Date: June 17, 2022Attorney: Steven I. Adler and Brian M. Block

On May 20, 2022, the New Jersey Appellate Division held in a published opinion that an employer is free to terminate an at-will employee based on the employee’s racially insensitive remarks made on the employee’s private social media. An employee cannot bring a Pierce claim premised on the employee’s right to free speech under the Free Speech provisions of both the United States Constitution and the New Jersey Constitution.

In McVey v. AtlantiCare Medical System Inc., the plaintiff was a corporate director employed at-will who made several racially insensitive posts on Facebook during the Black Lives Matter protest movement in 2020. After she was terminated for those remarks, she filed a lawsuit against her former employer alleging a that her termination was contrary to a clear mandate of public policy—known as a Pierce claim—premised on the Free Speech provisions of the federal and state constitutions. The trial court dismissed her claim at the outset of the case.

On appeal, the Appellate Division affirmed. The court rejected the plaintiff’s argument that she had a constitutional right to make her comments about the BLM movement. The court explained that constitutional rights are violated only when there is state action, which was not present in the case because her employer was a private company that terminated its at-will employee. Surveying the legal landscape throughout the country, the court further noted that the vast majority of courts hold that a private employer does not violate a clear mandate of public policy when it terminates an employee based on the employee’s speech, absent some specific statutory employee protection.

The court also went on to hold, alternatively, that even if it were to balance the plaintiff’s free speech rights against the employer’s business interests, the outcome would be the same. The nature of her comments, which the court characterized as racist, cross-the-line and are an appropriate ground to terminate an employee who makes such comments in a public forum while identifying him or herself as an employee of the employer. And, even if the remarks were characterized as merely insensitive, she was still properly terminated. Indeed, she had been cautioned by her employer’s social media policy to avoid posting anything objectionable or inflammatory and that social media use had the potential to affect an employee’s job performance and the employer’s reputation. The employer had a strong interest in protecting and fostering a diverse workplace.

This decision is important for private sector employers. Such employers are protected from a Pierce claim for terminating an employee based on the employee’s objectionable speech. While speech—offensive or not—is generally protected by the First Amendment and the New Jersey Constitution against governmental retaliation, prosecution, or the like, it can certainly form the basis for a termination by a private employer. Although the decision involves contemporary facts, it is otherwise a reaffirmance of the longstanding employment at-will doctrine.

Mandelbaum Barrett PC’s employment practitioners stand ready to assist employers and executives navigate the challenging employment law landscape in New Jersey and beyond.