Be careful what you post on social media sites on the internet because it may cost you your job. Recently, our New Jersey Appellate Division issued an opinion holding that neither the First Amendment nor Article I, paragraph 6 of the New Jersey Constitution prevents a private employer from terminating an at-will employee for posting racially insensitive comments about the Black Lives Matter (BLM) movement on her personal Facebook account.
In McVey v. AtlantiCare Medical System Incorp, et al., 2022 N.J. Super. LEXIS 70 * (App. Div., May 20, 2022), McVey, a nurse who rose through the ranks at Atlantic Care Regional medial Center to become its Corporate Director of Customer Service. Using her private Facebooks account, McVey posted that she found BLM to be racist arguing that it causes segregation writing, “Have you ever hear[d] of ‘white lives’ matter or ‘[J]ewish’ lives matter[?] No. Equal opportunity.” According to the court opinion she further stated: “[T]hey are not dying . . . they are killing themselves.” McVey later posted that she “support[ed] all lives . . . as a nurse they all matter[,] and [she] d[id] not discriminate.” McVey added she did “not condone the rioting that ha[d] occurred in response to ‘this specific [B]lack man[‘]s death.'” *5. An AtlantiCare administrator later discovered McVey’s Facebook posts and she was later fired following the completion of an internal investigation.
McVey filed a wrongful discharge lawsuit claiming she was unlawfully punished for exercising her federal and state constitutional rights to freedom of speech. AtlantiCare filed a motion to dismiss arguing that a wrongful termination complaint against a private employer cannot be based on a constitutional free speech claim in cases where, as here, there is no state action. *6-*7. Following argument, the trial court rendered an oral decision, accepting AtlantiCare’s contention and dismissing McVey’s complaint. McVey appealed.