Tuesday, May 24, 2022

Court upholds termination of employee for off-duty Facebook posts critical of Black Lives Matter

"Black lives" matter causes segregation. Have you ever hear[d] of "white lives" matter or "[J]ewish" lives matter[?] No. Equal opportunity.
That's what Heather McVey posted to her personal Facebook account in the wake of George Floyd's murder and the ensuing Black Lives Matter protests.

An administrator of the hospital at which McVey worked as a nurse discovered her post, and, following an investigation the hospital fired her. Its stated reason was that "she posted on her social media a clearly racist dog whistle post, which was inconsistent with the vision and the mission and the core values of AtlantiCare."

She sued, claiming that her "termination … was punishment for [her] exercise of those rights protected by the free speech amendment." The court correctly disagreed, concluding that "a private employee … terminated by her private employer … cannot rely upon the freedom of speech provisions" to challenge her termination.

The court added that even if the free speech amendment create a public policy that protects an employee from termination, the employer has a clear and legitimate interest to terminate in this case.
Even if we could consider McVey's statements to be merely insensitive, we would still hold … that AtlantiCare properly terminated her employment. McVey's interest in publicly posting her remarks was minimal. … McVey uploaded her remarks to her public Facebook page, which prominently identified her as the "Corporate Director at Atlanti[C]are Regional Medical Center." … McVey posted her remarks at the height of the Floyd protest demonstrations and AtlantiCare appropriately considered that the comments, and her public identification as an AtlantiCare "Corporate Director," opened its business up to the possibility of unwanted and adverse publicity and criticism.

We have balanced McVey's slight interest in publicly making her position on the Black Lives Matter movement known against AtlantiCare's strong interest in protecting and fostering the "diverse set of customs, values[,] and points of view of its physicians, staff, volunteers, vendors, customers[,] and partners[.]" Under the circumstances presented in this case, AtlantiCare did not violate a clear mandate of public policy when it terminated McVey's employment.
If you work for a private employer, you are free to say whatever you want on duty and off duty; just understand that your employer might hold you accountable with your job. Freedom of speech does not mean freedom from consequences.