## Facts

- Heather J. McVey was an at-will employee of AtlantiCare Medical System, Inc., serving as Corporate Director of Customer Service (after earlier working as a nurse).
- AtlantiCare maintained a written social-media policy governing both AtlantiCare-controlled accounts and employees’ personal accounts.
- The policy stated that employee social-media activity, inside or outside the workplace, could affect job performance, AtlantiCare’s brand and reputation, and AtlantiCare’s business interests.
- The policy directed employees who publicly identified themselves as AtlantiCare employees to present themselves online as they would to colleagues or clients, and to be respectful by avoiding, among other things, ethnic slurs, personal insults, and obscenity, and to use care when addressing inflammatory topics.
- McVey maintained a personal Facebook account using the name “Jayne Heather,” but it displayed her photograph and identified her as an AtlantiCare corporate director; it also referenced her prior work as an AtlantiCare nurse.
- In 2020, during nationwide demonstrations following George Floyd’s death, McVey participated in a Facebook discussion about the Black Lives Matter movement and made comments AtlantiCare viewed as racially insensitive (including statements that the movement was racist and caused segregation, and remarks about violence within the Black community).
- An AtlantiCare administrator discovered the posts and met with McVey about them.
- AtlantiCare suspended McVey pending an investigation and ultimately terminated her employment, citing poor management judgment and failure to uphold AtlantiCare’s values as a leader.
- McVey filed suit in the New Jersey Superior Court (Law Division), alleging wrongful discharge in violation of public policy under *Pierce v. Ortho Pharmaceutical Corp.* based on claimed free-speech rights under the First Amendment and Article I, paragraph 6 of the New Jersey Constitution.
- AtlantiCare moved to dismiss under Rule 4:6-2(e), arguing constitutional free-speech protections did not apply because AtlantiCare was a private employer, not a state actor.
- The Law Division dismissed the complaint, and McVey appealed.

## Issues

1. Whether the First Amendment or Article I, paragraph 6 of the New Jersey Constitution limits a private employer’s decision to terminate an at-will employee for posts made on the employee’s personal Facebook account.
2. Whether those constitutional free-speech provisions can supply the “clear mandate of public policy” required for a *Pierce* wrongful-discharge claim against a private employer.

## Decision

- The Appellate Division affirmed the Law Division’s Rule 4:6-2(e) dismissal.
- The court held the First Amendment restrains governmental action and does not bar a private employer from terminating an at-will employee based on the employee’s Facebook posts.
- The court rejected McVey’s argument that Article I, paragraph 6 should be read as a general limit on private employers’ termination decisions in the ordinary workplace setting.
- Because the constitutional provisions McVey relied on did not apply to AtlantiCare’s conduct as a private employer, they did not supply a clear mandate of public policy sufficient to state a *Pierce* claim.

## Legal Principles

- The First Amendment generally applies only to government conduct; absent state action, a private employer’s employment decisions are not subject to First Amendment limits.
- Article I, paragraph 6 of the New Jersey Constitution has been applied more broadly than the First Amendment in certain settings involving private property opened to public expressive activity, but New Jersey precedent does not treat it as a general restraint on private workplace terminations.
- A *Pierce* wrongful-discharge claim requires identification of a clear mandate of public policy, typically found in statutes, regulations, constitutional provisions, or case law that is both clearly expressed and applicable to the defendant’s conduct.
- A constitutional provision cannot serve as the public-policy source for a *Pierce* claim where the provision does not regulate the private employer in the circumstances presented.
- Absent a specific statutory or other clearly applicable public-policy protection for the speech at issue, a private employer may discharge an at-will employee for public social-media posts that the employer reasonably views as inconsistent with the employer’s values or reputation interests.

## Conclusion

The Appellate Division held that AtlantiCare, a private employer, could terminate an at-will corporate director for racially insensitive comments posted on her personal Facebook account, because neither the First Amendment nor Article I, paragraph 6 of the New Jersey Constitution constrained AtlantiCare’s decision absent state action, and those constitutional provisions therefore could not supply the clear mandate of public policy required to plead a *Pierce* wrongful-discharge claim.


McVey v. AtlantiCare Medical System, Inc., 276 A.3d 677, 472 N.J. Super. 278 (2022)