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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