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Sunday, August 20, 2017

The Partnership of Bully Power and Media Can Convict a Teacher at 3020-a

Bullies have the right of way in New York City, it seems to me after looking into and working on more than 60 3020-a cases of corporal punishment or verbal abuse.

Eileen Ghastin
The case of Eileen Ghastin comes to mind. I've written about her in a previous post (I and Attorney Jonathan Behrins are working on her Article 75 Appeal) after a student threatened Eileen in her classroom with beating her up with the cast on his arm, and he knew how to box, he told her. She was terrified, so she believed that there was only one way to stop him, and that was to say something that would make him re-consider. here is part of the record testimony:

"The teen then “went berserk,” Ghastin said. “He jumped out of his chair, rushed toward me and raised his arm,” encased in a hard cast from elbow to hand.
“I’m going to beat the s–t out of you,” Ghastin quoted him as yelling. “I’m a boxer, so I can ­really f–k you up. "I am really going to do a lot of damage."

Eileen was frozen with fear that she was really going to be hurt. And then, she said, " I thought to myself, I have to say something quickly or else I am going to die. --you know. So, I realized, you know, that he is in a very--a blind rage. If I say something strong enough to him, he will stop.
I said, "If you beat me, I will kill you." 

This statement stopped him."

However the Arbitrator, Richard Williams concluded that Eileen's words embarrassed the student and created a sense of terror in the student and all the other students in the class, and gave her 4 weeks suspension without pay. The lawyer on this case defending Ms. Ghastin was NYSUT Attorney Jennifer Hogan.

But in the record there is testimony that the Student, Student A, had read the article published in the New York Post on May 29, 2016:

My student threatened to beat me — and I’m the one in trouble

and Arbitrator Williams was convinced that reading the article on May 29 2016 was enough for him to conclude he must punish Ms. Ghastin for embarrassing the student.

Huh? Read the Williams' support for entering the POST article at the hearing (Kereen Evans-McKay was the Department attorney making the argument):

"21 MS. HOGAN: …I think
22 there's a distinction between the question of
23 how did you feel as a result of statements being
24 made to you in the classroom versus how did you
25 feel about reading about an allegation contained

in a newspaper. And so I understand your point
3 about the Chancellor's Regulations deriving from
4 the allegations, but here it appears to me that
5 the Department's trying to argue that uncharged
6 conduct, which is notoriety, can be used in
7 making a determination as to whether or not
8 there was a Chancellor's Regulation violation.

MS. HOGAN: ...Here
21 counsel is taking it a step further and asking
22 that question about how the witness felt as a
23 result of reading the newspaper article.

24 THE HEARING OFFICER: But that's a
25 consequence
THE HEARING OFFICER: That question is
6 being answered because in my mind, should I find
7 a violation of the Chancellor's Reg., the impact
8 of the incident and the natural flowing
9 consequences that the student experienced and
10 the impact on that student's future really going
11 forward and interacting with teachers, is
12 relevant in the determination.

MS. EVANS-MCKAY: Okay. So at the end
5 of the day, the Department has to prove for
6 verbal abuse which includes how the verbal abuse
7 by the teacher made the student/students feel.
8 If there is, if there was a follow up to the
9 incident, an incident, there's a continuation of
10 the incident that was now publicized that also
11 bleeds into how the student may have felt by the
12 incident, both the incident that happened inside
13 the classroom and now something that's now been
14 publicized about the incident. So I'd like to

15 be able to ask the student about his feelings
16 about what happened in the classroom and
17 obviously we can only get how this affects him
18 educationally if we get his feelings about what
19 happened and what he read. I think it,
20 everything has to be considered in its totality"

(Transcript, pp. 469-471, 2-3-17)

and then shockingly, Williams tried to get some emotional damages to penalize the Respondent, Eileen Ghastin:

"THE HEARING OFFICER: What ways have 5 you been affected?
6 WITNESS: Well I haven't been affected
7 at all physically. Honestly, I just thought it
8 was a stupid thing to still bring up. I'm not
9 holding a grudge. What was said was said, and
10 it was last year. I think it should have been
11 dropped last year. 

19 A. By the time I saw The Post, I was confused
20 on how she said the story had gone or what had
21 happened. But then just a week after that, I was
22 done. I just let it go." (transcript, pp. 472-473)

4 your friends saying stuff about it change your
5 mind about how it impacted you?
6 WITNESS: No. Every time they brought
7 it up, I said, "Yeah. That was me that got the
8 teacher fired." But I just leave it as that."  (transcript, p. 475)

The arbitrator agreed with the Department that the incident and the write-up in the POST must have embarrassed the Student, and gave Ms. Ghastin the penalty of 4-weeks’ suspension without pay, altering her unblemished career forever.

That Williams used the NY POST to give a penalty of 4-weeks' suspension is absurd, in my opinion. Ms. Ghastin has appealed this decision.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Bullying on the rise in NYC schools, reports jump 10% compared to 2016: survey
Ben Chapman, NY DAILY NEWS

More city students experienced bullying at their schools this year compared to last year, a Daily News analysis of data shows.

Responses by students to four bullying-related questions on the public schools’ 2017 school survey reveal that more kids are encountering the dangerous phenomenon in their schools.

This year, 81% of 433,715 kids in grades 6-12 who responded to the Education Department’s annual NYC School Survey reported that students harass, bully and intimidate their peers.

That’s a jump from the 71% of 434,693 students who filled out the surveys in 2016.

Critics of the city’s handling of school safety said the figures show bullying is on the rise and public school students are at risk.

“Under Mayor de Blasio’s leadership, our schools continue to get less and less safe,” said Jeremiah Kittredge, CEO of the pro-charter school lobbying group Families for Excellent Schools.

“The mayor must face facts, and act immediately to keep children safe from violence and bullying,” he added.

The city conducts its annual school survey to gather feedback from students, teachers and parents. Education Department officials published the 2017 survey results online on Aug. 8.

Students’ responses to multiple-choice questions on the survey showed increased harassment in public schools, although there were slight changes to the questions from 2016 to 2017.

Education Department spokesman Will Mantell said the city made the changes to more accurately capture schools’ quality, but argued the changes made it impossible to compare results.

“It’s simply not valid to compare multiple-choice survey questions that have different choices,” he said.

“Over the 11 years of the school survey, on questions that have remained the same, the percentage of students feeling safe in school hallways and teachers feeling that order and discipline are maintained have both increased,” Mantell noted.

In 2016, 51% of students said kid bullied each other at school “because of their race or ethnicity.”

On a similar question in 2017, 65% of students said kids bullied each other at school over “race, religion, ethnicity, national origin, or citizenship/immigration status.”

Likewise, in 2016, 55% of students said kids bullied each other at school because of differences “like national origin, citizenship/immigration status, religion, disability, or weight.”

On a similar question in 2017, 73% of students said kids bullied each other at school because of differences “like disability, or weight.”

And in 2016, 46% of students said that kids at their school “harass, bully, or intimidate each other because of their gender, gender identity, gender expression, or sexual orientation.”

That question was unchanged for 2016, when 59% of students reported gender-based bullying at their schools.

Saturday, August 19, 2017

UFT and DOE Approve Forced Placements For ATRs in October

The new policy of forcing teachers (and Guidance Counselors?) into vacancies in October is not going to work.

Despite what the deformers think about ATRs, most ATRs are the best in the business, wrongfully accused of misconduct or incompetency by Principals who themselves did something wrong, or don't like the employee for any number of reasons, including that they are too expensive.

Although principals will not have to pay the entire salary the first two years, this is just enough time to get two ineffectives on the ATRs' records, and send them into a 3020-a or 3012-c arbitration. The principal has to pay it after the two years. There is going to be angst in the administration because the $100,000 salary could easily hire two or even three newbies without such a high salary. It's a budget problem which has been left out of the mix after the two years. Without senior transfers, the only way to remove a tenured employee is to charge him/her with enough charges of misconduct, neglect of duty, unprofessional behavior, etc., so that something will stick, and the employee can be sent to a 3020-a for termination.

Randy Asher, in charge of moving ATRs to vacancies
The UFT and the DOE are very cunning. They made principals responsible for their school budgets, then do not put the ATRs' salary into a pool so that the school doesn't have to pay all of the salary if the ATR is terrific and wonderful, and should be given the effective/highly effective ratings that he/she deserve. But won't be. Principals are not given any incentive to hire one expensive, senior teacher who knows what to do to have kids learn as opposed to several less experienced employees who are not as skilled, but so what?  The budget trumps any other worries. Grades and exam scores can always be changed, violence in the school can be covered up, etc.

And now that the school system rates teachers on performance using the Danielson rubric, anyone can be charged with incompetency and found guilty - if the proper defense is not present at a 3020-a teacher trial. It is horribly easy to charge anyone in New York City with crimes that they never committed. In a 3012-c hearing, the employee is guilty when he/she walks in the door, and must prove that the charges are false in order to not be terminated.

What may happen is that principals will rate the  ATR ineffective at the end of the year, and legal will charge the ATR with incompetency under 3012-c, and before you can blink, the employee charged will be terminated. The principal of course will testify that the motive behind charging the ATR is the employee's malfeasance, and not the budgetary burden of the ATR's salary. But the argument must be made by the charged employee's defenders that it is the money, not the skills or lack of skill of the ATR which caused the charges to be filed.

The deBlasio administration is in the same position as Mike Bloomberg in 2010, when media made a big issue of the $ millions spent on UFT members sitting in rubber rooms doing nothing. The uproar caused Mike Mulgrew and Mike Bloomberg to close the rubber rooms. Not.

What they actually did was close the big warehouses (8 of them, of various sizes) and hide the re-assigned UFT/CSA members and Guidance Counselors  in many different locations and in small areas of offices. The hearings were sped up, more arbitrators were hired, and the media lay off of the money issue for a while. Now the same issue pops up again. It doesn't have to be this way, but there is no political will to come up with some really good human resources strategy which could benefit the children and the employees as well as take care of the thorny issue of the budget. We can send someone to the moon, but we cannot handle human beings on earth properly.

So here we go again.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials                                                                                                                                                                 

NYC Chancellor Carmen Farina and NYC Mayor Bill deBlasio

City Will Move Sidelined Teachers From Limbo to Classrooms

For a dozen years, hundreds of New York City teachers have been paid despite not having permanent jobs, sidelined in most cases because of disciplinary problems or bad teaching records or because they had worked in poorly performing schools that were closed or where enrollment declined.

This limbo was largely the result of a deal that the Bloomberg administration struck with the teachers’ union to give principals more control over who worked in their schools. Under the deal, teachers could not simply be fired, so they were put in a pool known as the Absent Teacher Reserve.

But now, saying the city cannot afford expenditures like the $150 million it spent on salaries and benefits for those in the reserve in the last school year, the education department plans to place roughly 400 teachers inclassrooms full time, possibly permanently. They will be placed in schools that still have jobs unfilled by mid-October. Principals will have little, if any, say in the placements. Neither will the teachers.

The department, which announced the plan in July, has in the past deflected questions about the makeup of the pool. But on Friday, it released some data. Of the 822 teachers in the reserve at the end of the last school year, 25 percent had also been in it five years earlier. Nearly half had been in it at the end of the 2014-15 school year. The average salary was $94,000 a year, $10,000 more than the average salary of teachers across the school system.

Close to a third of the teachers in the pool were there because they had faced legal or disciplinary charges. Others worked in schools that were closed for poor performance or lost their jobs because of declining enrollments. Twelve percent had received the lowest possible ratings of effectiveness in the 2015-16 school year; only 1 percent of all teachers in the system scored so low.

With the beginning of the school year weeks away, principals and others who work in education are wary.

Harry Sherman, the principal of Junior High School 127, Castle Hill Middle School, in the Bronx, said that while some teachers in the pool, often referred to as A.T.R.s, are unfairly stigmatized, “There are also A.T.R.s who are A.T.R.s because we have had the choice of whether or not we want to take them. And sometimes those people are not good fits for schools.”

Daniel Weisberg, the chief executive officer of the New Teacher Project, who worked for the Education Department under former Mayor Michael R. Bloomberg, said: “We’ve got this group of teachers who either can’t find a job or won’t find a job. That’s the group we’re dealing with.”

Education experts are worried that a disproportionate number of the teachers will be placed in schools in poorer areas, like the South Bronx, which have difficulty attracting and retaining teachers. Some may be placed in schools in the Renewal Schools program, one of Mayor Bill de Blasio’s signature education initiatives, which is spending hundreds of millions of dollars to turn around low-performing schools.

The principal of a high school in Manhattan, who did not want to be named out of fear of reprisal from supervisors in the department, was blunt about the effect: “You’re going to force the worst teachers in the system into the schools that are struggling the most.”

But the city described the plan as a “common-sense solution” to the problems of both vacancies and the cost of paying unassigned teachers.

“My role is to drive down the A.T.R. and to help take these resources and put them back in schools,” said Randy Asher, the senior adviser to the chancellor for talent management and innovation, and the former principal of Brooklyn Technical High School.

The number of teachers in the Absent Teacher Reserve increased dramatically after the deal made in 2005 by the Bloomberg administration, which was seeking to close failing schools, and the United Federation of Teachers. Before then, teachers with seniority could claim whatever job they wanted, displacing novice teachers without so much as having to interview with a principal. And teachers without assignments were involuntarily placed in whatever positions were open.

The deal ended that system and let principals decide whom to hire. Teachers who could not find jobs or were not happy with ones available went into the A.T.R., at full salary.

Reserve teachers do monthlong rotations in schools, frequently serving as substitutes, and some get longer temporary assignments. In the last few years, the department has offered principals incentives to hire teachers from the pool by picking up all or part of their salaries for the first two or three years. It has also offered teachers in the pool buyouts. As result, on the first day of school last year — traditionally the point in the year when the pool is largest — there were 1,494 teachers in the pool, down from 1,957 on the first day of school in 2013.

The department says the new policy of placing teachers in vacancies is expected to reduce the size of the pool by half.

In interviews, Mr. Asher and Michael Mulgrew, the president of the teachers’ union, used similar language to defend the plan, saying that it was better for students to have a permanent teacher with the appropriate license than to have a rotation of substitutes.
Michael Mulgrew, UFT President

“We’re talking about being five, six weeks into the semester where they still don’t have a permanent teacher,” Mr. Asher said. “We need to provide stability in these learning environments.”

Mr. Mulgrew said, “What we’re trying to do is give a more stable educational environment for the students.”

A recently retired principal of a school in a hard-to-staff district disputed the idea that putting any teacher into a vacancy was better than other possible solutions. “I have had over the past five years a lot of A.T.R.s come in,” said the principal, who spoke anonymously for fear of repercussions for the school. “And I have to say, less than 10 percent of them — way less, maybe 5 percent of them — would I hire.”

Lynette Guastaferro, the executive director of Teaching Matters, said that in high-poverty schools, it was particularly important that principals be able to choose teachers carefully.

“Kids living in poverty need schools led by strong teams with shared cultures and the best teaching possible,” she wrote in an email.

Principals who are forced to take the teachers will observe them over the course of the year. Teachers who earn an “effective” rating from the principal at the end of the year will then, in most cases, be placed in their positions permanently.

Asked what would happen to teachers who at the end of the year received a less than effective rating, Mr. Asher said the department would, in some cases, start the legal process to remove them.

Nicholas Weber, a special-education teacher who has been in the Absent Teacher Reserve for three years after losing his job at Murry Bergtraum High School for Business Careers because of declining enrollment, said he thought the policy would motivate principals to give bad ratings to teachers so as to not have to hire them permanently.

“It questions the legitimacy of the ratings,” he said.

Mr. Weisberg, who helped negotiate the 2005 deal when he was at the Education Department, said that one problem with the new policy was that once principals can no longer choose their teachers, it becomes harder to hold them accountable for their schools’ performance.

“The idea that principals get final say over which teachers get selected to work in their buildings should not be thought of as a crazy radical notion,” he said. “This is common sense.”


Statement on High Cost of DOE's Absent Teacher Reserve Program 

New York, NY – Families for Excellent Schools' CEO Jeremiah Kittredge released the following statement on the high cost of the New York City Department of Education's Absent Teacher Reserve (ATR) program. During the 2016-2017 school year, this program cost more than $150 million. 

Jeremiah Kittredge, CEO, Families for Excellent Schools:
“Spending more than $150 million to force bad teachers into classrooms is inexcusable, plain and simple. This money could pay for programs that actually help New York City's children, but unfortunately Mayor de Blasio is more concerned with the UFT’s priorities than he is with student achievement.”
As the below analysis shows, the funds spent on ATR could've instead gone towards a wide variety of initiatives that benefit city students. 

What Could DOE Buy With $151.6 Million? Possibilities Stifled By the Absent Teacher Reserve

Currently 822 teachers make up NYC’s Absent Teacher Reserve (ATR), and the city announced it will place nearly half of these unassigned teachers into vacant positions this fall (1). Previously the city offered an incentive system to encourage schools to hire from the ATR -- but come October 15, vacant positions will be filled using ATR teachers with or without school principal consent (2).

This change is ostensibly aimed at reducing the high costs of maintaining the ATR, which previously hovered around $100 million per year but climbed to a staggering $151.6 million in salary and fringe benefits during the 2016-17 school year (3).  A review of high-value, high-cost DOE expenditure items reveals what this money could instead accomplish if DOE didn’t spend it on teachers who aren’t even teaching and might ultimately never teach again.

If DOE hadn’t spent $151.6 million on the ATR last year, the City could have sent that money to:

  • Almost double the footprint of the Mayor’s newest initiative aimed at New York City’s youngest learners: 3K For All. Currently, 3K For All has a budget of  $177 million and will only serve one quarter of NYC school districts this fall. With a dramatic infusion of cash, the 3K For All budget would nearly double and could potentially double the number of districts served (4).

  • Allocate enough additional capital funding to construct between two and six brand new schools. NYC School Construction Authority currently lists 8 new school projects in construction, with an average cost of $66.5 million. ATR spending could fund nearly 3 new buildings (5).

  • More than triple the $47 million pledged to support the expansion of school climate resources and mental health programs. NYC DOE plans to increase student safety with additional training on “restorative practices, de-escalation techniques and crisis intervention procedures (6)."

  • Quintuple city funding and support services for homeless students. DOE pledged $30 million in April 2016 to aid homeless students, $10.3 million of which was on the chopping block during the preliminary budget process. DOE’s wasted ATR expenditure could have funded this near-shortfall -- earmarked to hire social workers and create literacy programs in homeless shelters -- nearly 15 times over (7).

  • Ensure every kid who wants a school lunch, can have a lunch. Feeding hungry students is a no-brainer and enjoys broad political support across the five boroughs. Expanding the universal free lunch program to students citywide would cost a fraction of ATR spending. Pricetag? $20.25 million (8).

  • Save millions in salary spending next year at schools that will be forced to staff former ATR teachers due to DOE’s recent policy change. Last fall the average ATR teacher received $94,000 in salary while the base salary for a city teacher was just $54,000. These high-salaried former ATR teachers are poised to take a massive bite out of budgets at the schools where DOE is about to force them on principals who don’t want to staff them in the first place -- and all of this money could instead be spent on resources principals know they actually need (9).

(4) Mayor de Blasio Announces 3-K for All.” The Official Website of the City of New York. 24 April 2017
(5) Data collected by NYC Open Data and reported by School Construction Authority. FES identified three new school buildings currently in development at pricetags ranging from $27.6 million to $98.8 million.
(6)“ Mayor de Blasio, Commissioner O'Neill and Chancellor FariƱa Announce Safest School Year on Record.” The Official Website of the City of New York, 1 August 2017.
(7)Shapiro, Eliza. “$10M to support homeless students omitted from de Blasio's preliminary budget proposal.” Politico New York. 24 January 2017
(8) Durkin, Erin. “City borough presidents want Mayor de Blasio to push for free public school lunches.” NY Daily News. 17 April 2017  

Friday, August 18, 2017

Yes, You Can Be Fired For What You Do/Say Outside of Your Workplace

Can an employee be fired for activities outside the workplace?

In the social media age, the line between personal and professional lives has all but disappeared

In the wake of recent protests and subsequent violence in Charlottesville, a Twitter account with the handle @YesYoureARacist announced its intent to reveal the identities of those who marched in favor of white nationalism in order to, in the short-term, get them fired from their jobs.

Naturally, that got a lot of employers (and employment lawyers) thinking about how they might respond if one of their employees was shown to be one of those participants.

They might have even wondered, can those employees be fired? According to a blog post by Jon Hyman, partner at Meyers Roman Friedberg and Lewis, they certainly can. Hyman's post focused on the firing of a man who was exposed by @YesYoureARacist for participating in the demonstrations in Charlottesville. Hyman's point: There’s perfectly good legal precedence for firing an employee for certain disruptive behaviors, even if done during off-work hours.

 There was a time when employers could decide how to manage employeebehavior based solely on what happened in the workplace without worrying about the specter of social media blowback. But what was once considered private is now part of a personally curated public broadcast that all, including employers, can see. In an era in which most people share scores of details about themselves publicly every day, the line between what employers can and should look at and what they can ignore has all but disappeared.

If anything, the employer anxiety that rose post-Charlottesville represents a generational shift in the understanding of social media, of privacy and of what behavior is acceptable both inside and outside of work.

HR Dive spoke with Hyman about that transformation and the new context within which employers must consider employee behavior. The conversation below has been edited for style and length.

HR Dive: Obviously we’ve seen a lot of opinions in the days since the events in Charlottesville. I’m curious if anyone asked you any questions or sent any comments about your piece arguing participants in the white nationalist demonstrations could be fired?
Jon Hyman: I’ve gotten feedback on both sides of the issue. I’ve had people saying thanks for saying this, I couldn’t agree with you more. But I have some people that have said private time isn’t an employer’s business, and that this employer — speaking specifically of the one in the blog — has no proof this guy was a neo-Nazi, they just saw a photo of him marching at this rally. Who is this employer to fire him for what he did on his personal time?

It’s so interesting because we all have these Facebook accounts and Instagram accounts and Twitter accounts and we all have these incredibly powerful cameras or phones in our pockets or purses that has turned every person on the planet into a photo and video journalist.

There’s a guy, Jason Seiden, I saw him speak at an HR conference, and he used the term 'profersonal,' which I think he coined. So I have since used that word with attribution to him to explain what I feel, which is that there is no longer the existence of a personal persona and a professional persona because social media has so intertwined everything. Back ten years ago, you punch the time clock, you go home and no one knows what you did at home ... now everyone knows what you do 24/7 because you broadcast it.

It’s frankly not enough to say you are only broadcasting it to your 200 friends on Facebook and it’s a closed network and I have my privacy settings set appropriately so my employer can’t see it. But when you are Facebook friends with someone you work with — even if you are not friends with your boss — once they print that post out, then everything is fair game.
When you post a comment on someone’s post, you are not having a private conversation. All of your connections are seeing it.

HR Dive: Social media obviously played a role in revealing who these people were this weekend, which just highlights some of the weird situations employers are exposed to now that they might not have been 20 or even 10 years ago. Now employees might not understand they can post something and easily lose control of a situation.
Hyman: Right, you’ve lost control. Nothing you do is private. And that includes as you walk down the street.

There are cameras everywhere. We are, for better or for worse, being monitored or seen just about 24/7. And most of it is self-inflicted, because we are out there posting. Everyone’s diaries are no longer locked books in their nightstand next to their bed. They are all there for the world to see.

So for these white supremacist marchers to say, “This is my private time, that’s not fair that I’m being held accountable by my employer for my private time,” well, you were in about as highly visible a place as you could be. You have to assume risk that you will be photographed and your face seen everywhere. And you risk that your employer sees it and says that’s not who I want working for me.

HR Dive: Has this rise of social media changed company policy at all? Or has it just made explicit what was kind of unspoken?

Hyman: I don't think it's changed company policy. It’s just given employers so much more access to information about their employees' behaviors.

I saw it in my practice four years ago when Barack Obama won the second term. The morning after the election, I started getting phone calls saying “So-and-so just called into HR because his co-worker called Obama the N word on their Facebook page and they no longer feel safe working with someone who uses those words. What do I do?”

The workplace essentially now has extended beyond the walls of the workplace. I see it as no different than if a group of employees goes out for happy hour after work and a male employee gets handsy with a female employee and grabs her inappropriately. If the female employee goes to HR or a supervisor sees it and does nothing, the company’s got issues.
HR has an obligation to employees that work together, whether it is a work event or not, or within the workplace or out. Social media has just broken those walls down further and maybe brought the outside world further into the workplace.

HR Dive: Will we see any changes to policy or legal protections because of how much that extends now? Will there be consequences of the blending of personal and professional lives?

Hyman: Some states have off-duty conduct laws. There are 29 states that protect employees that engage in lawful, off duty conduct. Some people call them “smoker’s rights laws” or “gun owner’s rights laws.” It’s legal to smoke, it’s legal to own a gun assuming you have a permit, so it would be illegal for an employer to fire you for this legal off-duty conduct. But it would be the same if you peaceably marched in a permitted event. When that crosses the line to the violence seen in Charlottesville, it's a totally different ball game.

We’ve seen the NLRB in the Obama administration take a very liberal view of the definition of protected concerted activity under the NLRA and really went through some contorted machinations to pigeonhole facially neutral social media policies to find that either those policies were illegal as written or illegal as applied regarding employee communications. Those are two areas that come to mind.

I look at the issue almost generationally. I think we have very different concepts of what privacy means. My parents’ generation … they don’t fully understand that social media conversations are not private, or they think it is private — and it isn’t.

I’m smack in the middle of Gen X, so my view of privacy is a little different, and I look at my kids who are 9 and 11, and they have grown up in a social media world and they will not remember a time without iPhones and Facebook. They’ve grown up in a world where Mom and Dad share everything we do on Facebook, so they will inherently have a different concept of what privacy is — that most of what we do out in public is not private.

HR Dive: One angle I’ve noticed is one side saying “Maybe keep these employees on and teach them why their ways are hurtful to others.” What are your thoughts on that?

Hyman: Here’s the way I kind of frame the issue in my brain. If a client calls me and says, “It has come to our attention that so and so employee was marching at Charlottesville over the weekend. It has made some of our employees and customers uncomfortable ... what do we do?”

There’s really two issues here. There’s the internal employee issue and the external public relations piece. Where I come down on the issue is ... if an employer wants to try and rehabilitate someone, more power to you. I think you are probably fighting a losing battle, but if you think that is your role, more power to you.

If you choose to fire the individual — which if it was my business that is what I would do — I think it is important to take a stand and signal to your other employees that type of behavior is not who we are. We don’t tolerate that here.

To take a slight detour, I approach LGBT issues the same way. There’s no real national consensus on whether Title VII covers national LGBT rights in employment, but I tell employers that there’s no point in waiting to get that guidance we will at some point get. Why wait? Send a message to your employees that you are an employer of inclusion, not exclusion, and just put LGBT rights in your handbook. This is our policy. This is who we are.

And I look at this issue the same way. This is who we are — or, more to the point, who we aren’t. We aren’t an employer who tolerates, condones, accepts or whatever this behavior. Inside the workplace, outside the workplace, period. You can send that message of inclusion to the rest of your employees.

Whatever legal theories are out there that someone can sue an employer on — whether it is lawful off-duty conduct, or protected concerted activity under the NLRA, or if you are a government employer, or a private employer since some states specifically protect speech rights in the workplace, or religious expression under Title VII, or a race discrimination claim because of my whiteness or whatever claim an employee can concoct — you need to understand what risks are out there.

But as long as you understand the risks, I would tell the employee, “This is not the workplace for you, and if you want to sue us, bring it on. I’d be happy to defend my decision in court that this is not the type of behavior inside or outside of work that helps define who we are as a company.”