Q. May an employer discipline or discharge an employee for appearing in a TikTok video?

A. If the employee is part of a union, inappropriate conduct in a TikTok video may not be sufficient grounds for a just cause termination. In 2019, a Pennsylvania school district terminated a third-grade teacher after the district discovered the teacher had appeared with her minor daughter in an online TikTok video. However, following arbitration and two appeals, the teacher was reinstated to her former position and received all lost earnings, seniority, and benefits.

Background

The teacher taught third grade for 15 years. Her daughter, who attended school in the same school district, was in 10th grade at the time of the incident.

In October 2019, while off duty, off district property, and in her own home, the teacher’s daughter recorded a TikTok video of herself and the teacher dancing to a 15-second snippet of a rap song. During the video, the teacher made a 7-to-8 second appearance and was seen mouthing the “F” word and engaging in a sexual gesture with her hands. The teacher instructed her daughter not to post the video online, but her daughter posted the video on TikTok anyway. Once the teacher discovered that her daughter had posted the video, she instructed her daughter to remove the video, but did not take any affirmative steps to ensure immediate removal.

At no point during the video did the teacher identify herself as a district employee, nor did she wear any clothing or other indication of an association or relationship to the school district. The only connection the video had to the district would have been the viewer’s personal knowledge of the teacher’s employment.

Nevertheless, when the district became aware of the video’s existence, it suspended her without pay and ultimately discharged her for “immorality, incompetency, intemperance, and willful neglect of duties” in violation of Section 1122(a) of the Public School Code of 1949. According to the district, the TikTok video was “unacceptable and outrageous” and “was widely disseminated to the general school community,” which cast the district and the teacher in a negative light.

The teacher’s union filed a grievance on the teacher’s behalf, contending that the district had violated the collective bargaining agreement by suspending her without pay and terminating her without just cause. The case was submitted to arbitration, with multiple days of hearings and testimony.

The arbitrator ruled in favor of the teacher, noting that the district failed to meet its burden of proof that the teacher’s actions “offended the morals of the community,” as required by the school code. The arbitrator acknowledged the teacher’s participation in the video may have been inappropriate and unprofessional, but her actions did not violate the school code. Moreover, there was no evidence that the video had been disseminated throughout the community to a point where the video stirred up controversy. As a result, the arbitrator reinstated the teacher to her former position and awarded her lost earnings, seniority, and benefits.

The district moved to vacate the arbitrator’s ruling, but the trial court affirmed, finding that substantial evidence supported the arbitrator’s determination that the district failed to show that the teacher’s TikTok video posed a substantial likelihood of offending community standards or negatively influencing students. The district appealed the trial court’s decision, and the Commonwealth Court of Pennsylvania again affirmed the arbitrator’s ruling.

Takeaways

While the above case involved a public employer and a bargaining unit employee, it also serves as a cautionary tale for private employers, particularly those with unionized workforces.

In the above case, the employee (1) was not on school grounds; (2) was not working; (3) did not indicate or show that she was a teacher in the school district; and (4) told her daughter to not post the video. Further, when the video was posted, (5) it did not cause great controversy in the community or among the student population, and (6) the district lacked evidence showing that the teacher’s actions directly violated the school’s code. These were factors the arbitrator and courts looked at to determine if the district properly terminated the teacher’s employment. If the circumstances were different, this case may have had a different outcome, such as if the employee (1) made an offensive video while on the clock at work or used company property to make the video; (2) wore her employee uniform or name badge clearly showing her employer; and if (3) the video had spread rapidly across the community, causing an outcry from the public and causing the company to suffer in its reputation; and if (4) such social media use directly violated an employer’s social media policy.

In light of this case, employers should update their policies so that employees understand that inappropriate videos on social media sites, such as TikTok, are prohibited. In doing so, employers must ensure that their policies do not chill employees’ ability to engage in concerted activity, such as discussing terms and conditions of employment on social media, regardless of whether the workforce is unionized. In addition, employers must be aware of any state or local statutes, limiting their ability to discipline or terminate employees based on off-duty conduct.