Wednesday, August 10, 2011

Catching Up to the 21st Century: Courts and Social Media

The proliferation of social media has presented businesses with many challenges as well as many opportunities.  To address the challenges, employers have adopted policies aimed at guiding employees on appropriate use of social media.  Due to the slow pace at which cases make their way through our legal system, there is a dearth of published court opinions analyzing the propriety of such policies.  A recent Minnesota Court of Appeals decision is one of the first in this state to provide such guidance.  Although the case involved a student disciplinary matter at a public university, the Court’s decision has broader application and provides helpful insight into how courts are likely to view similar disciplinary issues in employment settings.

The Facts
Amanda Tatro was a mortuary-science student at the University of Minnesota.  As part of her coursework, she was assigned to work with a cadaver whom she named “Bernie.”  Tatro had a Facebook account that allowed “friends” and “friends of friends” access to her postings.  This meant that hundreds of people had access to her posts, some of which commented on her studies in a manner which the university deemed harassing and inappropriate. 

In one such post Tatro stated, “Who knew embalming lab was so cathartic!  I still want to stab a certain someone in the throat with a trocar [a long hollow needle used during embalming] though.  Hmm.. perhaps I will spend the evening updating my “Death List # 5” and making friends with the crematory guy.”  Another post expressed sadness about no longer getting to be with “Bernie” and suggested that she kept a lock of his hair in her pocket.

After receiving a report from another student, the University suspended Tatro pending its investigation.  Following a disciplinary hearing Tatro was given a failing grade for the embalming-laboratory course.  Tatro appealed the University’s decision and in July 2011, the Minnesota Court of Appeals affirmed the disciplinary action.

Lessons Learned
While the case addresses First Amendment and higher education questions that are of little import to most employers, the Court’s discussion provides useful insight for employers considering how best to address social media issues in their workplaces.  The court makes clear that the fact that Tatro’s conduct occurred off-campus was irrelevant to the analysis of whether the University had a legitimate interest in monitoring her behavior, especially given Tatro’s statements about wanting to “stab” someone in a classroom.  The Court recognized the University’s interest in protecting individuals on campus from threatening conduct, saying “Indeed, the realities of our time require that our schools and universities be vigilant in watching for and responding to student behavior that indicates a potential for violence.”  In an age where violence in the workplace is at least as prevalent as violence on campus, it is safe to assume that courts will recognize that employers have a similar, substantial interest.

Another aspect of the case that had implications for employer social media policies.  The Court rejected Tatro’s argument that, when read in context, the statements on her Facebook page were literary expression intended to be satirical.  Tatro stated that she had recently ended a relationship with someone who had no connection to the university, and that her statements were jokingly directed at him.  In the disciplinary hearing, staff and students testified about their concern that Tatro’s statements may have been directed toward them.  The court held that it did not matter what Tatro intended.  What mattered was the fact that her statements were reasonably viewed by others as threatening. 

It is also noteworthy that the Court accepted the validity of the University’s concern about the impact of Tatro's conduct on its donor program.  One of the policies Tatro was found to have violated was a rule that prohibited students from engaging in conversation about cadaver dissection outside the laboratory in a manner which is not “respectful and discreet.”  Although the decision focuses on conduct outside the classroom rather than outside the workplace, the Court’s rationale appears applicable in both contexts.  It suggests that even though an employee is off-duty, his or her conduct can still have adverse consequences on a business; therefore, employers likely have some ability to take adverse action against employees who engage in misconduct outside of work.

It is inevitable that more and more judicial decisions will be made defining courts’ view of social media issues.  So far, employers should like what they see.  Cases like this one suggest that the courts will take note of the practicalities and give employers latitude in protecting legitimate business interests.

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