A common misconception is that the First Amendment protects an employee from adverse employment actions based on something the employee said.
While the First Amendment does protect freedom of speech, the Amendment contains an important qualifier. “Congress shall make no law . . . abridging the freedom of speech . . . .” In other words, the protection is against government interference with, or restrictions on, speech and does not apply to private employers regulating employee speech.
In the recent Appellate Division decision, McVey v. AtlantiCare Medical System, employee Heather McVey challenged AtlantiCare’s decision to terminate her based on her violation of its social media policy. The policy provided, among other things, that employees should be cautious about what they post online, especially where they identified as being affiliated with AtlantiCare, as employees are regarded as a reflection of the company brand/reputation.
AtlantiCare determined that McVey violated this policy by making a post on Facebook—where she was identified as a corporate director at AltlantiCare Regional Medical Center—that was critical of the Black Lives Matter movement. It should be noted that McVey’s profile was under the name of “Jayne Heather;” however, this did not factor into the Court’s analysis and the Appellate Division upheld the termination.
McVey’s claims were dismissed at the trial level because there was no government action, and New Jersey has not adopted a cause of action for private employers regulating speech.
McVey appealed the dismissal, arguing that her termination was contrary to the public policy underlying the First Amendment and New Jersey’s constitutional provision. She asserted that “her right to speak her mind outweighed AtlantiCare’s rights to promote an inclusive, non-divisive environment for its clients and employees.” The Appellate Division was not persuaded.
What does this mean for employers? This decision underscores the importance of having an up-to-date social media policy. Social media is constantly evolving: MySpace and BlogSpot were replaced by Facebook, Instagram, and Twitter, which TikTok and BeReal have since replaced. Each of these social media sites/apps function differently.
To combat the ever-changing social media landscape, employers should endeavor to draft broad social media policies that clearly outline their expectations for what employees will or will not post and how employees should list their company affiliation, if at all. Employers should also frequently revisit their social media policies and ensure they haven’t become outdated.
Please reach out to the Connell Foley Labor and Employment group for help drafting or revising the social media policy for your business.