Employment at Will: Exceptions and Social Media Cases

Introduction to At-Will Employment

The notion of at-will employment reflects the fact that, by law, employees can be fired from any job for any cause — good or bad — depending on the whim of the employer, barring a written employment contract (Muhl, 2001, p. 3). The employment-at-will doctrine does, however, carry specific exceptions that vary from state to state. The following analysis examines how that doctrine and its exceptions apply to three distinct workplace scenarios under New Jersey law: an employee who posted a rant on his public Facebook page targeting a major client, an employee who blogs critically about her working conditions, and a department secretary who refused to falsify her supervisor's expense reports.

In the case of John, the employee who posted a rant on his Facebook page, there are a number of New Jersey precedents allowing employers to fire employees for posts made on social media. A garbage collector in Maplewood, N.J. was fired for complaining on his public Facebook page about having to clean up "after a two-day concert, blaming the mess on liberals who rant about green living and then pollute the parks, and launched a tirade against Obama, gays and liberal politics" (McDonnell, 2014).

Social Media Posts and Employee Termination

Similarly, in Ehling v. Monmouth-Ocean Hospital Services Corp., the plaintiff Deborah Ehling brought a suit against her former employer over comments she had made on her private Facebook page, "access to which was limited to her Facebook friends" (McDonnell, 2014). One of Ehling's Facebook friends and coworkers showed the post to her employer. Ehling sued, contending that Monmouth-Ocean Hospital Services Corp.'s access to the page violated the Federal Stored Communications Act (SCA) as it applied to social media. The SCA is part of the Electronic Communications Act of 1986, which protects private communications transmitted and stored electronically (McDonnell, 2014). However, "the District Court held in favor of the employer, finding Ehling's co-worker was an intended recipient and that his authorization to the employer to view his page was sufficient" (McDonnell, 2014).

Under federal law, specifically the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has found that employee discussions of "terms and conditions of employment" are protected under current labor relations law (McDonnell, 2014). Making personal remarks about a company's major client on Facebook would not appear to fall under provisions related to an employee's terms and conditions of employment. Therefore, if John's rant was on his public Facebook page — or was brought to the employer's attention in a similar manner even if originally posted on his private page — John could likely be terminated for his conduct.

This legal action would still be somewhat controversial, particularly if John made the statement on his private Facebook page. New Jersey prohibits potential or current employers from demanding employees' passwords to social media accounts ("Can potential employers ask for my Facebook password?" 2015). Unless the post was public or explicitly delivered to the employer by a fellow employee who was one of John's online friends, it is possible that a court could find John had a reasonable expectation of privacy in the format in which he posted the rant. From a utilitarian ethical perspective, it might be better for the company to advise employees on how to keep their private opinions protected online rather than attempting to monitor them and risk becoming mired in litigation. Even if the company emerged victorious and was able to fire John, the resulting negative publicity might ultimately do the company and its employees more harm than good.

The Public Policy Exception to At-Will Employment

The only ambiguity under New Jersey law is whether complaining on social media constitutes a sufficient expression of disagreement as delineated in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980). That case found that "the employee must express disagreement with a corporate policy, directive or decision based on a clear mandate of public policy" and that it must be "a sufficient expression of that disagreement to support the conclusion that the resulting discharge violates the mandate of public policy and is wrongful" — expressed either to an outside agency such as a regulatory body or to an internal agency such as a superior (Zuckerman, 2015). "A passing remark to a co-worker will not [suffice]; a complaint to a senior corporate manager will probably suffice; a complaint to an immediate supervisor generally will not" (Zuckerman, 2015). The legal question that arises is whether a blog post directed at a general audience constitutes a valid expression of free speech under Pierce.

From an ethical perspective, the company may feel that Ellen is taking advantage of the organization that employs her, and that her posts are not particularly useful to other employees. However, from a utilitarian standpoint, making a legal example of Ellen may simply draw more negative publicity to the company and give her blog even greater attention. Since Ellen is not engaged in openly libelous behavior or making false factual statements about the company — which would be illegal — ignoring her may be the better option.

Another major exception to the at-will employment doctrine is the public-policy exception. Under this exception, an employee is wrongfully discharged when the termination is against an explicit, well-established public policy of the state. For example, in New Jersey "an employer cannot terminate an employee for filing a workers' compensation claim after being injured on the job, or for refusing to break the law at the request of the employer" (Muhl, 2001, p. 4). This means the department secretary cannot lawfully be fired for refusing to falsify her supervisor's expense reports. The first use of the public-policy exception under law was Petermann v. International Brotherhood of Teamsters in California, in which Petermann was instructed by his employer to lie while testifying. He refused and was subsequently fired.

Conclusion

From an ethical perspective, firing the secretary for doing the right rather than the wrong thing would be clearly wrong. The company should send a clear message that it supports ethical employees. Across all three scenarios examined, the analysis demonstrates that at-will employment is not unlimited: social media activity, labor-protected speech, and employee refusals to break the law each trigger distinct legal safeguards. Organizations that understand these boundaries — and pair legal compliance with sound ethical policy — are better positioned to avoid litigation, protect their reputations, and foster a workplace culture of integrity.