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.

McVey argued on appeal that she had the right to make her remarks about the BLM movement under the United States and New Jersey Constitutions. As the appellate court framed the issue: “The question posed here is whether the First Amendment of the United States Constitution or Article I, Paragraph 6 of the New Jersey Constitution  constituted a violation of a clear mandate of public policy under Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 65-66 (1980).  In ruing against McVey the appellate court found there was no requisite state action present in this case. AtlantiCare is a private employer and terminated McVey, who was an at-will, private employee. *12. As to this latter public policy argument, the appellate court concluded that no New Jersey court has held that a private entity that encroaches upon a private individual’s constitutional rights to free speech has violated a clear mandate of public policy. Id. Courts in out-of-state jurisdictions are in accord. Id. Therefore, the dismissal of McVey’s complaint was affirmed. *13.

A different result may have occurred had McVey been an employee of a public entity or a union member. If she had been a federal, state, or municipal employee requisite state action would have existed when McVey was fired possibly raising the abridgment of her civil rights by the exercise of governmental power.  If she was a member of a union, she may have had recourse under the National Labor Relations Act which governs the relationship between the company’s management and unions, protects the rights of employees to communicate with each other about the terms and conditions of their employment.

If you believe you have been wrongfully discharged in violation of federal or New Jersey state law, do not hesitate to call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.

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