Don’t Drink and Drive, How About Don’t Party, Photograph, and Post?
posted by Deven Desai
It’s New Year’s Eve. Time to eat, drink, and be merry. Time to wear the lampshade. Time to let the past go and look to future. And time to capture time in a picture. And that’s the problem. I have heard stories of weddings threatened and sometimes derailed by indiscreet bachelor or bachelorette party pictures. In those cases the old school photograph was developed and then someone saw the pictures and had to tell her girlfriend or buddy about what they saw. Now, however, people post and share their fun online. The number of stories about how a beauty queen was dethroned or a star’s career was halted from indiscreet pictures require little more than a nod here. But as the New York Times notes sometimes perfectly legal and normal behaviors can cause problems when captured in a picture and posted online. So where is the line between professional life and personal life?
In the specific case a woman in a student teacher program had attended a costume party. She posted a picture from the party to her MySpace page in which the woman:
with a pirate’s hat perched atop her head, sips from a large plastic cup whose contents cannot be seen. When posting the photo, she fatefully captioned her self-portrait “drunken pirate,” though whether she was serious can’t be determined by looking at the photo.
The school of course claims that the woman was not meeting her program’s requirements but admitted that the picture was found just before the dismissal. In addition, “The university backed the school authorities’ contentions that her posting was ‘unprofessional’ and might ‘promote under-age drinking.’ It also cited a passage in the teacher’s handbook that said staff members are ‘to be well-groomed and appropriately dressed.’” Right.
With the ability to document almost anything as not meeting some bureaucratic ideal of doing one’s job, employers will always be able to trump up a claim that the firing was based on poor performance. But to claim at the same time that the behavior promotes underage drinking and one must be well groomed at a costume party suggests grasping at straws. If the article is accurate about the arguments, no one should accept the idea that an adult has to hide being an adult from students. This situation is not a teacher telling students “I was so wasted on Saturday.” As for the grooming issue, one has to admire an attorney who can argue to the court that what one wears at a COSTUME PARTY somehow relates to grooming and professional standards.
Of course one should realize that how one behaves in social situations can affect professional life. But allowing employers to micromanage the off hours of employees must stop. As the article notes the problem is that most employment is at-will. As such it would seem that anything is fair game for dismissal. Yet that sort of formalism cannot be correct. At-will must be understood as related to employment situations. Otherwise, those who fear big government will miss the real threat to individual liberty which is big (or small) employer.
Until then, however, stop wearing those comfortable sweats or torn jeans at home. They are poor fashion, reflect poorly on everything which you are associated, and the work standards committee disapproves.
December 31, 2007 at 2:23 pm
Posted in: Employment Law, Privacy
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Responses (4)
jimmy - January 1, 2008 at 10:31 am
this post makes little sense. Private employers should be able to limit the conduct of their employees. Don’t like the rules. Go be a teacher at a public school. Then come back and tell me I was too harsh.
Jon Garfunkel - January 1, 2008 at 1:33 pm
Agreed with Jimmy above– is this the best that a professor of law could argue? (”But allowing employers to micromanage the off hours of employees must stop.” I thought that the practice of law meant appealing to more than common sense.)
Now, if the last half-decade of blogging has taught us anything, it’s not to take an article in the New York Times as authoritative. You have the web. Google it.
As usual, a local newspaper (the Lancaster New Era) published most of the facts of the story in an article; a random blogger exercpted enough of that article; most other bloggers never read the full story; the original article is no longer available online; the archive link is broken.
So, here’s more of the story: when the Conestoga Valley School District found the MySpace picture, they also found that the teacher, Stacy Snyder, was linking to it from “her Web site.” (it would appear to be a separate one from her MySpace page.) It appears that they asked her to remove the link. Her next step was to mount a first-amendment-martyr defense: she posted messages on her website about being warned about the heat she was getting from the school.
A different account is given by Snyder’s lawsuit: “Ms. Buffington showed Plaintiff a picture, downloaded without Plaintiff’s permission from her private web page at http://www.myspace.com.”
From the Lancaster New Era article, we’re curious what the nature of her stonewalling comments on her website. From the lawsuit, we’re curious as to what exactly “private web page” meant. Of course, also, once again,
And two things are exasperating here. First, no one’s put together a complete timeline, and no one will, until the court case. After all, since these cases are de facto judged in the public court of opinion, it would be nice to have all the facts in the media. (When a news article writes “According to a statement issued by the school district…” why is that issued statement not online?)
Second, complaints 44,45,47 of the lawsuit point to the lack of coverage in the applicable ethics codes regarding the posting of personal photographs on private web pages. I think that the free speech absolutists and the free speech balancers can agree that we would like such codes to be more refined going forward.
Deven - January 1, 2008 at 4:29 pm
Jon, thanks for the feedback and for the legwork on the other facts. So first, why do you assume that she had two Web pages? The article does not (as you note) state explicitly that there are two pages. In addition the complaint only references the MySpace page as you also note. It is entirely possible that the rather than apparently being two web pages, there is one, the MySpace page (which yes may not qualify as Web site to many but could be called that by a journalist) and that relying on or interposing the idea that a news article is precise in this case is not so wise as you suggest in general. In fact you say that she was “linking to it from ‘her Web site.’” I found the article you referenced as the source and it does not use the word link at all. (Sorry not available online for free). It says she directed students to her Web site. THAT idea is something to consider. A teacher having a private life and even posting some of her pictures online is one thing. If students find it, they find it. In a similar manner, prior to the Web, students might learn that a teacher got married, had kids (and sex), or even drank alcohol with friends. Now, a teacher telling her students to go that Web site may cross the line just as a teacher extolling the wonders of a drunken party to a class would be a problem.
Now with all that in mind you I think might actually be getting at what I was saying but with a different baseline view. Again, of course one’s life outside of work can impact one’s work. The question is why should the school or any other institution be able to set standards that restrict even dubious behavior such as foolish drinking? In other words what codes do think would work? For, I am not saying that the lawsuit and its claims of privacy and free speech are coherent. I am, however, interested in hearing what level of outside of work governance is correct.
Your post seems to take the implicit position that codes could cover these acts. Maybe. But can you say why or what they would look like? I don’t think institutions have much reason to poke into every corner of one’s private life and to try and regulate it. That does not mean the relationship between employer and employee negates an employee from considering what acts may reflect poorly or have a negative impact on her employment. Another way to think of the question is to ask does one really want a code to try and address all these private behaviors or is it better to try and separate where employment begins and ends. Last, it may be that the school was more upset that the teacher directed her students to the page so the codes do address the behavior insofar as she was working within her capacity as a teacher when she did so.
Jon Garfunkel - January 1, 2008 at 8:16 pm
Deven, thank for your response. This is a regular habit of mine, to do this sort of legwork after a blog post, and your appreciation of it is most welcome.
I agree we are at the mercy of embarassingly inadequate reporting here. (and add the Washington Post to the list of offenders.) I concede your point that I erred in describing the connection from Snyder’s apparent web site to the MySpace photo. True, the school’s complaint, according to the Lancaster paper, was worded as such: “Snyder’s Web site invites students to continue looking at her page.”
As for codes, I much prefer procedural codes to prohibitive codes. Let’s get back to the initial discovery of the photo. This was an example of, in “twilight between public and private,” as Dan wrote in FoRo. Anything afterwards should have followed a regular procedure, the aim of which would have been towards following the interests of both parties– keeping the photo private. (Synder insisted that the photo was private, and the school administration wanted it to be more private than the perceived it was.)
Of course, the other problem here is that scholars in this field may only be aware of what has appeared in the courts or in the press. There are far more many anecdotes which are never reported– often the ones in which the employee concedes.
So I would invite such Internet/reputation scholars to solicit such cases to get a more complete understanding.
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