Audit, Compliance and Risk Blog

Social Media and Internet Law: The Maxim

Posted by Tina Loza on Mon, Oct 29, 2012

If you can’t say anything nice, don’t say anything at all.  Not on Facebook.  No, not on Twitter either.  Just don't say it.  Or, does it depend on context? 

internet lawMr. Burns worked at AO North America.  One of the rules at AO, like my son’s first grade classroom, was to treat others with respect.   However, instead of doing this, Mr. Burns admitted to authoring posts referring to his “toxic” work environment where, seemingly, he got to work with “morons.”  Apparently his assistant was  especially “dysfunctional,” “psychotic,” and “schizophrenic.”  

I think we would all agree that this was not nice of Mr. Burns.  He was discharged for willful misconduct because he knew about the company’s policy and disregarded it.   His unemployment compensation benefits were denied.  So sad. 

Most employers have an “at will” clause in their employee manuals and their social media policies also prohibit behavior like this.  Moreover, if there is no social media policy, most employee manuals at least require respect and appropriate behavior.   So generally speaking, if you say something inappropriate on Facebook, Twitter, My Space, etc., and your employer locates that information, they will have cause to terminate you.  There are many cases out there that discuss this and, by and large, this is the generally understood rule. 

An Exemplary Record

By way of contrast, we also have the case of a teacher, Ms. Rubino, who was terminated and then reinstated after making an inappropriate Facebook post.  I am not sure I care for the way this was handled.  The background on this case is that “a New York City public school student fatally drowned during a field trip to the beach.“  Ms. Rubino went home and posted the following on her Facebook page: 

“After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn.”

At the initial hearing the hearing officer felt that Ms. Rubino did not seem genuinely sorry, and she initially denied that she had even posted the comment.  At the appeal stage, they decided that the punishment did not fit the crime.  The court, putting the case in context, indicated that Ms. Rubino was at home and on Facebook as a private citizen.  She had been a teacher for 15 years and her record was exemplary.  So, whether she actually wanted her students to die or “hated” them was not considered as relevant as her teaching experience.  Specifically,

“And, while students must learn to take responsibility for their actions, they should also know that sometimes there are second chances and that compassion is a quality rightly valued in our society. Ending petitioner's long-term employment on the basis of a single isolated lapse of judgment teaches otherwise. While I do not condone petitioner's conduct and acknowledge that teachers should act as role models for their students, termination in these circumstances does not correspond with the measure of compassion a teacher should show her students. Rather, it places far too great a strain on the right to express oneself freely among friends, notwithstanding the repulsiveness of that expression.”

Context, Compassion and Second Chances

Readers, this is exactly why I am not an employment law attorney.  I am an intellectual property attorney.  This kind of stuff irks me.  Would I want this woman teaching my kids?  No, not really.  She says she hates her students and wants them to DIE.   It does not seem like teaching is what she should be doing.  And let me just say, I have compassion.  Tons of it.  I have three kids aged six and under.  There are days when I love my children but do not like them very much.  I even post about it on Facebook.  I cannot even imagine being a teacher – they work hard, are underpaid, and the job is fairly thankless.  But, I still cannot say I agree with this decision.  

What do you think?  Did poor Mr. Burns get the short end of the stick because he did not get his unemployment benefits?  He only said that he thought everyone was moronic.  He did not call for the death of minors who are under his direct care for eight hours a day.   Do I lack sympathy for Ms. Rubino who is currently in a room with a bunch of fifth graders wishing they would die?


internet lawAbout the Author

Christina S. Loza, the managing partner of Loza & Loza, LLP, an intellectual property law firm servicing clients worldwide. She received her undergraduate degree in biology from Loyola Marymount University and then graduated from Loyola Law School. Tina is a registered patent attorney and has experience in all areas of intellectual property law including trademarks, patents, copyrights, trade secrets, domain name disputes, internet law, eBay dispute resolution, as well as IP licensing, counseling, and litigation.

She also holds Of Counsel positions at the law firms of Manhattan Advertising & Media Law and Buynak, Fauver, Archbald, & Spray, where she manages extensive trademark dockets and advises clients on various intellectual property issues. Tina is also a member of the American Intellectual Property Law Association, the OCBA Mandatory Fee Arbitration Committee, the OCBA Mommy Esquire Committee, and is President-Elect of the National Association of Women Business Owners – California

Tags: Employer Best Practices, Employee Rights, Internet