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Social Media and Free Speech: What the McVey Case Tells Employers About the Importance of Having a Social Media Policy

By: Cristina N. Hyde, JD

Earlier this year, the Superior Court of New Jersey, Appellate Division, heard the matter of McVey v. AtlantiCare Medical System Inc., and concluded that private employers can terminate employees for social media behavior that contravenes their business interests.

On June 17, 2020, only weeks after the death of George Floyd, it was discovered that Heather McVey, an at-will employee of AtlantiCare Medical System, Inc., had posted racially insensitive and inflammatory comments on her personal Facebook page which identified her as a Corporate Director of AtlantiCare. Shortly thereafter, she was fired for “poor management judgment” and “a failure to uphold AtlantiCare values.”

McVey sued AtlantiCare for wrongful discharge; alleging that her constitutional right to free speech under both the First Amendment of the United States Constitution and the New Jersey State Constitution had been violated. The trial court dismissed her complaint because the action taken against her was that of a private employer and not grounded in the state action needed to support such a claim.  McVey appealed that decision.

On appeal, McVey argued that the trial had erred and additionally asserted that her discharge was “contrary to a clear mandate of public policy.”  The Appellate Division disagreed.  In addition to upholding the trial court’s ruling that state action was required to bring a claim, the Appellate Division also concluded that McVey’s dismissal did not violate any existing clear mandate of public policy.  In so ruling, the Appellate Division noted the existence of AtlantiCare’s social media policy; highlighting points where employees were reminded of their personal responsibility and were advised that they be aware of their association with AtlantiCare; specifically suggesting that proper consideration be taken related to “topics that may be considered objectionable or inflammatory – such as politics and religion.”

Ultimately, the Appellate Division concluded that McVey’s interests in publicly posting remarks on social media were “slight” in comparison to her employers’ “strong” business interests in maintaining an inclusive, non-divisive corporate culture.   Therefore, her dismissal was not a violation of her constitutional rights.

While this ruling was fact specific, it is notable that among the facts considered were, the at-will nature of McVey’s employment, the existence of a social media policy and the fact that employees had been provided with that policy.  As such, employers can conclude that, while having a social media policy may not entirely justify the dismissal of an employee, providing clear written guidance to employees about social media use is important.

If you would like assistance drafting a social media policy or revising existing guidance, Campanella Law Office is ready; Contact Us.

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