State Law Protects State Employees Who Criticize Workplace Decisions That Affect the Public

NH Law Protects Employees — The First Amendment guarantees that employees who work for local, state, and federal government do not surrender their right to speak critically about the government when they accept employment with the government.   However, there are caveats.  For example, under the First Amendment, a public employee may not be free to criticize her employer, even on a matter of public concern, if doing so would burden government operations or impede government services.   By way of example, a Louisiana assistant district attorney was not protected from termination where she criticized the district attorney’s management decisions, even where one of the alleged decisions was to pressure employees to work on political campaigns.    See Connick v. Myers, 461 US 138 (1983).  The Court ruled that though the subject of compelling public employees to work on political campaigns was of public importance, the importance did not outweigh the government’s interest in maintaining order in the district attorney office by rooting out insubordination.  The Court “balanced” the employee’s interest in free expression on matters of public concern against the government’s interest in efficient delivery of government services, and the government interest won.


New Hampshire law, however, provides the government employee greater protection than the First Amendment.  RSA 98-E gives the public employee “a full right to publicly discuss and give opinions … on all matters concerning any government entity and its policies,” and  the “full right” is “balanced” only against “the need of the employer to protect legitimate confidential records, communications, and proceedings.”  See RSA 98-E:1.  Thus, in New Hampshire, If a public employee publicly discloses and criticizes information she learned on the job, that is important to the public but not confidential, the public employer may not interfere in any way with ongoing discussion and criticism, despite any imposition presented to the workplace.

If you have a question about speech and the public workplace, please contact us at 1-800-240-1988 for a free consultation or fill out our online contact form.



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