In February, at the WASDA New Superintendents Academy, Kirk presented a legal update that focused on addressing practitioner HR issues in Wisconsin schools. The presentation covered the following topics:
- Part 1: The Teacher Contract
- Part 2: The Right to a Representative, Management & Supervision
- Part 3: Use of Administrative Leave, and Protected Activity
- Part 4: Employee Speech, as well as Staff & Religious Accommodations
- Part 5: Employees & Technology
In this installment of the series, we’ll dive into employees and technology, specifically:
- Privacy Standard
- Sexual Harassment
- Inappropriate Use of Computers
Our goal with this series is to publish the details of Kirk’s legal update so Wisconsin superintendents and districts are up to date, and better prepared, for these types of practitioner HR issues.
Let’s begin the final installment of the series …
Employees and Technology
PRIVACY STANDARD
In O’Connor v. Ortega, the Supreme Court held that the Fourth Amendment right to be free of unreasonable searches and seizures applies to information obtained through electronic surveillance of employees by government employers.
When determining whether a government employer’s intrusions are lawful, the court first considers whether “[t]he operational realities of the workplace” indicate that the employee has a reasonable expectation of privacy. If so, the court then applies the standard of reasonableness. A government employer’s intrusion must be reasonable under the totality of the circumstances.
O’Connor v. Ortega, 480 U.S. 709, 716 (1987).
Both the inception and the scope of the employer’s intrusion must be reasonable. Ask:
- Is the intrusion justified at its inception? Are there reasonable grounds for suspecting that the search will turn up evidence of work-related misconduct?
- Is the search reasonably related in scope to the circumstances which justified it? Are the measures “reasonably related to the objectives of the search and not excessively intrusive in light of ... the nature of the [misconduct]?”
SEXUAL HARASSMENT
Generally, there has to be a pervasive atmosphere of harassment based on gender that impacts one’s ability to work for the operative legal standards to be met. As a result, the protocols for investigation:
- If primarily based on computer messages, email, or posts, you’re looking for evidence that these messages are being sent with some regularity.
- How wide is the audience that is ultimately seeing these messages, directly or indirectly?
- Make a decision about waiting or proceeding in conjunction with the complaining party, if the evidence is serious, but close under the law. (Should you sting or pounce?)
- How long has the conduct been occurring?
- What effect has it had on the complainant?
- How serious is the misconduct? (Remember, sexual harassment is measured by the reasonable person in the position of the complaining party.)
- How do we preserve evidence of cyber-harassment?
INAPPROPRIATE USE OF COMPUTERS
If an allegation of inappropriate use is presented, you will want to know:
- What happened and on what device?
- Can our IT Department guarantee that everything on an individual hard drive is also stored on the server or other master system? If not, we have to quarantine the hard drive:
- Have one person and two witnesses;
- Take the computer hard drive out, unplug, and store in a locked facility, drawer, or other container; and
- Devise a verifiable, recordable means of accessing the hard drive.
- Is administrative leave appropriate? This can be a possible sting scenario if the misconduct is solitary. However, the possibility that efforts will be made to tamper with evidence can be high.
- Procedure for imaging files.
- Always work with copies generated by imaging. Avoid working with the original electronic evidence.
- If the investigation implicates law enforcement because of, e.g., child pornography, they should be consulted on imaging issues.
- Do not copy, send, or otherwise adulterate any files that contain illicit material.
- Always check time stamps to determine when the activity occurred. This conduct is never appropriate, but viewing inappropriate material while students are in class, for example, creates a heightened concern for student welfare.
- Close review for email forwarding, responding is required to see who else might be involved and to what degree. Are there other recipients who also found the content objectionable but did not say anything?
- Wis. Stat. § 115.31(5)(a): Reporting of “immoral conduct” for licensure purposes. A superintendent has 15 days from the date of discharge, nonrenewal, or resignation where such conduct is involved.
This brings us to the end of our series on Kirk’s legal update on addressing practitioner HR issues. We hope the series proves helpful in managing these issues if they arise.
If you found value in this series, here are some additional articles that may be of interest: