Educator’s modeling photos example of legal, moral gray area for employers

by Paula J. Owen – published in Telegram & Gazette

FITCHBURG — Racy photos, sexually graphic blogs and sexually provocative posts on social media sites can be used against you by your employer.

Teachers nationwide have been fired for salacious Facebook postings, online photos and even for modeling for bikini photos. Though it’s not criminal behavior by any means, their actions while off duty were deemed “immoral” by some school districts and determined to have an adverse impact on the school or their ability to teach.

Teachers have also had disciplinary action taken against them for character flaws and have been terminated under various state laws for incompetency, insubordination, neglect of duty, sufficient cause, conduct unbecoming and immorality.

You may read the entire article here: Telegram & Gazette

Attorney John Vigliotti and Attorney Andrew Gambaccini were quoted frequently in this article:

“With a private company, employment is at-will and they can let you go for any reason that is not in violation of federal or state law. With a private company, if they don’t like an employee for whatever reason, they can let you go and they have that right.” John Vigliotti, an employment attorney in Worcester.

Andrew A. Gambaccini, an employment attorney in Worcester, said employers have to be careful not to infringe on employees’ First Amendment rights.

“The First Amendment protects much more than just the spoken word — it also protects expressive conduct,” Mr. Gambaccini said. “Burning an American flag during a protest is protected under the First Amendment, and so are commercial endeavors such as modeling.”

“The school district or municipality needs to decide if it wants to take its chances if they take it to an arbitration hearing,” he said. “If they lose, they’re on the hook to award a sizable back pay, possibly with interest, and they’re open for litigation down the road.”

“Fitchburg not only had to look at this situation, it had to look at what it has done in the past with other employees,” he said. “Some activity off the job that might be an issue of moral turpitude — what have they done then? If they are treating her differently now, there is a significant amount of liability.”