Written by Stephen Trimboli

Do the federal or state constitutions prevent a New Jersey business owner from terminating employees for their off-duty speech? According to a new state court decision, the answer is “no,” at least when the off-duty speech is harmful to the business owner’s interests.

McVey v. AtlantiCare Medical System Inc. involved a medical system’s Corporate Director of Customer Service. The medical system’s social media policy warned that social media activity, even outside of work, “has the potential to affect AtlantiCare employee job performance, the performance of others, AtlantiCare’s brand and/or reputation, and AtlantiCare’s business interests.” It further warned, “When you identify yourself publicly as being employed by … AtlantiCare, ensure your profile and related content is consistent with how you wish to present yourself with colleagues and clients.” The policy specifically warned employees to avoid “topics that may be considered objectionable or inflammatory – such as politics and religion.”

The Director had a personal Facebook page under a pseudonym; however, her profile contained her photograph and listed her profession as a “Corporate Director at Atlanticare Regional Medical Center,” thus directly linking her personal Facebook page to her job. Shortly after the killing of George Floyd on May 25, 2020, and during the heat of the resulting nationwide protests, the Director involved herself in a Facebook exchange concerning Black Lives Matter. Another Facebook user had asked whether others believed the name of the movement to be racist. The Director answered, “Yes, I find it racist. Yes, it bothers me. {The name} causes segregation. Have you ever hear{d} of ‘white lives’ matter or ‘Jewish’ lives matter. No. Equal opportunity.” She added that black Americans were “killing themselves,” and that although she “supported all lives,” that “as a nurse they all matter,” and that she did not discriminate, she added that she did not “condone the rioting” that occurred in response to “’this specific {Black man’s} death.’”

Needless to say, given the timing of these comments and their tone, one could clearly find them to be “objectionable or inflammatory.” Once AtlantiCare learned of the posts the Director was first suspended and then terminated. She responded by suing AtlantiCare for allegedly terminating her “in direct violation of a clear mandate of public policy,” claiming that her comments were protected by the First Amendment and the equivalent provision of the New Jersey Constitution.

In affirming the dismissal of the Director’s complaint, the court in McVey held that an at-will private employee of a private business could not assert such a claim. In the absence of state action, a private employer does not violate a clear mandate of public policy by terminating an employee for the employee’s speech. The court also noted that the Director had been given a copy of the AtlantiCare’s social media policy, which expressly warned her to avoid objectionable or inflammatory topics “such as politics and religion.”The timing of the Director’s comments and her public identification as a Corporate Director opened AtlantiCare “to the possibility of unwanted and adverse publicity and criticism.”

Business owners have the right to protect their business reputations, to create and sustain a public image, to avoid “unwanted and adverse publicity,” and to expect their employees to be supportive of these efforts. AtlantiCare had a social media policy that made its expectations clear. An employee who knowingly chooses to violate the business owner’s expectations can claim no protection under a “free speech” theory. A private business is not the government.

This summary is meant for informational purposes only and is not intended as legal advice. If you require advice on this or any other legal issue pertaining to employment, contact our office for an appointment.

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