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Can I Lose my Job for Expressing my Political Beliefs?

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Political Beliefs – In these days of very colorful and opinionated Tweets coming in rapid fire from our highest government officials, it might seem unbelievable that the answer to this question is “yes.”  But the answer is very likely to be “yes” in your case depending on whether you work in the public or private sector.

New Hampshire has no constitutional provision or statute generally protecting freedom of expression in the private workplace.   Nor does the First Amendment to the United States Constitution restrict employers from retaliating against you for your expressed opinions in the private workplace.  The state whistleblower statute protects a private worker’s speech in specifically reporting his reasonable belief that his employer is acting, in some in way, in violation of local, state or federal law.  Federal labor and civil rights statutes (and the New Hampshire civil rights statute) protect an employee from termination for speaking out about workplace conduct of  the type discouraged by the statute (e.g. sexual harassment, failing to pay overtime, chilling union activity).   New Hampshire common law (court made law) provides for a tort claim where an employee is terminated for performing an act “encouraged by public policy” or for refusing to perform an act “discouraged by public policy.”  To date, though, there has been no recognized claim founded on the idea that expressing one’s political views is and “act encouraged by public policy.”

All of this means that if you work for a private business and you tweet, post, or state your opinion in response to the hot political topic du jour, even if your statement is in response to a comment with legal implications (e.g. “national origin” discrimination is prohibited under federal law), if your boss terminates you for your statement, there will very likely be no avenue toward legal relief.  Similarly there is no protection, in New Hampshire, from termination from employment in a private workplace due to your political affiliation.

If you are a public employee in the U.S. (employed by local, state, or federal government) the First Amendment protects you from retaliation for your expressed opinions on a matter of public concern, if they are done on your own time and made as a citizen as opposed to official capacity.  The protection is tempered however if the government’s interests, in efficient provision of public services, outweighs your interest in the freedom to comment on public matters.  New Hampshire’s public employee freedom of expression statute, RSA 98-E, though, expands protection for public employee, giving New Hampshire public workers “a full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies” subject only to exceptions for “legitimate confidential records, communications, and proceedings.”  Documents showing legislative discussion prior the enactment of 98-E show that legislators were keenly aware of the benefit to pubic of disclosure to the public of information about the government from those employees who knew it most intimately.

If you have a situation that concerns you, and wish to talk with an employment lawyer who represents employees, feel free to reach out to us at (603) 288-1403 or fill out our online contact form.