The New Jersey Appellate Division affirmed an employer’s decision to terminate an employee over her comments on a Facebook post.
In a recent matter, an employee of a New Jersey health system was terminated after her employer discovered Facebook posts where the employee made several insensitive posts about the Black Lives Matter movement.
Employer Social Media Policy
The health system’s employee handbook contained a comprehensive social media policy which stated that, among other things, each employee was “personally responsible” for the content that they posted on social media. It further stated that employees and patients:
“reflect a diverse set of customs, values, and points of view. Do not be afraid to be yourself, but do so respectfully. This includes the obvious (no ethnic slurs, personal insults, obscenity, etc.) but also proper consideration of privacy and of topics that may be considered objectionable to inflammatory—such as politics or religion…”
The employee brought a wrongful termination claim against the health system alleging that the employer violated a clear mandate of public policy under the First Amendment to the New Jersey Constitution. The health system filed a motion to dismiss, arguing that there was no state action, so the employee could not have a free speech claim. The trial court agreed and dismissed the employee’s lawsuit, and the decision was affirmed by the Appellate Division. Both courts cited to the long-standing law across the country that an employee does not have a cause of action against a private sector employer who terminates their employment because of the exercise of the employee’s constitutional right to free speech. In order for a person to have a cause of action for the violation of their First Amendment rights, there must be a government action; with limited exceptions. A private employer cannot violate employees’ First Amendment rights.
However, employers must be aware of employees’ “Section 7 rights” named for that section of the National Labor Rights Act (NLRA). Section 7 protects employees’ rights to “engage in concerted activities for the purpose of…mutual aid or protection.” In brief, employers must not prohibit employees from speaking with each other—whether in person or electronically—about topics involving the terms and conditions of their employment. While NLRA issues most often involve unionized employees, employers with non-union employees are also subject to and should be mindful of the law.
Takeaway
The health system case is an excellent reminder that while private employers may terminate employees for their off-duty speech, that freedom is not unlimited and should be guided by a strong and well-drafted social media policy which takes into consideration private employees’ protections under the NLRB. Employers should review social media policies to ensure that employees are aware that social media posts can affect their jobs.
If you have any questions regarding this case or would like assistance reviewing your employment practices and policies, contact Frier Levitt. Our attorneys will provide advice and counsel tailored to your unique situation and needs.
