Employee Rights Litigation Based Upon Scrutiny of an Employee’s Social Media Sites Could Be Defensible; an Employment Law Lawyer Could Tell You

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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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When an Employee is Fired for a Facebook Posting, is a Wrongful Termination Lawsuit Appropriate? Only an Employment Law Attorney Can Say

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Imagine making a joke on Facebook some weeks before starting a new job, believing the joke was seen only by your friends and family, and then, six months later, being fired by your new employer based upon this pre-employment Facebook post. That is exactly what happened to Toby Sutton, the former funeral science director for Arkansas State University. Mr. Sutton signed a contract with Arkansas State in May of 2010 for the 2010-11 academic year. Once on the job, Sutton allegedly discovered that the university was not complying with the requirements of the American Board of Funeral Science Education, the entity that accredits funeral science programs. Sutton began asking for documents relating to the university’s failure in this regard. In November, two university administrators summoned Sutton to their office, and fired him for a Facebook post Sutton had made months earlier, in June of 2010, as follows:  “Toby Sutton hopes this teaching gig works out. Guess I shouldn’t have cheated through mortuary school and faked people out. Crap!” Sutton claimed that his post was a “joke” made to his friends on Facebook, and that the real reason for his termination was his questioning of the university’s failure to follow the accreditation rules (whistleblowing). Nonetheless, he found himself unemployed.

In a subsequent lawsuit, Sutton claimed that the public university and its officials had violated his due process rights, and the federal district court set the matter for trial against the officials. The United States Court of Appeals for the Eighth Circuit, however, found that the university officials were entitled to qualified immunity in their individual capacities. Sutton v. Bailey, 702 F.3d 444 (8th Cir. 2012).

This decision reflects the significant issues that Facebook and other social media can play in employment law. Facebook clearly blurs the judicially comfortable public/private distinction of earlier jurisprudence, as well as an employee’s rights with respect to social media activities. On the one hand, if Facebook posts are deemed “private” communications, then the right of an employer to peruse an employee’s Facebook posts may be constrained by common law privacy rules, an issue not yet definitively addressed by courts. Conversely, if courts view Facebook as a “public” forum, then the speakers may be protected by the First Amendment right of free speech, particularly for public employees. In addition, recent rulings and reports from the National Labor Relations Board have suggested that at least some work-related commentary on Facebook and similar sites may be considered protected “concerted activity” among employees.

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