that your
school is
in compliance with all applicable laws.
MySpace…My Privacy?
Many employees feel that it is an
invasion of privacy for employers to look at, and base employment decisions on, their
social-
networking profiles. This is likely due to the misperception that
information posted on these services is private; many MySpace and Facebook users do not realize that the
information they post can generally be viewed by the public.
In most cases, employees will not be able to successfully argue that access
ing their profile constitutes a cause of action for
invasion of privacy because an
invasion of privacy cause of action requires a show
ing that the employee had a reasonable expectation of privacy
in the content posted. An employee would likely have a difficult time establish
ing that reasonable expectation of privacy when thousands, if not millions, of people had access to the employee's profile and the employee voluntarily disclosed personal
information
in the public doma
in.
But it is not true that an employee stands no chance of successfully assert
ing a claim for
invasion of privacy. The outcome might be different if, for example, an employee makes his Facebook profile "private," or for his "friends" only, and the employer is able to circumvent the privacy sett
ing simply to obta
in information for mak
ing personnel decisions.
Also, us
ing
information obta
ined from
social networking sites may be problematic s
ince some states,
includ
ing California and Colorado, prohibit an employer from impos
ing discipl
ine for lawful conduct – such as disparag
ing "tweets" and "wallposts" – conducted on a person's own time.
Schools
in such states may be exposed to potential liability if they choose to take adverse action aga
inst an employee after view
ing photographs of the employee on the employee's profile, smok
ing, dr
ink
ing, or engag
ing
in other lawful conduct.
Pop Quiz: Is Digital Information Protected By Privacy Law?
Recently, a group of restaurant employees set up an
invitation-only MySpace group called "Spectators" where they could "vent any BS …without outside eyes spy
ing on us." [See "Off-Duty Discussion Groups Can Be Off Limits To Employers,"
in the March, 2010 issue of the Fisher & Phillips Hospitality Update]. Post
ings referred to violence, illegal drug use and a posted copy of a required test for employees. A manager caught w
ind of the group and asked an employee for the password to ga
in access to the group – and then term
inated employees for criticiz
ing their bosses after view
ing the onl
ine posts. When the case went to trial, the jury found the manager's actions violated federal and state statutes, which prohibited unauthorized access of electronic communications sites based on the way the password was obta
ined. Pietrylo v. Hillstone Restaurant Group d/b/a Houston's.
The lesson to be learned is that although employees should have no expectation of privacy when it comes to publicly available material,
schools need to be extremely careful of how they obta
in protected
information they believe they have a right to know. Managers should not coerce employees or students to provide passwords or use "fake friend requests" as a way to try to access an employee's or student's private pages.
As the onl
ine barriers between the personal and
school-specific use cont
inue to blur, adm
inistrators and faculty must be
increas
ingly careful when becom
ing "friends" with employees, students or parents
in cyberspace. Onl
ine
information and op
inions can potentially lead to harassment, discrim
ination or other claims – even if posted on a personal profile.
In one case, a manager posted two controversial comments on his personal Web page: "What's wrong with women these days?" and "Chicks seem to have more issues these days than Jet Magaz
ine and keep up more drama than daytime TV and Jerry Spr
inger comb
ined." These post
ings were used by an employee to support her lawsuit. Derrick v. Met. Gov't of Nashville & Davidson Co.
To Ban Or Not To Ban?
S
ince
social-media use is so multi-faceted, no s
ingle approach will apply to all situations. Some
schools may opt to place an outright ban on
social-media access at
school as well as prohibit "friend
ing" parents, students and other employees. Other
schools may simply prohibit employees from identify
ing their
school onl
ine. As the use of
social-
networking sites for educational and community communication purposes
increases,
schools may need to adapt to the ma
instream use of such sites and recognize that a blanket prohibition simply isn't practical. Regardless, your
school should take action now to safeguard aga
inst
social media mishaps.
All
schools should have a
social-
networking policy. A computer-use policy that simply prohibits personal use and disclaims any expectation of privacy is not enough. While it is tempt
ing to ban
social networking altogether, this may raise enforcement problems particularly as
schools take advantage of the opportunities of
social media use
in education.
Make sure that exist
ing computer-use, confidential and proprietary
information, and no-harassment policies (employee and student) specifically address
social networking.
Schools that check candidates' public
social-
networking sites should avoid "fake" friend requests and be consistent – if your
school checks any candidate, check them all.
Advise your employees that if they use the
school's email address or name they must act
in accordance with the
school's professional standards,
includ
ing respect
ing the
school, its employees, parents, students, etc. Cont
inue to rem
ind employees of the risks of unequal relationships when deal
ing with students. Provide tra
ining
in order to ensure that employees understand that
information posted on
social networking sites may be public and also understand the
school's policies.
Rem
ind all employees,
includ
ing adm
inistrators, faculty and staff of their heightened obligation not to reveal confidential
information on-l
ine and educate them about the risks of becom
ing on-l
ine "friends" with parents, students and/or subord
inates. F
inally, consistently enforce such policies and before tak
ing any discipl
inary action, carefully
investigate any suspected misconduct