Remember when we told you that Facebook might consider suing employers who force potential hires to give up their account information so they can log in and snoop around? But that they said they weren’t currently pursuing any such lawsuits? Well, they might have one. While this doesn’t concern a potential employee but someone who had already been an employee, a Michigan teacher’s aide was fired because her supervisor “assumed the worst” when she refused to give up her Facebook login information. So, is that fair? We’ll provide more context and let you decide.
One part of Facebook’s threat to sue employers that made it merely a threat was that the stories about people being forced to hand over their login information had not happened all that recently, more like two or three years ago (which is practically a decade in “internet years”). However, this story happened just under a year ago, so they might have a potential target on their hands — unless schools are exempt. Here is what happened:
Kimberly Hester was employed directly by Less Cass Intermediate School District as an aide to a local elementary school. Last year, off work hours, she posted a picture of a co-worker’s pants around her ankles with the caption “Thinking of you” — meant to be funny — to her Facebook page.
The picture was posted back in April 2011, and Hester insists that it contained no pornography and was “very mild.” A parent of a child at the school, who was friends with Hester on Facebook, saw the picture and told the school. We don’t know what the parent said, but it sounds like the profile was private, and the school officials did not have access to the picture to take a look for themselves. The school’s superintendent asked Hester three times for access to her Facebook profile, and she refused, saying she didn’t think it was appropriate for them to ask.
So, they just assumed it was child porn or something terribly depraved, and they suspended her following a period of paid administrative leave. They sent her a letter saying the following, which Hester has kept for legal proceedings:
“…in the absence of you voluntarily granting Lewis Cass ISD administration access to you[r] Facebook page, we will assume the worst and act accordingly.”
The school maintains that they broke no laws in firing Hester since there are no such state or federal laws on the books concerning online privacy for them to break. As we know, there are some U.S. Senators in Washington, D.C. looking into changing that, even if a possible amendment failed in the House. Hester maintains that her private life is private, and the school had no right to pry into what she does when she’s not working for them.
The difference between this and other stories is that the person who was asked to share their information was a teacher’s aide, and the employer is not a private company but a public school. Suppose Facebook did target merely an “employer” who asked for private information — would it still apply to the education system, whether the school is public or private, because the employer is in the business of educating minor children? Or would the school still be at risk for such a lawsuit from Facebook since the profile was still set to private, and they were trying to look where they had no business looking? This is all hypothetical, since Facebook has not made any statements regarding this particular story. It’s also a different situation than someone in the vulnerable position of being interviewed for a job being asked by the employer, who is at their mercy; in this case, Hester already had the job.
Right now, Hester is pursuing her own legal complaint against the school. Arbitration begins in May.
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