A recent New Jersey employment law decision in the case of A.B. vs. Board of Education of the City of Hackensack, Bergen County illustrates the dangers of public employees, especially teachers, posting suggestive content on their social media accounts, and the reach and consequences of the New Jersey “Pass the Trash” Law.
Backgro
A.B. was a teacher with the Hackensack Board of Education. In 2013 the Board was advised that A.B. had made inappropriate posts on her social media page, including: “Fuck me, I’m Irish”, and “Women say Men Think with Their Penis. Ladies, don’t be afraid to blow their minds.” Finding these posts could potentially constitute sexual misconduct, the Board considered discipline and started an investigation, including referrals to the Hackensack Police Department and Bergen County Prosecutor’s Office. The Board of Education was particularly concerned that A.B.’s post could have been seen by her minor age students. Three days later, the Board of Education and A.B. entered into a settlement agreement in which she resigned. She then went to work for another school district. New Jersey enacted the Pass the Trash Law in 2018.
Thereafter, A.B. applied for a teaching position in Clifton. The Clifton Board of Education sent an inquiry to the Hackensack Board of Education, as required by the Pass the Trash Law, asking:
Was [A.B.] the subject of any child abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement agency, or the Department of Children and Families[?]
Was [A.B.] disciplined, discharged, nonrenewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of child abuse or sexual misconduct were pending or under investigation, or due to an adjudication or find[ing] of child abuse or sexual misconduct[?]
[Did A.B. have] a license, professional license, or certificate suspended, surrendered, or revoked while allegations of child abuse [or] sexual misconduct were pending or under investigation, or due to an adjudication or finding of child abuse or sexual misconduct[?]
The Hackensack Board of Education responded, as required by the Pass the Trash Law, yes to the first two questions, and no to the third.
A.B.’s Appeal to the New Jersey Commissioner of Education
A.B. filed an action eventually heard by the New Jersey Commissioner of Education seeking to enforce a confidentiality provision in the settlement agreement, requiring the Hackensack Board of Education to correct its answer to the Clifton Board of Education, and issue an injunction preventing it from ever responding that A.B. was the subject of a sexual conduct investigation.
After a hearing by an administrative law judge in the New Jersey Office of Administrative Law, the New Jersey Commissioner of Education dismissed A.B.’s case. A.B. then appealed to the Appellate Division of the Superior Court of New Jersey.
The Appellate Division’s Decision
The Appellate Division rejected A.B.’s arguments and affirmed dismissal of her appeal to the Commissioner of Education.
The Appellate Division found that the inquiries by the Clifton Board of Education and the response by the Hackensack Board of Education were appropriate and expressly required by the Pass the Trash Law. The Court rejected A.B.’s arguments that she was not subject to an investigation of sexual misconduct. The Court found that there was clearly an investigation, and that it was ongoing when she resigned. The Court noted that the Pass the Trash Law did not require inquiries or responses only on findings of fault, but rather on the existence of investigations. It did not require a board of education providing the information to hold a hearing to determine whether the allegations were true, only to report on whether there was an investigation.
The Court also found that the allegations were about conduct which could have fit the definition of misconduct if true. The Pass the Trash Law defines “sexual misconduct” as
[A]ny verbal, nonverbal, written, or electronic communication, or any other act directed toward or with a student that is designed to establish a sexual relationship with the student, including a sexual invitation, dating or soliciting a date, engaging in sexual dialogue, making sexually suggestive comments, self-disclosure or physical exposure of a sexual or erotic nature, and any other sexual, indecent or erotic contact with a student.
The Court also rejected A.B.’s arguments that she was required to receive notice of the prospective employer’s inquiry and the former employee’s response. This was not required by the Pass the Trash Law, the Appellate Division explained.
Finally, the Appellate Division rejected A.B.’s argument that the Pass the Trash Law should not apply to her because she resigned before the Law was enacted, and that it was subject to a settlement agreement with a confidentiality provision. First, the Court found that the Pass the Trash Law expressly applied to all employment within the twenty years before it was passed, ie., back to 1998, and therefore should be applied retroactively. The Court also found that the Legislature did not intend for this information to be shielded by a confidentiality provision in a settlement agreement.
As a result, the Court found that the Hackensack Board of Education had exactly complied with its obligations under the Pass the Trash Law, no more, no less. It therefore affirmed the dismissal of A.B.’s appeal.
The Takeaways
- First, be very careful what you post on social media. It is grounds for termination for inappropriate content.
- Second, it is important to remember that the New Jersey Commissioner of Education and the Appellate Division both explained that there was no finding that A.B. had done anything wrong. It wasn’t a finding of fault that was required to trigger the Pass the Trash Law, it was merely the allegation and investigation.
- Third, a confidentiality provision in a settlement agreement will probably not bar disclosure.
- Fourth, it is important to remember that the Pass the Trash Law has teeth, and it follows the employee for the rest of their career as a New Jersey teacher.
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