(Editor’s Note: The latest edition of the Insurance Law Section Newsletter provides an overview of recent cases that impact the legal perspective on workplace conditions, personal injuries, the impact of COVID, and more. Below is a summary of one of those cases written by Brian Lehrer. Read the full issue here.)
In a case involving the termination of an employee from a private enterprise, the Appellate Division recently held that the First Amendment and Article I, Paragraph 6 of the New Jersey Constitution did not bar a private employer from terminating an at-will employee and dismissed the plaintiff’s claim for wrongful discharge.
The plaintiff was employed by the defendants as Corporate Director of Customer Service. During the height of the nationwide protests concerning the murder of George Floyd, she posted that she found the phrase “Black Lives Matter” to be “racist,” believed the Black Lives Matter movement “causes segregation,” and asserted that Black citizens were “killing themselves.” Her Facebook profile prominently stated that she was an AtlantiCare Corporate Director.
The plaintiff was terminated. The trial court concluded that the First Amendment and Article I, Paragraph 6 of the New Jersey Constitution did not bar a private employer from terminating an at-will employee. The Appellate Division affirmed.
The Appellate Division rejected the plaintiff’s argument that the trial court erred by dismissing her complaint because her discharge was contrary to a clear mandate of public policy set forth in the First Amendment of the United States Constitution and its counterpart in the New Jersey Constitution. The New Jersey Supreme Court has held that wrongful discharge cases must balance the interests of the employee, the employer and the public. However, more is needed than simply the breach of public policy affecting a single person’s rights to constitute the breach of a clear mandate of public policy that Pierce requires because determining public policy is a matter of weighing competing interests.
The Court pointed out that under federal law, constitutional rights can be violated only if there is state action. It further pointed out that no New Jersey Court has held that a private entity that encroaches upon a private individual’s constitutional rights to free speech has violated a clear mandate of public policy. The Court held that its position would not change even if it balances the plaintiff’s freedom of speech protection against her employer’s business interests under the circumstances of the case because her employer appropriately considered that the comments opened its business up to the possibility of unwanted and adverse publicity and criticism.