July 26, 2014

Facebook Status: You’re Fired

The facts may change but the story remains the same.  Employee posts derogatory statements on Facebook.  Employee gets fired.

The most recent example of this occurred in Paterson, New Jersey and involved a first grade teacher.  The teacher posted the following status updates on her Facebook page:

  • I’m not a teacher – I’m a warden for future criminals!
  • They had a scared straight program in school – why couldn’t [I] bring [first] graders?

Viewers of these posts included one of the teacher’s colleagues, who forwarded the posts to her school principal.  The teacher was immediately suspended with pay pending further investigation.  As news leaked regarding her comments, the school received a least a dozen irate phone calls, a protest of 20-25 persons took place outside the school and camera crews from major news organizations descended upon the school.

Tenure charges were then brought against the teacher by the school district.  The teacher argued that her statements were protected by the First Amendment.  The Administrative Law Judge (”ALJ”) assigned to the case rejected this defense.  He noted that her remarks were not a matter of public concern, but rather, merely an expression of dissatisfaction with her job.  The ALJ found that comments, such as those made by the teacher, make it “impossible for parents to cooperate with or have faith in a teacher who insults their children and trivializes legitimate education concerns on the internet.”

The teacher pointed to her spotless employment record as well as her almost thirteen years of service and argued that termination was inappropriate for a mere “momentary lapse in judgment.”  Again the ALJ disagreed.  He found her comments “showed a disturbing lack of self-restraint, violated any notion of good behavior and [acted in a matter that was] inimical to her roles as a professional educator.”  The ALJ’s decision appears to have been based, in large part, on the teacher’s response to the charges.  The ALJ noted that he had expected the teacher to be contrite and express regret over her actions.  Instead, she merely appeared “befuddled by the commotion she had created” and continued to deny that her conduct was inappropriate.  Finding that her actions were grossly inappropriate and her relationship with the Paterson school community “irreparably damaged,” the ALJ concluded the teacher was unfit to continue her duties and dismissed her from her teaching position.  The ALJ opinion was then upheld by the New Jersey Appellate Division for the reasons expressed in the ALJ opinion.

© 2014 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

About the Author

Ari G. Burd, Giordano Law Firm, Labor Employment Attorney

Mr. Burd practices in both the Labor and Employment Law Practice Area and the Health Care Practice Area. In the Labor and Employment Practice Area, Mr. Burd devotes his time to litigation and counseling employers with regard to traditional employment and labor related issues. Mr. Burd has extensive experience in both the state and federal courts in areas including retaliation, wrongful termination, wage and hour, sexual harassment and race, age, gender and disability discrimination. Mr. Burd also has considerable experience in assisting negotiating and drafting employment related...


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