HR REPORT: A Cautionary Tale: Public Employee Free Speech Rights under New Hampshire Law – Clark v. N.H. Department of Employment Security

Anna B. Cole

On January 11, 2019, the New Hampshire Supreme Court issued a decision that serves as a strong reminder that public employers in New Hampshire must be careful not to run afoul of their employees’ free speech rights when making employment decisions.   

New Hampshire RSA 98-E provides public employees with a statutory right to engage in free speech.  RSA 98-E: 1 states, in pertinent part, “[A] person employed as a public employee in any capacity shall have a full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies,” except for matters that are privileged or confidential.  Because RSA 98-E permits public employees to engage in protected speech in their individual capacities related to all matters regarding their public employer and/or its policies (excluding confidential and privileged matters), the New Hampshire Supreme Court has held that the protections of RSA 98-E are broader than a public employee’s right to free speech under the First Amendment of the U.S. Constitution, which only protects public employee speech related to “matters of public concern.”  See Pickering v. Board of Education, 391 U.S. 563 (1968).  However, while RSA 98-E expands the subject matter of protected speech, it also limits the statute’s protection to speech that is made “publicly.”  It is the requirement that the speech be made publicly that was addressed in the Court’s recent decision.

In Clark v. N.H. Department of Employment Security, the plaintiff is employed by a state agency, the Department of Employment Security (DES).  In 2010, she was promoted to a supervisory position in the DES Benefit Support Unit.  As part of her new responsibilities, Ms. Clark supervised approximately 15 individuals, including three (3) interns, two (2) of whom where children of other Department employees. 

Between late 2010 and early 2011, the plaintiff became concerned with the performance of the interns and brought her concerns to the attention of her supervisor and to the Director of the Unemployment Compensation Bureau.  The plaintiff claimed that she also tried to bring her concerns about the interns to her union representative, but that her supervisor and the Director prevented her from doing so.  Additionally, in pertinent part, the plaintiff alleged that she suspected her supervisors had altered a performance review that she had completed for one of her supervisees and removed references to the supervisee’s concerns about the interns’ performance.  The plaintiff was then barred from attending the supervisee’s review meeting.  Ms. Clark was also prohibited from speaking with a state senator who was planning to attend the supervisee’s review.  Following these interactions, the plaintiff received a poor evaluation and was subsequently selected for layoff.  The plaintiff retained her employment by accepting an alternate non-supervisory position in lieu of layoff, but she later appealed her demotion alleging that she was unlawfully demoted for raising her concerns about the interns.[1] 

In 2014, the plaintiff filed suit alleging, among other things, that the defendants’[2] conduct violated her rights under New Hampshire’s Public Employee Freedom of Expression Act (RSA 98-E).  The Superior Court dismissed plaintiff’s RSA 98-E claim after determining that her speech was not protected because she failed to demonstrate that she “engaged in public discourse.”  The Superior Court held that Ms. Clark’s evidence of public discourse established she had only communicated her concerns regarding the interns with other state employees with whom she would be expected to speak as part of her job.  On review, the New Hampshire Supreme Court refused to “categorically exclude” a public employee’s communications with other public employees from 98-E’s protection and noted that the Superior Court did not have sufficient information to dismiss the plaintiff’s claim on the basis that she did not engage in public discourse, because the lower court failed to determine whether any of plaintiff’s communications with other state employees were made in “public.” 

The Court determined that “the word ‘publicly’ [in the statute] excludes a public employee’s communications with other public employees only if the communications could not be observed or accessed by members of the public.”  Accordingly, although the Court agreed that private conversations with her supervisors likely did not constitute protected speech, the lower court’s dismissal of the plaintiff’s RSA 98-E claim was inappropriate where the Superior Court failed to make a finding on whether any of the plaintiff’s communications regarding the interns could have been observed or accessed by the public.  The Supreme Court further held that the plaintiff’s supervisor’s order not to speak with the state senator raised a material dispute as to whether the supervisor interfered with the plaintiff’s protected speech.  The Supreme Court noted that the record was unclear whether the plaintiff intended to speak to the senator in her official or individual capacity, and because the supervisor’s order limited her ability to speak to the senator about any issue, not just the confidential employee review.  The Court remanded the plaintiff’s statutory free speech claim back to the Superior Court.

The Clark case should remind public employers to tread carefully when addressing matters of employee speech.  As addressed above, while not unlimited, the protections for employee speech are broad and may only be defeated with a sometimes intensive case-by-case fact analysis.  To avoid unintentionally interfering with employee rights, public employers faced with employee speech matters would be wise to reach out to counsel before attempting to address the concern with the employee to ensure that all material factors have been considered and weighed in advance.

Footnotes

1 The facts recited herein are specifically relevant to the plaintiff’s free speech claim.  Additional facts were alleged in the suit related to other asserted claims, such as a whistleblowers’ protection act claim, interference with contract, wrongful discharge/demotion, etc.  Of particular note, in addition to its overview of employee’s rights under RSA 98-E, the Court determined that (1) New Hampshire does not recognize a claim for common law “wrongful demotion”; (2) compensatory damages are not available under New Hampshire’s Whistleblower’s Protection Act, RSA 275-E; and, (3) pursuant to the Court’s general equity jurisdiction, it may enjoin the individual defendants from engaging in allegedly ongoing retaliatory behavior in violation of RSA 275-E.

[2] In addition to the Department and other individuals, the plaintiff included her supervisor and the Director of the Unemployment Compensation Bureau as named defendants in the suit.

Anna Cole is a member of DrummondWoodsum’s Labor and Employment Group.  Her practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship.  This is not a legal document nor is it intended to serve as legal advice or a legal opinion.  Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2019 Drummond Woodsum.  These materials may not be reproduced without prior written permission.”