On May 20, 2022 the Appellate Division of the Superior Court of NJ, in case brought against AtlantiCare Med. Sys., upheld the termination of an employee because of her posts to Facebook on views she held regarding the Black Lives Matter movement. This matter involved a private employer who terminated one of its at-will employees for posting “racially insensitive comments” about the Black Lives Matter movement on her personal Facebook account. The issue raised was whether the First Amendment or Article I, Paragraph 6 of the New Jersey Constitution prevents a private employer from terminating an at-will employee for posting about the Black Lives Matter movement on her Facebook account. It also raised the issue of whether a “Public Policy Exception” to terminating an at-will employee existed in this matter.
The employee’s Facebook profile stated her employment position with the employer. The employee posted the comments to Facebook during the height of the nationwide protests concerning the murder of George Floyd by police. The employee posted that she believed the Black Lives Matter movement "causes segregation," found the phrase "Black Lives Matter" to be "racist," and asserted that Black citizens were "killing themselves." The employer discovered the comments and fired her as a result.
An administrator for the employer discovered the employee’s Facebook posts, and the employer suspended her on June 17, 2020. On June 23, 2020, the employee plaintiff was terminated, and the reason given for the termination was due to a failure to uphold the employer’s values and exhibiting bad judgment. The employee filed a complaint against the employer and alleged her termination was retaliation for her exercise of her rights protected by the free speech amendment and the equivalent entitlement under the New Jersey Constitution. (On appeal, she also charged the termination was in direct violation of a clear mandate of New Jersey public policy.)
The employer filed a motion to dismiss on grounds that a wrongful termination complaint against a private employer cannot be based on a constitutional free speech claim where there is no state action, i.e., the employer was not a governmental entity, but a private entity, and only the government can violate one’s Constitutional rights.
The trial court upheld the termination and dismissed the employee’s complaint. The trial court held the employer did not violate the First Amendment and Article I, Paragraph 6 of the New Jersey Constitution, because they did not bar terminating an at-will employee for these types of posts and the Court upheld the termination. The employee plaintiff appealed.
In the appeal, the opinion of the Appellate Division was delivered by Judge Hass, P.J.A.D. The Appellate court agreed with the trial court and upheld the termination. The Appellate Division noted that the employer had a written social media policy that covered its employees' use of social media, both those controlled by the employer, as well as the employees' personal social media platforms. The policy stated that while the employer encourages its employees, “to participate in communication through online social media, it is important for those who choose to do so to understand what is recommended, expected, and required when they discuss AtlantiCare-related topics, whether at work or, under certain circumstances, on their own time. AtlantiCare employee use of social media activities, inside or outside of the workplace, has the potential to affect AtlantiCare employee job performance, the performance of others, AtlantiCare's brand and/or reputation, and AtlantiCare's business interests.” The written social media policy explained that each employee was "personally responsible" for the content they posted on social media platforms.
On appeal, the employee raised a public policy argument, arguing that the trial court erred because her firing was contrary to a clear mandate of public policy set forth in the First Amendment of the United States Constitution and its NJ counterpart.
The Appellate Court stated that historically under the common law, in the absence of an employment contract, employers or employees were free to terminate the employment relationship with an at-will employee or without cause, but in 1959, courts across the country began to hold that firing an employee for 'bad cause' might be actionable in some instances. The Court quoted Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980), which created a “public policy” exception to the at-will doctrine in NJ as to termination. The Pierce Court held that wrongful discharge cases must balance the interests of the employee, the employer, and the public. The Court stated that in most cases of wrongful discharge, the employee must show retaliation that directly relates to an employee's resistance to or disclosure of an employer's illicit conduct: "In some cases, however, the employee may show that the retaliation is based on the employee's exercise of certain established rights, violating a clear mandate of public policy." MacDougall v. Weichert, 144 N.J. 380, 393 (1996).
The Appellate Court cited numerous cases where there was such a violation of public policy, sustaining a plaintiff's claim, such as being terminated due to either employment discrimination or retaliatory discharge, either of which would violate clearly mandated public policy. Here, the Appellate Court upheld the termination, finding no public policy exception applied in this matter, citing numerous other decisions around the country similarly arriving at the same legal conclusion.
The holding in the Appellate Court’s Opinion stated, “absent specific statutory employee protection or state action, an employer does not violate a clear mandate of public policy by terminating an employee for the employee's speech.”
Many erroneously think that the First Amendment to the Constitution gives legal protection even to private employees as to all kinds of speech. The National Labor Relations Act generally provides a very narrow exception to this rule in that it protects political workplace speech by non-supervisory employees where the intention is to protect union-organizing efforts and union-related speech and not general opinions. Even then, any employee should proceed with extreme caution in any speech posted on social media platforms. For public employees who do have free speech rights under the First Amendment to the Constitution, the free speech is not unqualified; there are acceptable and non-acceptable parameters which are beyond the scope of this discussion.
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