The Anti-Racist Movement that’s grown after the killings of George Floyd and Breonna Taylor has resulted in many people flooding to the streets to speak out. And those who didn’t take to the streets took to platforms like Facebook, Twitter, and Instagram. These social media outlets have been flooded with posts, comments, and videos, either in solidarity with the #BlackLivesMatter movement or against it. This second wave of the Civil Rights movement has called out many private and public persons on the matter of race. Employers even find themselves having to take an official stance—but what does that mean for their employees?
New Jersey is an “at-will” state, which means that you may leave your job at any time for any reason. However, the opposite is also true—your employer may terminate you at any time for any reason. Federal and state laws prohibit employers for terminating someone because of their age, race, gender, sexual orientation, or religion, for example. Posting derogatory remarks about one of those classifications can result in termination.
The reality of at-will employment is that employees have very few protections when it comes to the speech they make in the office or on social media. With the current racial climate of in the country, an employer that supports #BlackLivesMatter, for example, may not want its employees saying otherwise on social media. It can also be “bad for business,” regardless of the employer’s views. A private employee can be fired for a racist post with no recourse. So private-sector employees do not have a right to free speech in ways that we usually think that free speech operates.
There are some states that have laws to protect legal off-duty actions of private employees. Minnesota and New York bar a private employer from taking adverse employment actions against an employee’s legal activities outside of the workplace. That means New York private employers cannot use someone’s social media actions against them. Even with these protections, private employers in these states may still find a way to legally terminate someone for inflammatory or derogatory social media posts if it such posts impact the other employees in the office.
In 2013, NJ passed Assembly Bill 2878 that prevents employers from requiring an employee or future employee to provide their social media user names or passwords. A business found to be requiring such information from you may be sued for money damages.
Public employees, however, like teachers, police offices, and other employees that work for government agencies are given certain First Amendment protections for their speech at work and in their private lives. But that’s only if their speech touches a matter of public concern and made in their capacity as a private citizen under the Pickering Test. A matter of public concern covers issues of political and community importance – these comments add to greater conversations and speak to issues outside of someone’s line of work. This means that negative comments or complaints about your job may fall outside of the protections of the First Amendment.
The second part of the equation for public employees is whether their speech causes a disruption in the workplace. So even if a public employee’s speech is considered a matter of public concern, if their comment has caused or continues to cause a disturbance to the workplace, work relationships, or work efficiency, a public employee may face repercussions for their speech. A public employee’s speech is weighed for its First Amendment value against the employment situation while a private employee’s speech does not come with those protections.
The rise of social media sites has also meant a slow deterioration between private and public spheres of our lives. No matter what you are posting, it is obvious that it will have an audience—and if that audience is your employer or co-workers, there may be unintended consequences.
Aleksandra Syniec, who wrote this article, is a second-year law student at Seton Hall University School of Law. She is also knowledgeable in landlord-tenant law and the information technology.
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