Do the federal or state constitutions prevent a New Jersey business owner from terminating
employees for their off-duty speech? According to a new state court decision, the answer is “no,”
at least when the off-duty speech is harmful to the business owner’s interests.

McVey v. AtlantiCare Medical System Inc. involved a medical system’s Corporate Director
of Customer Service. The medical system’s social media policy warned that social media activity,
even outside of work, “has the potential to affect AtlantiCare employee job performance, the
performance of others, AtlantiCare’s brand and/or reputation, and AtlantiCare’s business
interests.” It further warned, “When you identify yourself publicly as being employed by …
AtlantiCare, ensure your profile and related content is consistent with how you wish to present
yourself with colleagues and clients.” The policy specifically warned employees to avoid “topics
that may be considered objectionable or inflammatory – such as politics and religion.”

The Director had a personal Facebook page under a pseudonym; however, her profile
contained her photograph and listed her profession as a “Corporate Director at Atlanticare
Regional Medical Center,” thus directly linking her personal Facebook page to her job. Shortly
after the killing of George Floyd on May 25, 2020, and during the heat of the resulting nationwide
protests, the Director involved herself in a Facebook exchange concerning Black Lives Matter.
Another Facebook user had asked whether others believed the name of the movement to be racist.
The Director answered, “Yes, I find it racist. Yes it bothers me. {The name} causes segregation.
Have you ever hear{d} of ‘white lives’ matter or ‘jewish’ lives matter. No. Equal opportunity.”
She added that black Americans were “killing themselves,” and that although she “supported all
lives,” that “as a nurse they all matter,” and that she did not discriminate, she added that she did
not “condone the rioting” that occurred in response to “’this specific {Black man’s} death.’”

Needless to say, given the timing of these comments and their tone, one could clearly find
them to be “objectionable or inflammatory.” Once AtlantiCare learned of the posts the Director
was first suspended and then terminated. She responded by suing AtlantiCare for allegedly
terminating her “in direct violation of a clear mandate of public policy,” claiming that her
comments were protected by the First Amendment and the equivalent provision of the New Jersey
Constitution.

In affirming the dismissal of the Director’s complaint, the court in McVey held that an atwill
private employee of a private business could not assert such a claim. In the absence of state
action, a private employer does not violate a clear mandate of public policy by terminating an
employee for the employee’s speech. The court also noted that the Director had been given a copy
of the AtlantiCare’s social media policy, which expressly warned her to avoid objectionable or
inflammatory topics “such as politics and religion.” The timing of the Director’s comments and
her public identification as a Corporate Director opened AtlantiCare “to the possibility of
unwanted and adverse publicity and criticism.”

Business owners have the right to protect their business reputations, to create and sustain a
public image, to avoid “unwanted and adverse publicity,” and to expect their employees to be
supportive of these efforts. AtlantiCare had a social media policy that made its expectations clear.
An employee who knowingly chooses to violate the business owner’s expectations can claim no
protection under a “free speech” theory. A private business is not the government.

This summary is meant for informational purposes only and is not intended as legal advice.
If you require advice on this or any other legal issue pertaining to employment, contact our office
for an appointment.

You should do three things each season to tune up your business and make sure that it is in top condition.  By focusing on two to three items each season, you can ensure that the operations are working appropriately without a lot of additional effort.  Your spring agenda:  

1. Update Your Employee Manual: Employment laws regularly change and the Employee Manual needs to be updated to comply with the changes.  A policy review should be done annually.  If significant updates are needed, then a new handbook can be issued.  If there are only a few policies that need to be adjusted, you may be able to send a short notice to the employees and incorporate them into the complete handbook later.  

This is also a good time to review the posted notices to be sure they are up-to-date and prominently posted.  

Trimboli & Prusinowski can review Your Employee Manual and make recommendations concerning modifications and help you determine whether the adjustments warrant a notice or Handbook re-issuance.  

2. Safety and Harassment Training: All of your employees should be trained regarding your company’s (1) safety protocols and (2) harassment and hostile work environments.  If employees are aware of safety issues or have experienced harassment or a hostile work environment, they should be aware of what steps to take to bring it to Your attention so it can be corrected prior to becoming a significant issue.  

Trimboli & Prusinowski has partners that provide live and on-line employee training.  We can recommend what training is best and help ensure that everyone receives proper annual training.  

3. Performance Evaluations: You should conduct employee performance evaluations once or twice a year.  Now is the time to identify what criteria you wish to evaluate, notify the employees of what you will be assessing and conduct a review of all of your employee’s performance to date.  You can maintain a notebook or file with your observations so far this year which can be referenced when you engage with the employee for the formal review.  Tracking employee performance regularly during the year makes it easier to provide a comprehensive evaluation based upon the entire year’s work.  You may get better results by reviewing this with the employees on a quarterly basis. 

Trimboli and Prusinowski’s attorneys work with businesses like yours to implement performance evaluation systems which help identify the employee’s strengths and challenges to help them improve and make Your business more efficient and productive.  

Call Trimboli & Prusinowski today to put your Spring Tune-Up steps together so your business can run more efficiently and productively.