Providing Legal Services For More Than 125 Years

The Decision to Fire an Employee for Complaining

On Behalf of | Jan 13, 2016 | Employment Law

At the beginning of a new year, decisions are made to end relationships that are not working; whether it is in one’s personal or business life. For employers January is often one time during the year to terminate employment of underperforming employees. Sometimes the worst underperforming employee also complains to others about how unfair he thinks the company is on certain policies; whether it be requiring overtime, making the employees work too hard, or the company having too high of expectations of the work-product quality. Upon firing the employee for underperformance it may be thought by management to also let the employee know that his insistent whining about how he and his fellow employees are being treated did not help matters. The thought may be to educate the employee as to how to land and keep a new job since no one likes a whiner. Management would make a mistake in doing so and instead if they would fire the employee because of his job underperformance alone then that should be the sole stated purpose of the firing.

Federal law, Section 8 of the National Labor Relations Act, in part, makes it unlawful to fire an employee because he discussed with other employees the company’s work conditions. Likewise that Act permits employees to speak with each other about their compensation. This provision of the National Labor Relations Act applies whether or not the employer has a union or does not.

However, only communications to co-employees related to their employment is protected from retaliation from the employer. Complaining to fellow employees about too much overtime, under pay of some or all employees, or poor work conditions generally would be protected speech under the National Labor Relations Act, however, spreading a rumor, whether true or false, to fellow employees about the boss’ adulterous affair generally would not be protected speech unless it related to employment such as the boss giving preferential treatment to his paramour subordinate co-employee.

Lastly, employees are sometimes confused with the constitutional right of freedom of speech. That applies to the government impeding speech and not private employers. Private sector employees do not have a constitutional right of freedom of speech in the workplace. For example with the upcoming presidential elections, it would be best not to take hard vocal stances in the workplace on politics that are different than your boss. You certainly need not agree with, or vote the same as, your boss yet communications about who should be the next president of the nation is not protected speech under the National Labor Relations Act.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].