New York school teacher Christine Rubino fared well with her judicial challenge to her wrongful termination. Ms. Rubino taught fifth grade at Public School 203 in Brooklyn, a position she held without incident for many years. The day after a student from another New York school drowned on a beach field trip, Rubino vented on Facebook: “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!” When a friend responded that Rubino would let a student float away, Rubino replied: “Yes, I wld (sic) not throw a life jacket in for a million!!”
One of Rubino’s Facebook friends reported Rubino’s posts to the school administrators, who terminated Rubino from her teaching position. However, the reviewing court had some sympathy for Ms. Rubino. While finding her reference to the prospective death of a child as “repulsive,” the court found wrongful termination to be disproportionate to the offense, noting:
Facebook has rapidly evolved from a platform used solely by American college students to a world-wide social and professional network. . . . Indeed, with Facebook, as with social media in general, one may express oneself as freely and rapidly as when conversing on the telephone with a friend. Thus, even though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable.
Rubino v. City of New York, 34 Misc. 3d 1220(A), 950 N.Y.S.2d 494 (Sup. Ct. 2012), aff’d, 9813, 2013 WL 1876235 (N.Y. App. Div. May 7, 2013).
Employers and employees alike should exercise caution in their use of social media. The employee should bear in mind that, like diamonds, “Facebook is forever.” Although posts may seem to be fleeting, they could come back to haunt the employee months or years later. However, the employer must also bear in mind that employment decisions based upon scrutiny of an employee’s social media sites could intrude upon both the employee’s privacy and other statutory rights.
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