Q4:  A private employer in NJ fires an employee after seeing videos on Facebook of the employee branding a tiki torch and wearing a KKK t-shirt at the Charlottesville, VA rally.  The employee did not have an employment contract and was employed “at-will”.  Was he wrongfully terminated?

A4:  Like NY, several states have statutes protecting employees from employer action related to their off-duty lawful activities, which would arguably include lawful political protest.  New Jersey has no such law pertaining to lawful political protest.  The employer is likely on safe ground firing the employee. But, consider this - the 8th Circuit Court of Appeals recently held that certain hate speech was protected concerted activity under Section 7 of the National Labor Relations Act (there, the employee made racist remarks to African American replacement workers while picketing - picketing is a protected union activity). While my hypothetical is quite different factually from the 8th Circuit case, the point is - employers should contact employment law counsel before terminating employees. Making impulsive, emotional decisions is never a good idea. Although my hypothetical seems clear, we all know that not everything we see on social media is accurate. Investigating the situation carefully and thoroughly first, with the assistance of counsel, is the prudent course.


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