Can you discipline or even fire an employee for postings on a personal social media account that convey a message inconsistent with the values of the organization? The answer may depend on geography.
State borders affect employees’ workplace rights. One example of this is the varying approaches that New Jersey, New York and Connecticut have taken with regard to employees’ “free speech” rights. Technically, employees working in the private sector have no First Amendment free speech rights, as I recently discussed in a prior blog article, because the Bill of Rights only applies to government action. But state laws can also grant employees free speech protections. Connecticut has done so; New Jersey has not; New York is sort of in the middle.
Connecticut Protects Employees’ Free Speech
Connecticut prohibits all employers from disciplining or discharging an employee for exercising rights guaranteed by the First Amendment or similar provisions in the Connecticut Constitution, provided the activity does not “substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.” On its face, the law does not protect all forms of employee speech, and the courts have interpreted the law to include two additional limitations, consistent with constitutional law principles:
- 1. The employee’s speech must pertain to a matter of public concern, and not merely an employee’s personal matters; and
- 2. (a) The employee generally needs to be speaking as an individual, and not in an official or representative capacity for the employer; or
(b)The employee’s speech in an official capacity must be related to a matter of significant public interest that involves dishonest or dangerous practices by the employer, and the employee’s interest in speaking up must outweigh the employer’s right to control its own employees and policies.
There are few reported cases in which an individual working for a private employer successfully established protection under the statute.
The current legal standard for analyzing these claims was outlined by the Connecticut Supreme Court in Trusz v. UBS Realty (CT 2015). In the subsequent history of that case, the federal district court in Connecticut held that the head of UBS Realty’s valuation unit could proceed to trial with a claim that he was wrongfully terminated under Connecticut’s free speech law for a whistleblower complaint. Trusz complained that he had repeatedly raised concerns that the employer’s failure to disclose property valuation errors to investors and adjust its management fees based on those errors was a violation of the company’s fiduciary, legal and ethical obligations to its investors.
Subsequent courts have allowed claims to proceed against private employers in analogous whistleblowing contexts:
- for declining a supervisor’s direct request and expressing discomfort with creating fraudulent time sheets for services a non-profit had not provided, to be presented at an upcoming state audit;
- for twice objecting to driving a tractor trailer transporting hazardous waste on public highways using vehicles that presented safety issues; and
- for expressing concerns to the owner of a used car dealership that a supervisor was having firearms delivered to the office and storing them unlocked under his desk.
In contrast, the courts have declined to allow claims to proceed that involved matters of employer policy or individual behaviors. For example:
- dismissing a claim based on a manager internally raising a pay inequity among supervisors;
- striking an employment discrimination claim that an employee was disciplined because of her personal friendship with a former CEO; and
- striking a claim based on concerns raised in an open workplace forum that the company was paying large bonuses to executives in a poor economic climate that would hurt shareholders and the public good.
The modest number of private sector cases under the Connecticut free speech law is indicative of the limitations in its reach, and none appear to have considered the law in the context of an employee’s social media activity.
The Trusz case and other decisions suggest that social media posts that pertain to whistleblowing activity may fall within the protections of the free speech law. Employers that are looking to discipline employees for social medial activity on other subjects, such as political expressions on race, religion, abortion, or other sensitive matters that may not align with the employer’s expressed values, should first consult with legal counsel as to whether the employees’ conduct is likely to be considered protected.
New Jersey Does Not Provide Free Speech Protection
The hypothetical situation of the employee posting on social media was directly considered by the New Jersey Appellate Division in McVey v. Atlanticare Medical System (May 20, 2022). The case originated in 2020, during the height of the nationwide protests responding to the death of George Floyd. The plaintiff, who held the title of Corporate Director of Customer Service, participated in a Facebook discussion related to the Black Lives Matter movement and responded that she found the phrase to be racist and bothersome because it “causes segregation.” In response to a further post that Black Lives Matter is bringing attention to the plight of Black people who are dying in America, she replied, “’[T]they are not dying…they are killing themselves,” and she later posted that she “’support[ed] all lives . . . as a nurse they all matter[,] and [she] d[id] not discriminate.’”
The employee’s job title and affiliation with her employer were clearly identified on her Facebook profile, and her postings came to the attention of senior management, who asked her about them. The employee acknowledged the posts, and in a subsequent meeting with senior managers she revealed she was recording the conversation. The employee was promptly terminated for “repeated instances of poor management judgment” and a “failure to uphold the company’s values.”
The employee sued, asserting that she had been wrongfully terminated in violation of public policy, citing the First Amendment and the corollary protections under the New Jersey Constitution. The New Jersey Appellate Division held that neither the First Amendment nor the New Jersey Constitution reflect a clear mandate of public policy that prohibited the employee’s termination. The Court observed that these constitutional protections apply to state action, and not actions taken by a private employer toward an at-will employee, and specifically noted that New Jersey had no corollary to Connecticut’s free speech law.
New York’s Middle Ground
New York law does not expressly provide employees with free speech protections in the private sector, but it does protect employees’ right to engage in certain lawful activities outside of work. Four types of activities are expressly protected by New York law:
- certain political activities – running for public office, campaigning for a political candidate, or fund-raising for a candidate, political party or political advocacy group – if conducted completely outside of work;
- legal use of “consumable products” (ie: alcohol, tobacco products and now marijuana) if conducted completely outside of work;
- legal recreational activities – sports, games, hobbies, exercise, reading, watching television or movies and similar leisure time activity – if conducted completely outside of work; and
- union membership or related organizing activities.
Evan as to those protected activities, the law expressly allows employers to take actions to protect trade secrets, proprietary information and other business interests; to direct employees into a substance abuse or alcohol program; and to align with union contracts.
The statute’s limited definition of “political activities” would not extend to most employee social media activity. Rather, such activities may fall within the third category of “legal recreational activities.” There is a difference, however, between an employer disciplining an employee for blogging or posting in general on social media, and an employer responding to the content of specific messages or images that an employee may post or respond to on social media. The former is likely protected; the latter may not be. Again, employers should consult with legal counsel before taking disciplinary action in this context.
Employers Should Proceed with Caution
The McVey decision should give New Jersey employers some comfort and bright-line principles for addressing employees’ social medial activity, at least where employees have directly identified their employer affiliation in their postings. Employers in Connecticut and New York should be mindful that there are legal protections that extend to employees in this context, and should seek legal advice relative to specific factual situations before taking responsive actions.
By Tracey I. Levy