While New Hampshire is reopening for business, employees will obviously discuss the COVID-19 pandemic. Many of the protocols put in place are frustrating to employees, such as the answering of questions, temperature taking, and in some circumstances the requirement to wear facemasks. However, employers are merely following through with governmental directives. This pandemic will end and keeping in check your frustration of the implementation of the requirements by your employer would be prudent for your career path. You are allowed to complain as to these pandemic protocols between co-workers since that is likely considered a concerted activity under the National Labor Relations Act. Complaining about your employer enforcing the law that it is required to enforce, while likely protected speech, will not assist you in your career path. Therefore, it is important to think before you speak, email, text, or otherwise communicate your frustration with pandemic protocols in the workplace.
Another topic of discussion related to the pandemic that is not protected in the private workplace is your frustration with the governmental response to the pandemic. Perhaps you have a strong opinion as to the cause of the spread of the pandemic. There is no freedom for political speech in the private workplace when that speech is not about your employment. The constitutional right of freedom of speech prevents the government from restricting certain speech, including political speech, but it does not prevent a private employer from doing so. If you want to opine to your fellow workers as to what Congress, the President, or the Governor is doing right or wrong as an at-will employee, you do not have a constitutional freedom of speech in the private workplace to express that opinion. While many employers may not take action against you for your discussion with your co-workers of your criticism or support of certain governmental official’s actions responding to the pandemic, at a bare minimum, those teammates in your workplace who have a different opinion than you may think less of you after you espouse that view. That can affect your work relations going forward and your career path. Furthermore, if such a discussion causes disruption in the workplace, the employer may take action. We are all replaceable in the workplace, although some at a greater cost than others are.
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].