In Sunday’s Times, there’s an article written by Randall Stross and titled “How to Lose Your Job on Your Own Time.”  It deals with an issue that’s becoming one of the hottest employment law issues going: Internet privacy.  In particular, it deals with whether employers should be able to take what an employee (or a job applicant) has posted online, MySpace let’s say, and use it as a basis for firing or not hiring.

The article highlights the plight of a young woman who was dismissed from her university’s student teaching program at a nearby high school and denied her teaching credentials because of a photograph found on the student teacher’s MySpace profile.  The photograph was of the student teacher at a costume party (which had nothing to do with her job) “with a pirate’s hat perched atop her head [while sipping] from a large plastic cup whose contents cannot be seen.”  Finding the photograph “to be surprisingly innocuous,” Mr. Stross uses his article to argue for a line “that demarcates the boundary between work and private life,” so that “what an employee does after hours, as long as no laws are broken, is none of the company’s business.”  With all due respect to Mr. Stross and the Times, it ain’t quite that simple.

What’s striking about Mr. Stross’ argument is that he finds no problem with the caption given to her photograph by the student teacher:  “drunken pirate.”  That’s who we want student teaching at a high school–and then teaching at a high school?  Apparently so, according to the student teacher, who has filed suit on the basis that her right to free expression under the First Amendment was violated.  Never mind the school’s position that the photograph was (1)”unprofessional” and (2)could “promote under-age drinking.”  Well, duh, on both counts.

Teaching is serious business.  Schools have a hard enough time with student behavior without teachers encouraging bad behavior, whether they do it explicitly or implicitly or whether they do it at school or away from school.  Every day, there’s  a behavior problem at all schools.  Most of the time, it’s a minor annoyance, but not always.  Thus, metal detectors in some schools.  And worst case, Columbine.  Teen drinking is thought by some to be at epidemic levels.  DUI’s among teens proliferate, and hardly a week goes by without a report of a teen being killed in an alcohol-related car wreck.  I suspect Mothers Against Drunk Driving just might find a problem with the photograph in question.

Of course, the debate captured by the Times article applies to all kinds of employers and employees.  The issue of whether an employer can regulate the off-duty conduct of employees has always been contentious.  Individual privacy or personal freedom is usually at the center of the contention.  The Internet and the way it’s used have made this issue hotter than a firecracker in the employment law arena.  It’ll stay hot.  As much as Internet use is changing all the time, it may never be resolved.  In today’s world, more than ever, there’s hardly a simple line of demarcation between one’s work and one’s private life.

In my opinion, an individual has the freedom to post anything on the Internet, child pornography and trade secrets being notable exceptions.  But once you put it out there for everyone to see, it makes all the sense in the world–and it’s legal except in rare situations–for your employer to be able to use whatever you’ve posted to take action against you, particularly if the employer reasonably decides that what you’ve posted is job-related.  Call me old-fashioned.  But a photo of a costumed high school teacher sipping from a big cup and describing herself as a “drunken pirate” is about as job-related as it gets.