Off-Duty Speech Can Affect Both Employee and Employer

Off-Duty Speech May Have Consequences for both Employee and Employer

Heather McVey worked for a private company, AtlantiCare Medical System and Geisinger Health System (collectively “AtlantiCare”). McVey was suspended and then terminated for statements she made about the Black Lives Matter Movement on her personal Facebook account. After she was terminated for those comments, McVey sued, claiming that her former employer had violated her First Amendment right to free speech. 

According to AtlantiCare, a Facebook user asked McVey “Do you think the phrase ‘Black Lives Matter’ is racist, or does it bother you?”

McVey answered “Yes, I find it racist. Yes, it bothers me. Black Lives [M]atter causes segregation. Have you ever heard of “white lives matter or Jewish lives matter? No. Equal opportunity.” McVey went on to state that Black people “are not dying… they are killing them-

Selves.” She later wrote that she “supported all lives … as a nurse they all matter, and she did not discriminate” and she did “not condone the rioting that had occurred in response to this specific Black man’s death.”

As McVey’s Facebook profile prominently stated that she was an “AtlantiCare Corporate Director,” and a former AtlantiCare nurse, AtlantiCare complained that McVey’s comments did not reflect its values, and the comments directly impacted the public perception of the company. As an AtlantiCare employee, she was bound by AtlantiCare’s written social media policy, assuming the policy was lawful. 

According to the company, McVey was terminated for her “repeated instances of poor management judgment – a failure to uphold AtlantiCare values.” In a footnote, Judge Haas noted that AtlantiCare’s counsel stated that McVey was terminated “because she posted on her social media a clearly racist dog whistle post, which was inconsistent with the vision, mission, and core values of AtlantiCare.”

McVey asserted that she was terminated in retaliation for merely exercising her right to free speech under Article I, paragraph 6 of the New Jersey Constitution which she contended violated public policy and gave rise to a Pierce claim.

The trial court dismissed the complaint, finding that private employers were not precluded from terminating an employee because of the content of their speech. The Appellate Division affirmed the trial court’s ruling.

 

Reaching a Verdict

In this case, the basic principle that private employers are not bound by the same free speech protections that apply to public employers is reaffirmed. Finding no New Jersey decisions on point, the trial court cited decisions from California, Idaho, Ohio, Michigan, and Connecticut for the proposition that a private employee was not entitled to free speech protections and that a private employer could use the private employee’s speech as a basis for terminating the employee. According to the Appellate Division, McVey’s interests in private freedom of speech must be balanced against the interests of the company in enforcing policies that protect their workplace and brand. Based on this balancing, the Appellate Division ruled that even if First Amendment protections applied to her private employment, the content of McVey’s speech fell outside those protections and that “absent specific statutory protection or state action, an employer does not violate a clear mandate of public policy by terminating an employee for the employee’s speech,” justifying her termination.

 

A Pierce Claim

McVey asserted a Pierce claim, arguing that her termination violated a clear public policy mandate (i.e., her constitutional right to free speech) and that, therefore, the trial court erred in dismissing her complaint.

In a Pierce claim, an employee claims retaliation for asserting established rights, resulting in negative treatment. Even in the context of the right to free speech, the Appellate Division noted that the employee must prove that the employer’s conduct was a violation of a “clear mandate” of public policy. “The mandate of public policy must be clearly identified and firmly grounded.” The Appellate Division also noted that it “must be one that on balance is beneficial to the public.” In addressing the balancing of interests required by Pierce, McVey asserted that her right to speak her mind about the Black Lives Matters movement outweighed her employer’s interest in maintaining a social media policy as set forth above. In affirming the dismissal of her complaint, the court noted that McVey’s allegedly violated right to free speech as an at-will private employee was individual and was outweighed by the broad public impact of AtlantiCare’s social media protections, thereby failing to rise to the level of a clear mandate of public policy.

The Appellate Division thus held “because McVey is a private employee who was terminated by her private employer, she cannot rely upon the free of speech provisions of the United States and New Jersey Constitutions to support a Pierce claim.”

 

Outcomes

In balancing McVey’s interests against AtlantiCare’s, the Appellate Division held that a private employer’s right to implement and enforce a policy to protect their employees and their brand outweighed the individual employee’s right to make statements about her own personal and political beliefs that were at odds with the employer’s policy and brand. The Court was persuaded by the detailed language of AtlantiCare’s social media policy which made clear their objectives of maintaining a workplace free of racist and offensive speech and protecting their brand and reputation.

However, even absent the clearly defined social media policy or any social media policy at all, the Appellate Division would likely have still affirmed the dismissal of her case because they deemed her speech to be racist and hence, outside the protections of the First Amendment in an employment disciplinary context. Finding that her comments crossed the line of decency, an employer, public or private, “clearly had the authority to fire McVey for making these remarks in a public forum while identifying herself as an AtlantiCare employee.” The Appellate Division relied upon Karins v. Atl. City for the proposition that racist remarks made by an off-duty employee are not protected by the First Amendment but can constitute unbecoming conduct

warranting the employee’s termination. As opposed to McVey in the private sector, Karins addressed a public employee and a public employer, but Karins still found the racist off-duty speech to justify termination.

 

Conclusion

According to the McVey opinion, when racist and offensive comments appear on one’s personal social media account, employees cannot hide behind the First Amendment when making them, whether they are employed by a private or public employer. To establish a clear company policy to protect their employees and their brand, employers should be guided to have a clearly defined social media policy and conduct regular training on the reputational function an employee has as a company representative and what is not acceptable speech under that policy. Employees must understand that if they propagate negative sentiments on their personal social media pages, it is likely to have a justifiably negative impact on their employment, especially where their employer’s name is clearly visible in the account profile and the speech falls outside previously established protections of the First Amendment in the context of employee discipline.