Facebook in the workplace: Take care on both sides

The Barrow County case has drawn comments and e-mails from around the country. Here is an astute note from a Californian in the information technology field.

I thought Andrew Karp raised compelling issues, and he was happy to allow me to post his comments. (Karp has a technology consulting firm,  Sierra Information Services, in Northern California.)

He writes:

Ashley Payne’s predicament is both upsetting and illustrative of the perils our “information society” faces.  Normative values for “privacy” and “appropriate conduct” are rapidly changing, largely fueled by Internet-based tools like social networking sites allowing near-instant access by others to our personal information, whether we like it or not.

My job as an independent information technology consultant and my personal experiences with the Internet inform my opinions about and reactions to Ms. Payne’s case.  She seems to have been done in by an anonymous predator who took innocuous information and images from her Facebook page and maliciously transmitted them via email to administrators at the school where she worked.  In turn, school administrators apparently used the defamatory falsehoods in the anonymous email they received to put Ms. Payne in a position where she felt the only career- and reputation-saving option she had was to resign from her position as a high school English teacher.

It’s important to recognize that Ms. Payne posted photographs of herself engaging in conduct that is lawful both here in the United States and in the countries in which the images were taken.  In fact, in many European countries there’s no minimum drinking age.  So, what she was photographed doing, where she was doing it, was not even illegal conduct for many students at the school where she taught, much less for her as an over-21 adult.

Further, “Crazy Bitch Bingo” is the trademarked name of a program/event that is periodically organized at bars and restaurants in the Atlanta area.  Therefore, her posting a message on her Facebook page that she was going out to play “Crazy Bitch Bingo” at a local bar/restaurant accurately described her plans for that evening.

It is just as accurate as saying “I am going out for a Coke, or I bought a box of Fruit Loops,” both of which are also trademarked product names. “Coke” is also a slang term for cocaine (an illegal substance) and sometimes the term “fruit loop” is employed to characterize someone as crazy, or foolish.  While I personally think that “Crazy Bitch” is a mildly offensive term, its apparent use in this context is not, and Ms. Payne’s Facebook-based notice she was going out to “play Crazy Bitch Bingo” was not characterizing an individual in a derogatory or defamatory way.

Would any sane person regard a statement by a teacher along the lines of “I bought a lot of Coke tonight at the supermarket for Saturday’s pre-game tailgate party” as promoting the use of illicit narcotics by high school students?

So, any assertion that “she shouldn’t have posted those things on Facebook to start with” is misplaced.  She posted photographic images of herself engaging in lawful “off the clock” conduct and a text message accurately describing her personal plans to attend an event having nothing to do with her job as a secondary school English teacher.

One common thread in this discussion has been that since Ms. Payne “resigned,” there is little the teachers union or the courts have to offer her in redress.  I disagree.  While I am not a lawyer, a union representative or a teacher, anyone who has taken an undergraduate course in business law knows that a contract/agreement obtained under duress is invalid.  And, that seems to be the situation here.

Fairness for Ashley Payne should become the rallying cry for teachers unions whose members who are the subject of adverse personnel actions arising from information posted on social networking sites and the use (or, rather, misuse) by school administrators of anonymous allegations received via email.  I rather doubt that union leaders would shirk from fighting the termination or forced resignation of one of their members of the false and defamatory allegations were in “hard copy” and slipped under the door of the school principal’s office.  Just because the “evidence” arrived via email does not relieve, in my view, the union from protecting its members’ contractual rights.

It’s also very possible that, as in many public agency collective bargaining agreements, the one between the Barrow County school board and its local teachers union contains provisions mandating access by a represented employee to a union representative when management initiates a meeting with an employee that may lead to an adverse personnel action such as employment termination. The school board may claim that the “conversation” between Ms. Payne and the administrator which lead to her “resignation” was voluntary and did not “start out” as an “adverse action,” but that’s pretty suspect to me.  I can’t imagine a union representative telling Ms. Payne to hurry up and quit her job under these circumstances.

The next issue is the alleged “voluntary” nature of her “resignation.”  It seems as if Ms. Payne was under a lot of pressure and coerced in to “resigning” by administrators in the school where she worked.  She wanted a way out while protecting her ability to continue to practice her profession and retain her newly earned credential.  It would not surprise me if her lawyer now pursues a “duress” claim to nullify the validity of her resignation.  A fundamental principle of contract law invalidates any agreement that is obtained when one party to it is put under duress by the other.

Instead of putting a gun to her head, the administration apparently fed her some half-baked “truths” and “suggested” it might be “best” if she “resigned” immediately.  The “gun” was not a Colt .45, but the threat of losing her credential and reputation.

That Ms. Payne is: 1) young; 2) engaged in no unlawful conduct; 3) is relatively new to the teaching profession; 4) was apparently not allowed/given time to consider her options in the matter before “resigning,” and was (if I am understanding things correctly), 5) given a “suggestion” by an otherwise trustworthy superior that she might lose her credential if she did not resign, all point to a potentially successful duress claim.

My thoughts/perspective on this matter are shaped by a situation I encountered a few years ago while presenting a series of technical training seminars for a prominent financial services firm in the southeastern US.  The company wanted to reduce its employee headcount, it seemed, by forcing folks to “resign” rather than to “lay them off.”

The company implemented its “headcount reduction plan” by plucking hapless victims from their offices/cubicles and taking them, one at a time, to an office where a senior manager, several burly (and armed) security guards, and a human resources employee were present.

The employee was then told: 1) their employment was terminated, effective immediately, “for poor performance”; 2) they were going to be escorted off the premises at the end of the meeting (another security guard collected the personal property /effects from the employee’s work space); and, 3) that if they signed an agreement to “resign” and to never discuss the circumstances of their so-called “resignation”, they would receive a larger severance package than if they did not sign the agreement, right then and there.

No opportunity to read it over, think about it, talk to your spouse, lawyer or financial advisor. Just sign here, “resign,” get a bigger check, and the nice men with the guns will show you to your car.

As it turned, out, enough of the people who had been “resigned” by the company got together and sued their former employer in federal court.  There was valid statistical evidence showing that most of the employees who “resigned” were over 40, female, racial minorities or combinations of all three, raising claims of employment discrimination.  The company tried to get the case dismissed on the grounds that since the plaintiffs had “resigned,” there had been no discrimination and hence no valid cause of action.

But, a central part of the plaintiff’s case was that the “resignations” had been obtained under duress. Having been called to a “meeting” in a room with a bunch of armed guards and told “sign here or else” without having a chance to fully read/consider the contents of the “agreement” and other factors, they claimed, rendered the “resignations” invalid.

The company agreed to settle the case rather than go to trial, which was probably smart for them, since a judge certified the dispute as federal “class action” discrimination case that was starting to generate substantial negative publicity for the firm.  It also avoided a public airing of the manner in which these “agreements” had been obtained, which itself might have been a PR nightmare for the company.

In Barrow County, we now have a young, attractive and sympathetic plaintiff.  If her lawyer convinces a judge that duress nullifies her “resignation,” my guess is the school board will want to quickly—and quietly—settle. Neither the volunteer members of the school board nor the insurance company which issued their liability policy will want to see this case played out in the press or in front of a jury.

From a pure cost/benefit standpoint, it is probably less expensive for the board and its insurance company to give her two or three years pay in return for a confidential settlement agreement allowing her to look for work in another district with an unblemished record.  And, I am sure Ms. Payne wants to get to the classroom rather than spend years having this matter hanging over her head.

But, between now and when her case is resolved (either at trial or via a settlement agreement) if Ashley Payne gets so much as a parking ticket the school board’s lawyers will attack her credibility like a dog after a bone.

I just hope that this young woman to resume her career as a teacher, and soon.  Unfortunately, as a lawyer friend once told me, it is “hard to unring the bell” with these sorts of cases.  But, we should not allow the expanding world of the Internet and of social networking sites like Facebook to relieve all of us of the fundamental requirement to be reasonable, thoughtful, accurate and fair in our dealings with others.

35 comments Add your comment

Teacher Hubby

November 18th, 2009
10:57 am

So here I am again, thinking I need to take down our pics on the swinger website that my wife and I belong to. Sure no school age children should be looking at those kinds of sites, but i now wonder how badly she needs to keep her job even though we do nothing illegal.. What we do on our own time is no business of anyone BUTT us.. So many teachers out there do things that southern baptists would love to rant about.. But I dont think I’ll give them the chance.. Any for the Trapeze club this weekend ;)

V for Vendetta

November 18th, 2009
11:41 am

Wow. A very thoughtful and eloquent post from Mr. Karp. As a teacher, I appreciate knowing that there are people like him in the world. It is easy to become frustrated in light of stories such as Ms. Payne’s.

However, I do take issue with a few choice comments from the article in today’s AJC. Jeff Hubbard made the following comment:

“There’s no rule that says a person over the legal drinking age can’t consume alcohol,” he said referring to Payne’s case. “The concern is at what point does that inhibit a person’s ability to be an effective role model.”

Considering that this comes from the mouth of someone in the GAE, it is even more troubling. (Although, for the record, I think unions are little more than mob mentality run amok in politics.) It is our status as “role models” that gets held over our head whenever morality comes calling; however, how many other role models act in ways that can be far more damaging to a child’s perceptions?

Baseball players take steriods.

Football players shoot themselves in the leg with unregistered firearms.

Rappers do drugs, degrade women, keep illegal firearms, etc . . .

Movie stars make sex tapes, do drugs, and promote fame at any cost.

I don’t complain about such things because all of those people are free to do as they please–until the consequences for their actions catch up with them. It does not affect me nor will affect my children (because, like me, they will be taught to separate reality from unreality, reason and logic from mysticism and whim worship). Children are literally inundated with thousands of bad role models every single week, and I am to believe that a teacher is capable of single handedly derailing a child’s concept of authority and responsibility?

Please.

Let me put it another way: If I were to find out that some of my local police officers of fire fighters enjoyed boozing it up on the weekends, dressing in women’s clothes, or going to strip clubs, I couldn’t care less. If they were good at their jobs, I would be happy to know that they were protecting me.

And that’s all anyone should care about with respect to teachers.

Maureen Downey

November 18th, 2009
12:05 pm

V, I think “role model” is a loaded phrase. Some posters here think teachers should never be shown with alcohol. Under the criteria folks have listed here for teachers, they are outlining what someone needs to earn sainthood, not a teaching license.
I would have no problem with my kids seeing pictures of teachers drinking wine in Paris. It shows them that if they work hard, get a teaching job and save, they can travel to Europe.
(And perhaps take their mother with them.)
Maureen

whinersareus

November 18th, 2009
12:14 pm

So I am guessing if the trade name was F—ing Crazy Bingo that would be ok to say too.

Maureen Downey

November 18th, 2009
12:26 pm

Whinersareus: I think “bitch” has now crossed into slang. There was a good NYT piece on what is now acceptable on TV and it noted: “The use of the word, ‘bitch,’ for example, tripled in the last decade alone, growing to 1,277 uses on 685 shows in 2007 from 431 uses on 103 prime-time episodes in 1998.”

(The story can be found at http://www.nytimes.com/2009/11/14/business/media/14vulgar.html)
Maureen

whinersareus

November 18th, 2009
12:32 pm

In your world, maybe. Just because it is used on tv doesn’t make it ok in my classroom or my life.

CRS

November 18th, 2009
12:36 pm

You sure put the “whine” in “whinersareus.”

Wounded Warrior

November 18th, 2009
2:09 pm

Post with caution. The pictures and movies in the internet are there forever, and hackers can steal pictures on your hard drive.

Elizabeth

November 18th, 2009
3:06 pm

I guess I am a cranky whineasaurus also because words like crap, bitch and a few other words that seem to have been made common by TV are NOT allowed in my classroom or in my home. My 24 year old daughter no doubt uses these terms away from home, but she knows better than to use them in my house or in front of me. I will not apologize for believing that those who use such language are crude, rude, and disrespectful. I will not apologize for believing that those who resort to this type of language do so because their vocabularies are so limited that they cannot speak correctly and use more acceptable, polite, varied, and sophisticated language. I would like to say that they should read more and watch TV less. Unfortunately much of the contemporary fiction ( juvenile and otherwise) seems to model itself after TV. I have refused to read Ferrel Sams’ books since they were written because, although the stories are wonderful ( I read the first one), the language is offensive and trashy. I prefer to reread Gone with the Wind,which at least confines itself to a Damn in context and which I can accept because it is in context of the story and not just there to be there. I prefer to read To Kill A Mockingbird for the same reason. And guess what? My favorite read is still Charles Dickens because I don’t have to worry about being offended or turned off because of bad language written by those who obviously never studied the great literature of the past, which never needed profanity to sell itself. And yes, my students think I am a dinasaur. I have parents who come to conferences abd use those words in front of me and their children. Yet as a teacher I have to weigh every word I speak to make certain I don’t “offend” a student. Well, I intend to stay a dinosaur for the rest of my life and the world can just get used to it.

What else?

November 18th, 2009
4:13 pm

So I wonder what acceptable words could have been used for the event, “Crazy Bitch Bingo.” I wonder if we are making a judgment against a person who will attend an event with a label that includes a crude word, or going to a bar.

Context is Everything

November 18th, 2009
4:45 pm

I am an educator and also happen to enjoy showing dogs on the side. I have on occasion posted on my Facebook page that my dog went “Winners Bitch” at a show that weekend or that she was entered in the 6-9 Month Puppy Bitch class. It is completely appropriate and correct within that context whether it offends anyone or not.

Context is Everything

November 18th, 2009
4:49 pm

I posted, but I guess it got caught by the filter.

Maureen Downey

November 18th, 2009
4:51 pm

Context, Your comment is now out of the filter.
Maureen

elementary teacher

November 18th, 2009
5:11 pm

This is crazy. I’m a teacher. I am young. I like to have my wine or margaritas now and then outside of school. I sometimes swear – outside of school. I do none of these things in front of my students. I feel that I am excellent at my job, the parents I work with praise me and my students love me. Am I a bad role model? No, I’m human. If you want to do away with every teacher who has a drink here and then and swears sometimes – well, you’re not going to have anyone left to teach those kids. And we’re already short on teachers.

elementary teacher

November 18th, 2009
5:13 pm

I guess mine got caught by the filter too… haha

ctag

November 18th, 2009
5:25 pm

Maureen, I think that you should launch a campaign to get Ms. Payne employment at some other, more understanding school system, preferably one that realizes what an amazing teacher she is instead of focusing on her innocuous private life. Any Atlanta school would more than likely be much more understanding of these circumstances than Barrow county. Since clearly Ms. Payne’s references from her Barrow county employment are going to be negatively skewed, some action should be taken on her behalf.

majii

November 18th, 2009
5:35 pm

I appreciate Mr. Karp’s insight into the issue of social networking sites. In GA teachers are prohibited from joining unions. We can be members of PAGE or NEA, but there is no collective bargaining power available, although these organizations do make legal representation available.
V—Unions can serve a useful purpose for workers. The American public has been sold on the idea that unions are evil and the cause of all economic problems. This is just not the case. Unions have been responsible for the establishment of a minimum wage, 40 hr. work week, safety rules on jobs, paid vacations, and getting workers overtime pay for extra hours worked, etc. I find it extremely ironic that many people in the media and in government rail against unions when they were once members of unions, or have family members who are members of unions or work for unions in top positions. Ashley sure could use a union to fight for her rights on this issue.

friend of Karp

November 18th, 2009
6:30 pm

I am assuming that “Teacher Hubby” ’s post was tongue in cheek.

ratted out?

November 18th, 2009
7:30 pm

I wonder if it is accurate to say that Ashley was “ratted out” by an unhappy/envious colleague…

V for Vendetta

November 18th, 2009
7:36 pm

Elizabeth,

Easily offended? To Kill a Mockingbird (one of my favorite books of all time) contains more than a few N-words, damns, hells, and the word “jackass” appears in chapter one. But it’s all OK if it’s used “in context,” right? C’mon.

dismayed

November 18th, 2009
7:41 pm

Let’s keep in mind that for some of the citizens of this state, evolution is just as dirty of a word as b***h.

You know, to reference the dinosaur: You can have your opinion about language. But Steinbeck, Hemingway, Chaucer, Shakespeare, Salinger, Golding, Morrison, LOTS of authors read in high schools use bad language. Is it gratuitous, no. Are the authors being authentic to the characters and situations of the time, yes. Does it mean that everyone should use the language? No. But there is a time and place for it. Attitudes and mores change.

I actually want my childrens’ teachers to have life experiences. I would love to have a teacher that can go out and relax socially (and legally) with an alcoholic beverage and be able to go to work the next day than some naive nitwit who hasn’t learned not to binge drink and shows up hungover to school the next day. Heck, for my kids, there are some teachers I would buy THEM a drink if I saw them out – I know my kids that well. I want them to be social creatures that can get along with different personalities and have good life experiences to share.

If you expect our teachers to live the lives of saints, then maybe homeschooling is your thing.

Maureen Downey

November 18th, 2009
7:57 pm

Ctag, I think Ms.Payne would like to be back in her classroom. That is the point of her lawsuit. I think she liked her students.
Maureen

EducationCEO

November 18th, 2009
8:46 pm

I think Mr. Karp did an excellent job as well. I must admit Mo, that I guess we only diagree on the merits of charter schools (for students who cannot afford private schools). One favor: Could you plese clarify for your readers that there are no such things as teacher unions here in Georgia? I believe there are 4 or 5 states that do not have them. I believe Alabama is also one of those states. We discussed this in one of my grad classes but I cannot remember the others. I am certain that if GA had a strong teacher’s union, this incident would not have made it to the media.

Mo

Damo

November 18th, 2009
9:00 pm

Teacher Hubby… You say what you do is your own business and that’s true. But be aware that if you bung it on the internet, (Facebook is part of the wider internet remember) then it is everyones business. But yes that still doesn’t give anyone the right for people to tell you what to do in ‘your’ life. Just be prepared to cop a bit of flak from those who may not like what they see.

V for Vendetta

November 18th, 2009
9:19 pm

dismayed,

I wish I taught your kids. :-)

luvs2teach

November 18th, 2009
9:48 pm

V – I was going to say the same thing!

high school teacher

November 18th, 2009
9:49 pm

Dismayed, you speak the truth. To everyone: read the first 40 lines of Romeo and Juliet, the play that’s in every 9th grade English textbook. It’s much more offensive than a picture of a teacher with a glass of wine.

Ray

November 18th, 2009
9:57 pm

Somethin’, ain’t it? The Wall Street clown can screw this country six ways to Sunday and get tax payer money to do it, but the teacher gets slapped for a Facebook posting…

If you got a brain – don’t go into teaching. This country doesn’t deserve you.

Ernest

November 19th, 2009
6:12 am

Excellent post by Mr. Karp. Ms. Payne could probably print that commentary, represent herself against the district with the points mentioned and win. Who knows, there are probably some good lawyers that may want to represent her ‘pro bono’ based on the issues.

I mentioned it earlier and will say it again, I believe the school district should reach out to her and look to settle this quickly and quietly. The sooner this blows over for them, the sooner they can refocus their full attention on educating the children in Barrow County.

Go Ashley

November 19th, 2009
12:29 pm

I just hope she understands that they WILL make her life HELL when she wins and returns. I hope she settles, and takes the money and runs.

Mr. Karp’s email was perfect!

teacher/parent

November 19th, 2009
1:31 pm

@Elizabeth-I applaud you for not using ‘trashy’ language in your class room or in your home; however, other people’s lives can not and should not revolve around what other individuals consider offensive. I find censhorship of someone’s language more offensive thatn the foul language itself. But that’s just my opinion, no more valid than yours. Just as others are free to read the novels you mentioned that contain foul language, users of the internet are free to post such language on their private pages. Not only can you choose NOT to read Ms. Payne’s site, you would have to hack into it since you do not have access to it. As much as I repsect your choice not to use certain language, you should allow others the same courtesy when such use impacts you in no way, shape, or form.

Private school guy

November 19th, 2009
3:07 pm

Regarding wine. At a private school fundraising functions wine often is served. At one dinner I was with a group of students who would be videotaping a guest speaker. Wine was served to me at dinner in front of the students. I drank one glass. The students got a better idea of how people are supposed to drink. Today I’m sure most of those students are doing better than the graduats from Barrow County.

Elizabeth

November 20th, 2009
10:25 am

In your personal life, you as an adult are free to speak in any way you wish. In MY classroom ,however,I am the adult and my students WILL use appropriate language in my classroom even though the halls are full of profanity. As for language in works by Shakespeare, Chaucer, Mockingbird, etc., the key words here are IN CONTEXT. The books and authors you mention have and will stand the tests of greatness as well as time because the language is essential to demonstrating (in Mockingbird, for example) how “man’s inhumanity to man” ( Wordsworth) is demonstrated in the book’s treatment of black people and “different” people, i.e.Boo Radley, of another era. Good literature trancends both its time and language because it mirrors the history and heart of mankind and provides an essential life lesson. Today’s trashy language is used to sensatinalize and sell books and will not stand the tests of greatness or time. But I don’t know why I am explaining this to those who think it is fine to condemn me for refusing to accept their morality when they are unwilling to accept that I have as much right to mine as they do to theirs. Some changes are good; some are not. Every time I watch a TV show like The Waltons, Little House on the Prairie, or Seventh Heaven, I stop and think of not what we have gained and how far we have come, but rather, of what we have lost.

CC

November 20th, 2009
11:39 am

Elementary Teacher, well said! Teachers/educators are role models, but we all have our private lives. I enjoy a drink out with dinner sometimes and I feel that there is nothing wrong with that. I am in my 30’s, so there is nothing illegal about having a glass of wine at dinner. Do I get drunk in public? No. I enjoy using Facebook and it has allowed me to reconnect with a lot of people. I use it only on my personal time! I have my privacy settings on the most private, do not post a lot of pictures, and am careful about what I say. I am not taking my page down!

Quiet Riot

November 23rd, 2009
4:40 pm

STOP – Drop and Roll.

What idiots. Teachers / Policeman / Parents are role models. And yes, drinking is an adult tendency to fire / suspend or tatter this individual for anything legal done outside of school and “off the clock” is an absolute – disgusting – act. How dare those people tell this adult what she can and can’t do; unless its in her “contract” if it is and she is being compensated for bartering those freedoms then that is fine (ie. a “morals” clause) otherwise – they can go pound sand.