Prior to the advent of social media, employers were generally comfortable drawing a bright line between what employees did on their own time and workplace misconduct. Those bygone times, however, have been replaced by a modern era wherein employers are forced to apply employment laws created before the personal computer to their workforce located in an increasingly virtual world. Courts are addressing employment matters involving speech on social media at a progressively increasing rate. In this edition of #NoFilter, we will discuss a state court decision from New Jersey involving outside-of-work social media that disrupted business interests, ran counter to the employer’s values, and impacted the workplace. In short summary, constitutional claims of free speech are limited to public employment or government action against citizens, not private employment. 

FACTUAL BACKGROUND

Heather McVey (McVey) was a privately employed nurse at AtlantiCare Medical System Incorporated and Geisinger Health System Incorporated (AtlantiCare), which were both private health care companies. McVey was hired in 2005 and became the corporate director of customer service for AtlantiCare around the time of the Black Lives Matter protests in May, following the death of George Floyd by police officers in Minneapolis, which sparked hundreds of thousands of people to gather on the streets in support of the Black Lives Matter, movement. Outside of work, McVey maintained a personal Facebook account that listed that she was an employee and corporate director for AtlantiCare. Following the protests in Minneapolis, McVey posted to her public Facebook account stating she found the phrase “Black Lives Matter,” to be racist, and that the movement “causes segregation,” claiming further that black citizens were “killing themselves.” These comments were discovered by AtlantiCare and regarded as highly discriminatory and racially insensitive, resulting in McVey’s termination for two reasons:

1. Repeated instances of poor judgment and 

2. Failure to uphold AtlantiCare values.

In response to her termination, McVey filed a lawsuit against AtlantiCare alleging violations of the constitutional right to free speech and “equivalent entitlement,” under the New Jersey Constitution. McVey sued for “compensatory, consequential and punitive damages,” demanding immediate reinstatement to her position with AtlantiCare. The trial court initially dismissed the lawsuit for failure to state a claim, and McVey appealed to the Superior Court of New Jersey.

THE SUPERIOR COURT OF NEW JERSEY’S OPINION

The State of New Jersey has no statute providing for private employer liability in cases where employees exercise constitutionally protected free speech. As a result, the Superior Court of New Jersey relied on multiple out-of-state court decisions with analogous facts in analyzing whether a First Amendment claim or constitutional constraints applying to government actions could apply to private sector employers. The Court noted the out-of-state legal authorities similarly held that constitutional free speech protects individuals from government action, but does not protect private employees from actions taken by their private employers. Therefore, private employers cannot be liable for First Amendment claims in the termination process, especially when said speech contradicts the values and image of the private company. The Superior Court of New Jersey further noted the same analysis would not apply to governmental employers, including actions against public workers.

Applying these principles to McVey’s social media posts expressing her opinions on the Black Lives Matter movement, the Court found that even if her speech were federally protected by the First Amendment of the Constitution of the United States, private employees like McVey are unable to bring a wrongful termination claim against their private employer on the basis of constitutionally protected free speech. Simply stated, the Court held, “[t]here is no state action present in this case,” and that her free speech claim fails accordingly.

In addition to the U.S. Constitution, McVey also argued her speech was protected by Article 1, Paragraph 6 of the New Jersey Constitution, providing that free speech and freedom of the press are protected in the State of New Jersey. McVey argued she had the “right to make her remarks about the Black Lives Matter movement under the United States and New Jersey Constitutions,” and that even if her speech was not specifically protected by either the state or federal constitution, her termination violated New Jersey the public policy because of the State of New Jersey insofar as it should prohibit employers from terminating employees for speech it did not agree with. The Court disagreed. In rejecting this argument, the Court held “McVey’s slight interest in publicly making her position on the Black Lives Matter movement known against AtlantiCare’s strong interest in protecting and fostering the ‘diverse set of customs, values[,] and points of view of its physicians, staff, volunteers, vendors, customers[,] and partners[.]’ Under the circumstances presented in this case, AtlantiCare did not violate a clear mandate of public policy when it terminated McVey’s employment.”

Practical Advice for Employers

This case illustrates that constitutional free speech protection generally does not protect private employees from work-related consequences of their speech. Just because free speech is guaranteed under the U.S. Constitution does not mean a private employee is safe from consequences of their own speech, especially when that speech violates preexisting conduct policies disseminated by the employer. As a general rule for evaluating speech on social media, if the comments at issue were made between employees at the water cooler in the office would violate an employer’s harassment and discrimination policies, then the exact same comments made on social media between the employees should reach the same result once the employer becomes aware of them. Employers considering discipline for misconduct occurring on social media outside of work should ask themselves a few basic questions prior to taking action:

Do I have a copy of the tweet or post?

Social media is user-controlled content and can be easily deleted when an employee learns they are under investigation. Preserving this evidence prior to taking action is critical to any complete investigation. 

Does the post relate to working conditions or wages?

The National Labor Relations Act prohibits employers from taking action against employees acting together to improve their wages, hours, and/or conditions of employment. 

Would the post be considered harassment if said face-to-face?

Applying an employer’s harassment and discrimination policy to offensive conduct requires evaluating the content and context of the speech. Consistently evaluating offensive conduct and taking action to correct it, irrespective of the venue where the conduct occurred, will help ensure uniform application of the employer’s policies and help the defendant against subsequent litigation.

Are we being consistent?

Consistent application of an employer’s policies is the best way to both prevent and defend against employment discrimination lawsuits. Ensuring an employer has equally applied its policies in like situations will be an important fact at all stages of litigation. 

Lastly, please note that some states have enacted legislation specifically protecting off-duty conduct (e.g., Colorado) or codifying First Amendment protections as applied to private employers (e.g., Connecticut).  As a result, an individual analysis should be conducted for any speech-related issue consistent with applicable federal and state law.