Appellate Division Upholds Termination of Employee Based on Her Facebook Posts

On March 21, 2024, the New Jersey Appellate Division issued a decision in Zack v. Integra Lifesciences Corp. in which the court upheld the termination of a White woman based on public posts she made on Facebook during the protests of police violence following the murder of George Floyd. After other company employees reported being offended by the posts, Integra’s HR Department conducted an investigation, which included reviewing the plaintiff’s post and comments. The investigation determined that plaintiff, an Integra manager who was already under a Performance Improvement Plan, violated the company’s social media policies and expectations. Integra terminated plaintiff, and she filed suit against the Company for, among other things, reverse racial discrimination, wrongful discharge based on the First Amendment, and violation of the New Jersey Civil Rights Act.

After the close of discovery, Integra moved for summary judgment, which the motion judge granted. Plaintiff appealed and the Appellate Division affirmed.

Although the thrust of the court’s decision on appeal focused mainly on the application of employment law principles, the court also discussed issues relating to social media. Specifically, the court held with regard to plaintiff’s First Amendment claims that while employees have an interest in knowing they will not be discharged for exercising their legal rights, employers “have an interest in knowing they can run their businesses as they see fit as long as their conduct is consistent with public policy.” The court also acknowledged that a prior decision – McVey v. AtlantiCare Medical System Inc. – which recognized that constitutional rights can only be violated if there is state action “and there is no state action when a terminated employee works for a private employer.”

Finally, the court found that plaintiff’s public post and comments brought “strife into Integra’s work environment, undermining its diversity and inclusion practices and exposed Integra to possible criticism.” Accordingly, plaintiff’s “slight” interest in free speech did not outweigh Integra’s “strong interest in enduring a productive and inclusive work environment and the ability to assure partners, clients and the public it did not share or endorse plaintiff’s views.”

A petition for review by the New Jersey Supreme Court is likely.

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For any questions relating to this article, please contact Robert G. Nussbaum, Esq. at Saiber LLC.

Rob Nussbaum

Rob Nussbaum has lectured numerous times on legal issues and social media and how social media and other electronic evidence may be admitted into evidence at trial. He concentrates his practice in general commercial litigation and appears regularly in New Jersey federal and state courts.

For any questions relating to whether your website or social media presence can be used against you as a basis for personal jurisdiction, please contact Robert B. Nussbaum, Esq. at Saiber LLC.