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Employment Law Attorney Bruce Ludwig Discusses Employment Law and Social Media Policies

February 13, 2011

Blog sparks debate of online issues (The Intelligencer)
By: Gary Weckelblatt

School districts and many businesses are in uncharted territory when it comes to what you can and can't post on the Internet.

Gina Rubel lectures companies on the importance of having policies in place so their employees know what they can and can't do online.

And given what Central Bucks learned about a blog created by one of its teachers last week, school districts would be advised to get with the program.

"Companies need to get on the ball with creating social media policies," said Rubel, president and CEO of Doylestown-based Furia Rubel Communications. "Right now they are very far behind. There's a major risk-management issue in a majority of companies in the United States."

Natalie Munroe, a CB East English teacher, was suspended with pay from her $54,500 job last week for profanity-laced rants about students, co-workers and administrators on a blog she started in August 2009. She didn't name students in any of the posts reviewed by this newspaper.

Munroe admitted the blog, brought to the district's attention by students, is hers, according to district spokeswoman Carol Counihan.

CB administrators are investigating how much Munroe wrote when she was at work and using school computers. Superintendent N. Robert Laws said Munroe's deleting her blog at school Wednesday is a "violation" of district policy that dictates school computers be used only for school activities.

But what about the First Amendment, which protects an individual's freedom of speech? While that may not be an issue for a private sector employer, Munroe works for a public employer and she is a member of the teachers union that will go to bat for her.

"If this were a private employer we wouldn't even be talking," said Mary Catherine Roper, an attorney with the ACLU. She said non-government businesses can fire an employee for just about anything.

For a public employer, however, there's "always a balancing act in their role as the government versus their role as employer," Roper said. "It comes down to how much impact her speech is going to have in her workplace.

"If she's clearly identified as a school teacher, that's important. If she criticized the mayor, that has nothing to do with her job."

Roper called free speech a "very complicated area of the law. Each case is very much about the specific facts of that case."

Bruce Ludwig, a labor lawyer with Philadelphia-based Willig, Williams & Davidson, said Central Bucks could have a problem in court should it fire Munroe and she fights her dismissal on the ground that CB enforces its policy in a discriminatory manner.

"They come down on her like a ton of bricks but turn a blind eye toward others," he said.

Ludwig's point: Is Munroe the only one of nearly 1,400 district teachers using school computers on classroom time for non-school issues?

Like Rubel, he pointed to the need for a lawful, well-defined policy, negotiated with the union that's "applied in a uniform manner."

Even then, he said, "the First Amendment is going to trump policy."

On the other hand, Ludwig said, if someone wrote something "so disparaging or (was) a violation of the privacy rights of students, maybe they did go too far."

Wythe Keever, spokesman for the Pennsylvania State Education Association, a union representing public school teachers, said he couldn't comment because of potential litigation.

However, on its website, PSEA advises teachers that "Even though the First Amendment protects your speech as a private citizen on matters of public concern, that speech may fall outside of First Amendment protection if it 'impedes your employer's effectiveness or efficiency, or otherwise disrupts the workplace.' Avoid posting anything on your profile page about your colleagues, administrators, or students, as well as using inappropriate or profane messages or graphics, or anything that would reflect negatively on your workplace."

School districts are all over the map when it comes to developing policies for social media.

Hatboro-Horsham has a "pretty extensive acceptable use policy," according to John Nodecker, its assistant superintendent.

Bristol Township Schools don't have a policy for blogging, said Eileen Kelliher, the district spokeswoman, but has a "very strong professional ethics policy."
Pennsbury administrators, according to spokeswoman Ann Langtry, have for several weeks been researching and developing a "policy on social media to be reviewed by our solicitor and recommended to the school board."

The day the Munroe story broke, Nodecker said he sent out an e-mail to the district staff as a "reminder to the sensitivity of electronic communications. It was a word of caution and advice."

Nodecker called the story a "good learning opportunity. We just have to be very, very sensitive to what we say."

Munroe's blog, he said, "was inappropriate."

Ludwig, the attorney, said it'll be a "long struggle before we hit that right balance" between freedom of speech and accountability.

Said Nordecker: "Teachers and students as well need to use good judgment and manners regardless of the communication medium. You need to be civilized at the keyboard. We have to look at the world very differently. These things are instantaneous and spread like wildfire. A new culture is starting to evolve."

A point made by Rubel.
"This is a generational communications issue," she said. "People are being raised to communicate this way and raised to speak their mind. What I call commonsense, they may have another definition because that's what they're used to."

She had a warning for anyone who writes online.

"Anything you say online can come back to haunt you," Rubel said. "Would you get up on megaphone in Times Square and say it? If you wouldn't, keep it to yourself. Either play it smart or don't play."

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