Kimberly Hester, 27, of Michigan, said she was disciplined after she refused to show her employer her Facebook page without union representation. (Courtesy Kimberly Hester)
When Kimberly Hester of Cass County, Mich. posted with permission a photo a coworker sent her on Facebook, she didn't think it would offend the public school where she taught, or lead the superintendent to demand access to her Facebook page. But a photo of her coworker with her pants down did just that.
Hester, 27, was a full-time peer professional, or teacher's aide, at Frank Squires Elementary in Cassapolis, Mich. for about two years. A year ago, in April 2011, a coworker texted a photo showing herself with her pants around her ankles, with the message "thinking of you" as a joke.
"She's actually quite funny. It was spur of the moment," adding that there was nothing pornographic about the picture, which only showed the pants, part of her legs, and the tips of her shoes.
"I couldn't stop laughing so I asked for her permission to post it [on Facebook]," she said. The coworker agreed. Hester said all this took place on their own time, not at or during work.
Hester said a parent (not of one of her students) showed the photo to the superintendent, calling it unprofessional and offensive. Hester said the photo could only be viewed by her Facebook friends. The parent happened to be a family friend.
In a few days, the superintendent of Lewis Cass Intermediate School District, Robert Colby, asked Hester to come to his office.
"Instead of asking to take the photo down and viewing it from my friend's point of view, they called me into the office without my union," she said. Hester is a member of the Michigan Education Association, which represents more than 157,000 teachers, faculty and support staff in the state, according to its website.
The superintendent asked that she show her Facebook profile page.
The Facebook photo in question (Courtesy Kimberly Hester)
"I asked for my union several times, and they refused. They wanted me to do it right then and there," Hester said.
Colby did not return a request for comment.
A letter from the Lewis Cass Intermediate School District said, "…in the absence of you voluntarily granting Lewis Cass ISD administration access to you[r] Facebook page, we will assume the worst and act accordingly."
Hester's story echoes reports of employers asking job applicants for access to their Facebook pages.
Robert McCormick, a professor at the Michigan State University College of Law, said normally in the private sector and in a non-union stetting there is nothing to prevent an employer from asking for access to a Facebook page. But in a private sector setting, if an employee is summoned to a disciplinary meeting with the employer and requests union representation at that meeting, it is an unfair labor practice to refuse that representation.
"I would be surprised if Michigan law did not follow the same standards," he said.
Louis Chism, the school district's special education director, wrote in an email to ABC News, "At this time it would be inappropriate for me to comment on any aspect of this situation."
Hester said she and her coworker pictured in the photo were put on seven weeks of paid administrative leave, and they were eventually suspended for ten days. She said the coworker, who was up for tenure, was forced to resign.
Bill Young, an attorney representing Hester through the Michigan Education Association, said Hester's case will go before a private arbiter under the collective bargaining agreement in late May. Young said the coworker has taken another job.
Hester said she returned to work in September when the school year began. While Hester previously worked assisting a teacher for emotionally impaired students in kindergarten through the fourth grade, she was assigned another program and was placed under a strict directive. She said was instructed not to speak with coworkers unless it was about a student and could not go to the bathroom before asking.
"I was the only one in the whole building who had documented breaks," she said. "Eventually I got a directive that said I could not miss any school."
She said her contract allowed her 14 paid days off but the school would not let her use them. She said she was also directed to read books about communication and to take 49 online classes. She said that and the work environment at school took a toll on her emotionally in November 2011.
"I had a nervous breakdown, went to hospital and was put on medication," said Hester, who has been on unpaid leave since November.
Hester said she went on leave through the Family and Medical Leave Act at first. Then, she said, the superintendent refused to give her benefits. Next week she will have a pre-trial hearing for worker's compensation. She is demanding her job back and back pay, $15,000 to date.
"I love my job. I'm great at my job and my students are suffering without me. They still have issues every day and it's not fair that I had to be ripped away from that."
She also wants an apology from the school.
"My name has been dragged through the mud. Still, to this day, I'm under a directive where I cannot speak to my coworkers. People think I'm a horrible person and I'm a criminal."
Hester said she doesn't "want a lot" though she lost her house this year. She also said her three children, ages 8, 5, and 4, have suffered because she does not have a steady income.
"I can't get another income because I'm on this medication," she said. "I break out in hives. Emotionally, this is draining to me."
McCormick said most labor agreements involving unions indicate an employee can be disciplined or discharged for proper or just cause, or similar language.
"The question for the arbitrator is whether the district had just cause," he said, adding that the burden is most likely on the school district to prove so.
"When an employee is being disciplined for off-duty conduct or misconduct, the employer bears a pretty substantial burden to show that the alleged conduct bore some kind of connection to her ability to perform her work or directly in an adverse way to provide education services to the community," he said. "They are going to have to show what she did gave her just cause to terminate her."
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