Would You Fire Someone for Trying to Make a Co-Worker Laugh?

A teacher's aide is taking action after being let go for making a joke on Facebook and refusing to share her password.
April 02, 2012

This is a story about a Michigan teacher's aide who was fired, she claims, for trying to crack up a co-worker–and out of hours, too.

But like many workplace-related giggles gone awry in the 21st century, this one begins in social media, or more specifically, Facebook.

In April 2011 Kimberly Hester, a teacher's aide at Frank Squires Elementary in the village of Cassopolis, Michigan, posted to Facebook a photo of a co-worker's pants around her ankles and a pair of shoes. The caption: “Thinking of you." (See the photo here.)

“It was very mild, no pornography,” Hester told Michigan's WSBT TV station. She added: “It wasn't at work, it was off work time."

A parent at Lewis Cass Intermediate who was friends with Hester on the social network promptly alerted the school to the photo. (Hester's aide job was at the elementary school, but she technically was employed by Lewis-Cass Intermediate.)

Lewis Cass Intermediate superintendent Robert Colby called Hester into his office a few days later and, according to her, asked her three times for access to her Facebook page, which was private.

"I repeatedly said I was not OK with that,” Hester told WSBT.

Within days, Hester received a letter from the Lewis Cass ISD Special Education Director, which she provided the TV station. It read, in part: “…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."

She was put on administrative leave and eventually suspended.

“I have the right to privacy,” she told WSBT.

Hester has taken legal action.

“I stand by it,” she said. “I did nothing wrong. And I would not, still to this day, let them in my Facebook. And I don’t think it’s OK for an employer to ask you.”

But University of Notre Dame labor law professor Barbara Frick told the TV station that the school didn’t break any laws by asking for Hester’s Facebook information.

Right now there are no state or federal laws protecting social media privacy in the workplace, Frick said. Michigan currently is one of several states pushing for legislation that would make an employer's asking for a Facebook password illegal, though–and the social network itself has said it will seek legal action against offending employers.

Both sides are scheduled to go to arbitration in May.

Last week, Republicans in the U.S. House of Representatives defeated an amendment titled "Mind Your Own Business on Passwords", that would have banned employers demanding access to Facebook accounts. (Democrats had added the provision to a larger Federal Communications Commission reform package.) It can still return as separate legislation.

Also last week, a pair of senators (Democrats Charles Schumer of New York and Richard Blumenthal of Connecticut) called for an investigation to determine whether employers asking for Facebook passwords are breaking the law. They sent letters to the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission, questioning whether the practice is in violation of laws prohibiting intentional unauthorized access to electronic information.

What are your thoughts on how the school district handled Hester's case?