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Employers Should Not Fire A Worker For That …

On Behalf of | Sep 11, 2019 | Employment Law

New Hampshire private employers are generally aware of a variety of federal and state laws as to what is an unlawful firing.   However, smaller employers may not be aware of less known statutory protections for employees that prevent them from being fired for certain reasons.  This article addresses some of those less known laws that provide employee job protection.

Employees are allowed to share with each concerns they have as to the workplace and their compensation under the National Labor Relations Act.  If an employer was to fire an employee for discussing with a coworker her compensation or discussing with a coworker the perceived ineptness of their boss or a fellow coworker and how that impacts their job, the employer may be liable to the fired employee.

An employer cannot fire an employee who filed for bankruptcy or has failed to pay a debt that was discharged in a bankruptcy in accordance with the federal bankruptcy code, 11 USC §525(b).  For employers who have dealings with the government and have requirements for the employees to have security clearance, to the extent that a bankruptcy affects their security clearance, they should speak with their employment counsel.  In some circumstances a security clearance is clearly an essential requirement of the job.  However, in general, if an employer fires an employee because the employer is irritated that he used the bankruptcy code to get out of his otherwise legitimate debt, that employer would be at risk of a wrongful discharge claim.

Firing an employee for smoking off the work site would be a violation of New Hampshire protected legislation RSA 275:37-a which state that an employer cannot require as a condition of employment that the employee or applicant of employment abstain from using tobacco products outside the course of employment as long as the employee complies with any workplace policy allowed under the Statute.  Simply put, you can ban employees from tobacco smoking, vaping, or chewing inside the workplace, but you cannot fire them for using those tobacco products outside the course of employment and/or outside of the employer’s building.

If an employee is out on a work-related injury and is able to and has asked to come back to work within 18 months of the injury, the employer has reinstated him. New Hampshire’s Workers Compensation Statute RSA 281-A:25-a requires employers with five or more employees to reinstate a former employee who requests reinstatement if the position exists and is available for the employee to perform the work with a reasonable accommodation for the employee’s limitations.  This statute makes it clear that the position is still available even if the position has been filled by a replacement while the injured employee was absent.  For example, if an employee has a work-related injury and the employer needs to fill that position while the employee is out, the employer cannot use the explanation that it already hired someone else as a replacement as a basis to deny the injured employee the right to return to work.  The employer would have to fire the temporary employee it used to make availability for the injured employee’s return.

In general, contacting employment counsel prior to making a decision to fire an employee can save money later not only to discuss if to fire but how to handle a firing.

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].