Recently in the news there has been coverage whether certain Bedford School Guidance Counsellors should keep their job after he wrote letters of support for a former Exeter High School Guidance Counsellor, Kristie Torbick. Ms. Torbick pled guilty to sexually assaulting a 14-year old student in Exeter, although she previously worked in Bedford. Bedford, in noting its decision not to terminate the employment of those counsellors, properly noted public employees’ constitutional right to freedom of speech. While that right of freedom of speech has parameters, Bedford clearly made the legally-correct decision. However, in the private sector, there is no such constitutional right of freedom of speech as to employment.
The constitutional right of freedom of speech places boundaries on the government’s restriction of your speech and not upon private employers taking action for what an employee stated inside or outside of his employment. There are particular statutes that address certain work-related communications that employees can have without ramification from their employer. However, employees who do not work for the government would be mistaken to believe that whatever they say outside of work would not affect their work.
New Hampshire is an employee-at-will State, which means that absent an employment contract or a union agreement (a/k/a collective bargaining agreement), employees may be fired with or without cause and with or without notice. The employee would be in error to believe that whatever they do and say “off the clock” does not impact their work when “on the clock.” Statements to co-workers about job conditions or rights can be concerted activities protected under the National Labor Relations Act. Yet not every statement about a co-worker is protected speech under that statute. For example, if an employee posted on his public social media page about private, embarrassing facts of a co-worker that are unrelated to his job, it could cost that posting employee his job. The employer, in analyzing those rights, should first speak with employment counsel before making any decisions and not only consider whether or not he can legally fire the employee, but whether or not he should. Part of the employer’s consideration in firing the employee is the impact on employee morale. Often firing a jerk or a consistently poor performer can have a positive impact; however, firing a well-liked performer for a single indiscretion he did or said outside the workplace may have a negative impact on morale. Further, tying what was done outside the workplace to something related to the workplace is important so that employees, regardless of whether they like or dislike the fired employee, understands that there was a rational thought process behind the firing and how they can avoid losing their job as well. In the above example, letting employees know you do not tolerate cyber-bullying of fellow workers would be a good tie in to work. In this example, if the posting employee worked for the government he may still lose his job as well as the malicious post would likely be considered outside protected speech for public employees.
One exception to the employee-at-will doctrine is the public policy exception. This would be when an employer fires someone in bad faith or malice or was based on retaliation and the firing was contrary to what public policy would encourage or discourage. For example, if an employee outside of the workplace witnessed a parent abusing their minor child at Walmart and reported it to the police, and the employer becomes irritated and decides to fire the employee because the accused abuser was the boss’s son, the firing could quite possibly fall into the public policy exception of the employee-at-will doctrine and therefore result in the employee having a proper wrongful termination claim for being fired. This would be a very narrow exception in that most of what we do or say outside of the workplace would not fall under that exception.
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].