Careers

Experiences

Industries

Offices

Our Firm

Pages

Our People

Updates

Practices

Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

For as long as there has been social media (lo these handful of years), seldom a day has passed without a news story about someone's online post getting them fired. Teenager tweeting her boredom at work? Canned. Teacher griping about students on Facebook? Fired. Professional athlete trash-talks his management online? Booted. And so on.

contentpilot/introduction

By and large, these decisions usually make sense. After all, water cooler chit-chat is one thing. Globally accessible, preserved-for-all-time embarrassments are quite another. The internet makes it hard enough for businesses of all stripes to safeguard their goodwill and reputations; they don't need their own employees working against them.

core/paragraph

Nevertheless, one has to believe that, eventually, the generally accepted threshold for punishing online indiscretions will rise, and society grows inured to them. It will have to, or else an entire generation who grew up posting their every adolescent thought on MySpace and Facebook is going to have difficulty finding gainful employment.

There are already a few exceptions to the rule that every embarrassing post results in termination. For example, in May 2010, the Michigan Court of Appeals <a href="http://www.macombdaily.com/articles/2010/05/31/news/doc4c0487078f671771356147.txt?viewmode=fullstory" target="_blank" rel="noreferrer noopener">upheld the reinstatement</a> of a public school teacher. She had been fired after photos of her "simulating sex acts with a mannequin at a boating party" surfaced online. The court held that, while the teacher's conduct was "coarse," she could not be terminated for "legal, off-duty, off-premises, conduct not involving students"--even if that conduct later ended up on Facebook.

Two separate cases involving nursing students reached similar conclusions. In <a href="http://scholar.google.com/scholar_case?case=10139832233283230613&amp;q=yoder+university+of+louisville+miracel+of+life&amp;hl=en&amp;as_sdt=2,5" target="_blank" rel="noreferrer noopener">Yoder v. Univ. of Louisville, (W.D. Kent. 2009)</a>, nursing student Nina Yoder was expelled "due to a blog that she posted on her MySpace page . . . based on Yoder's experience with an obstetric patient whom she was assigned to follow through the birthing process as part of her course work." The post displayed a lack of tact on several fronts, including describing the patient in distinctly unflattering terms, and referring to newborns as "Creeps." But despite finding the post "vulgar . . . generally distasteful and, in parts, objectively offensive," the court did not find it "unprofessional," as the University did in determining that Yoder violated its Honor Code.

"Rather," the court held, "it is entirely <em>non</em>-professional, and therefore it falls outside the purview of the Honor Code." In other words, Yoder was wearing the hat of an average citizen speaking her mind, rather than that of a nursing student--despite the fact that her post "was technically accessible to the public," and would certainly rub her future patients the wrong way. Similarly, in <a href="http://scholar.google.com/scholar_case?case=13127130610980704031&amp;q=Byrnes+v.+Johnson+County+Community+College,&amp;hl=en&amp;as_sdt=2,23" target="_blank" rel="noreferrer noopener">Byrnes v. Johnson County Community College (D. Kansas 2011)</a>, a group of nursing students was reinstated after being expelled for posting pictures of a "fresh" placenta on Facebook. The Court dismissed the school's concerns that the timing and condition of the photos could have allowed a viewer to deduce the patient to whom the organ belonged, finding the injury to the students' careers much more compelling.

Each of these cases demonstrates an unusual willingness to split hairs over the context of the embarrassing content and the reasons for which it was posted, and to play down the reputational injury that they may cause to employers or other third parties. It seems likely that such nuance will become more common as societal expectations about what is and isn't fair game online evolves.

Nevertheless, for every case like these, there are at least a dozen like <a href="http://www.freep.com/article/20110317/BUSINESS06/103170544/Oh-bl" target="_blank" rel="noreferrer noopener">this poor guy</a>: the PR contractor who inadvertently dropped an f-bomb on Chrysler's official Twitter account, rather than his own--resulting in not only his firing, but also the termination of his employer's account with Chrysler, and 20 jobs along with it.

So, no matter how the winds may shift in attitudes towards social media, the wise advice remains: restrain yourself. When the whole world is reading, the stakes are always going to be high.

Update (4/1/11): In a development very relevant to the foregoing post, the social media professional let go by Chrysler <a href="http://www.crainsdetroit.com/article/20110331/FREE/110339971/social-media-expert-not-cursed-is-hired-to-make-ford-arts-beats#">has been hired</a> as the Social Media Community Manager for this summer's Ford Arts, Beats &amp; Eats festival. The festival's producer commented: "we needed to build in social media, and this guy worked at a high enough level to handle major automotive accounts. I'm convinced this was just an unfortunate slip-up and we'll be the first of many second chances for him."

Augmented Legality

Emerging Media and Technologies

Partner

Brian D. Wassom

Information Technology Transactions

Evolving Standards of Online Decency?

Warner Norcross + Judd LLP is responsible for the contents of our advertising and this website. Please read our full <a href="/privacy-policy/" aria-label="see privacy policy">privacy policy</a> available on our website. If you have any questions or comments about our website or our Privacy Policy please contact us at <a href="mailto:info@wnj.com">info@wnj.com</a> or 616.752.2000. 

Evolving Standards of Online Decency?

professionals