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article imageOp-Ed: Post a photo, wear a pirate hat on myspace, and say goodbye to your career

By Paul Wallis     Dec 30, 2007 in Internet
If a stranger enters your premises, it’s trespassing. If someone swipes your mail, it’s an actual crime. If an employer does a surveillance operation, finds a myspace photo of you wearing a pirate hat, and fires you, it’s fine, according to someone.
The New York Times has a pretty grim story, prefaced with the interesting information that Henry Ford had inspectors who would go around employee’s houses and literally inspect them, presumably for acceptable morals.
It wasn't legal, but there's always some sheep somewhere who'll tolerate authoritarianism, even when it's attacking them.
Today, we’ve come exactly no distance from that situation. That firing actually happened. A student teacher was fired for wearing a pirate hat on myspace, and calling it “Drunken pirate”. She was also denied her teaching credentials. She’s now taking legal action.
Nice to know the school system is looking after the really important things like party hats, not just wasting time on literacy, numeracy, and the ability to use furniture.
That’s a few more million well spent. How could anyone bear to live with the idea that Out There, somewhere, a student teacher might be wearing a pirate hat?
Despite all this frenzied upholding of standards of decency, there are one or two other issues.
1. There are things called laws, and they do apply to employers. There is no civil or statutory power granted anywhere on Earth, to any employer, including governments, to do anything of this kind. The employer has no more right than any other person to “inspect” private premises, personal business, or anything else not directly related to their business. If they have a problem with an employee, that’s what police are for.
2. The current horde of lawsuits for illegal surveillance, including such elegant things as cameras in toilets, filming women’s washrooms, and other exotic, cutting edge forms of voyeurism indicate that this Gestapo-like mindset is at epidemic levels. The lawsuits are based on the fact that those actions are illegal. Security equipment is supposed to be used for security. Any other usage is likely to need a legally convincing reason. So does any internet use. "Digging up dirt" is a very dangerous occupation. You can actually be prosecuted and sued, if you do it right. Get someone annoyed enough, and welcome to World War 10.
3. Employer’s rights are defined by terms of employment. An employer cannot enter into a contract to commit an illegal act. As far as I know, no legal or constitutional right can be waived by contract, either.
4. Only police and government agents can be authorized to conduct surveillance of this kind, and they have to get the permission of a court. This isn’t a raffle. There is no right to intrude on private property, or personal business, even in theory, granted to anyone but people with the statutory power.
The person fired wasn’t on school premises, wasn't conducting school business, or engaged in anything related to the employer or terms of employment. She wasn’t committing a crime, a felony or a misdemeanor. It's not illegal to wear a pirate hat at a party.
Her career has now been torpedoed because somebody decided to use that photo, however ludicrously, as a basis for her dismissal.
The likely reason is a bit more mundane than the big issue approach. Somebody probably didn’t like her, and managed to convince management, which we can assume doesn’t know what the phrase “legal liability” means, to fire her.
As a reason for dismissal, to call it ridiculous is flattery. Even “idiotic” hardly covers it.
Any workplace can become a war zone, and the net is now being used as a weapon. The minute that translates into a damageable event, it’s lawsuit time, and obviously, publicity time.
Most employers would have better things to do with their time, and better legal advice. Few would be so poorly advised as to actually go on record with something like this dismissal. Any manager who tolerates internal firefights, let alone takes sides, is a fool at best, without going to the extent of creating a legal deathtrap for himself.
If you’ve ever managed more than one person, you’d know what I mean. You stomp on things like that, and tell everyone to pull their heads in, if you've got a working brain cell, for exactly this sort of reason. From office catfight to Supreme Court isn't that far a step.
Trespass is not a right.
Invasion of privacy is not a right.
There's a few hundred years of case law to back up those statements.
The good news is that even the most utterly besotted “big boss man”, convinced by his weekend workshops of his godlike powers, will have to pay attention to the result of this lawsuit.
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