Misclassification of employees as independent contractors is a violation of New Hampshire law, and it fundamentally undermines New Hampshire’s strong business climate.

Misclassification for purposes of workers’ compensation or the payment hourly wages creates a competitive disadvantage for law-abiding businesses.  More importantly, it leaves those workers who are really “employees” without benefits, such as workers’ compensation or matching social security contributions, which they are entitled to receive under the law.

Misclassification deals primarily with hiring practices used by some employers to avoid obligations they have under the law.  These obligations include providing workers’ compensation coverage, unemployment coverage and other taxes, withholdings and benefits for their workers.

There are workers in New Hampshire who truly operate as independent contractors.  But there are also businesses that require their workers to call themselves independent contractors in order to gain an unfair competitive advantage.  The employer will pay the worker, but the employer does not provide benefits to the worker, including mandated workers’ compensation coverage, social security contributions, matching federal unemployment, etc.

The state now has a Web site – www.nh.gov/nhworkers – where anyone can report suspected misclassification or other workers’ compensation-related issues in a secure environment.

The misclassification of employees or independent contractors is a fraud that costs all of us – - from the individual worker who is misclassified and missing certain benefits to the employers who play by the rules.

If you are contemplating a lawsuit, or perhaps just filed one, you have probably heard that the court requires the parties to “mediate” the case.  What is mediation, and is it something you want to take part in?

Mediation is a type of “alternative dispute resolution.”  Simply put, it is a formalized method by which you attempt to settle your lawsuit before going to trial.  It is often confused by lawpersons with arbitration, which is an alternative form of trial judges rather than an actual judge and jury.

How does a mediation work?  Typically the parties agree on a mediator as the first step.  The mediator is typically an attorney or retired judge.  The choice of mediator is very important.  An inexperienced or unmotivated mediator will not be effective in driving the mediation process to a successful resolution.  Experienced trial attorneys will know the right mediator for the case, and will insist on using the right mediator in your case.

Once the mediator is selected, the mediator process typically begins by having all the parties meet and their representatives meet in one room.  The lawyers for the parties typically give a presentation of what they believe the evidence will demonstrate at trial, and try to highlight the strengths of their case, and the weaknesses of the other side’s case.  It is not uncommon for the plaintiff to explain how the defendant’s conduct has personally impacted him or her, and also not uncommon for the mediator to ask questions of both sides to help clarify certain points and potentially to highlight key issues in the case which parties may not have fully appreciated before the medication begins.

At that point, the parties typically separate and go into different rooms.  It is at this point that the plaintiff makes a demand for a certain amount of money (which is typically much higher than what their attorney ahs told them to expect as an end result) and the defendant makes an offer to pay the plaintiff a certain amount (almost always much lower than what they actually expect to pay) of money to dismiss the case.  The mediator then goes back and forth between the rooms in a process of “shuttle diplomacy.”

During each visit with the mediator, the parties discuss the amount of their demand or offer the settle, and the strengths and weaknesses highlighted by the other side.  The goal is to keep reducing the plaintiff’s demand, and increasing the defendant’s offer, until they meet at some point.  If they meet, then the case is settled.  If the defendant is unwilling to pay the lowest amount the plaintiff is willing to accept to settle the case, then the mediation will end and the parties effectively pretend it never happened.

In a successful mediation, the parties decide the outcomes of the case, rather than allowing a third party to do it for them.  If the mediation fails, then the parties simply proceed to trial, and treat the mediation as if it never happened.  The jury never hears about what happened at the mediation.  Everything that happens at the mediation is kept strictly confidential, to encourage the parties to be open and honest about their case and make the best effort possible to resolve it.

Successful mediations depend tremendously on the skill and experience of the parties’ counsel and the mediator.  Picking the right mediator is crucial, but having the right attorney is even more important.  An experienced trial attorney will have the experience to value your case, and to make the most effective use of the mediation process to get the other side to pay the most money they are willing to offer, and not take the risk of undervaluing your case.

Considering that most cases settle before trial, and many of those settle in mediations, it is important to choose the right attorney to handle your case in order to ensure your case is worked to get you the full compensation you deserve.

Around the country, including New Hampshire, more and more lawsuits are being filed by parents against school districts who allow students to be bullied by other students.  Awareness of bullying as a serious child safety issue is at an all-time high, as is parental awareness of legal options to deal with serious bullying cases.

A suit was filed in January of this year by a mother in New York, alleging that her son’s school district failed to protect him from bullying that took place on his school bus.  A suit claiming $10 million in damages was filed in Virginia by the mother of a student who committed suicide after being repeatedly hazed by another student.    The mother alleged that the school was aware of the bullying and did nothing to stop it.  Another $10 million suit was filed in Maryland in April by a grandmother who claims that bullying drove her grandson to hang himself after school officials ignored his repeated complaints about the treatment he was receiving from other students.  Another attempted suicide case in Wisconsin led to a lawsuit by the mother of a quadriplegic child who was aggressively taunted by classmates.

These are difficult cases to bring and a variety of legal theories are being used in this new wave of bullying cases with mixed results.  Some of them rely on anti-bullying laws, like the ones New Hampshire recently updated in the wake of the Phoebe Prince case in Massachusetts.  Others rely on Title VII or Title IX of the Civil Rights Act, and are based on unlawful sexual harassment and discrimination.  Many rely on simple common law theories like negligence and negligent supervision.

If your child has been the victim of bullying, and your school system refuses to take the necessary steps to put a stop to it, you need to contact a law firm with trial experience.

In a recently issued decision, the New Hampshire Supreme Court took the highly unusual step of reminding prosecutors that their duty is “to seek justice, not merely to convict.”

The case State v. Leveille, slip op. August 19, 2010, was an appeal from a conviction of first degree assault.  The case began as an unfortunate family dispute involving snow removal and allegations of improperly parked carse, and ended with gunshots fired.  Mr. Leveille was charged with attempted murder, first degree assault, and second degree assault.  Although the decision does not detail the facts, Mr. Leveille apparently introduced evidence that the gun discharged by accident and asked the judge to instruct the jury to acquit him of attempted murder and first degree assault if it believed that the gun discharged accidentally.  Despite the fact that there was evidence that the gun discharged accidentally, the prosecutor did not want the judge to instruct the jury that Leveille should be acquitted if the jury believed the gun discharged accidentally.

The superior court judge rejected the prosecutor’s efforts to limit the jury instructions, and advised the jury to acquit if it believed that the gun discharged accidentally.  The Supreme Court agreed with this decision, but was clearly not amused by the prosecutor’s attempt to prevent the jury from hearing the complete statement of law sought by the defense.  Since the Court did instruct the jury that an accidental discharge could lead to a not guilty finding, Mr. Leveille’s conviction was upheld.  Hopefully, the Court’s warning to prosecutors to seek justice will be heeded.

You are wrongfully terminated from your job, or are forced to quit when the illegal discrimination you are subjected to becomes more than any reasonable person would be able to bear.  Can you, or should you, rely on unemployment, or the “promise” of receiving your lost wages from the lawsuit your attorney says you should file?

The answer is “no.”  In virtually every state, and certainly in New Hampshire, the law requires you to take reasonable steps to “mitigate” your damages, including the wages you lose after having your employment terminated illegally.  That means you must make a reasonable effort to find a new job.  That does not mean that you have to take the first minimum wage job that comes along, if you were previously employed in a highly-qualified position making far more than that.  But you are legally required to use your best effort to find employment roughly comparable to the job you lost, considering pay, expertise, qualifications, etc.

What happens if you do not make an effort to mitigate your damages?  Failure to do so can harm your ability to obtain the full amount of your lost wages in a lawsuit.  If there is evidence that you just sat back and waited to cash in on the lawsuit, expecting the defendant to pay for a “vacation” while the lawsuit was pending, a court can drastically reduce the amount of lost wages you are able to recover.  On the other hand, making a serious and sustained effort to obtain new employment will help to enhance your credibility with a judge or jury, and make it more likely that you will obtain a full recovery.

It is also important to remember that if you do obtain an award for lost wages, you may have to pay back some of the unemployment benefits you may have received while looking for a new job.  It is best to minimize that amount by finding a new job as quickly as possible.

Simply put, there is no “free lunch,” even when you are the victim of a wrongful termination or prohibited workplace discrimination.  Most people faced without income from a paycheck will need to find a new job.  It is important to keep records of your job search efforts such as keeping copies of any job applications you complete (even if completed online) or cover letters and resumes you submit.  These records will go a long way to defeat any claim by an employer that you failed to “mitigate.”

E-mail is both a blessing and a curse.  It is a blessing because it is such an efficient way to communicate, substantially reducing those annoying games of telephone tag that employees often had to play in the not-so-distant past, when e-mail was not a fixture in every office.  It is a curse because we often send e-mails unthinkingly, not paying sufficient heed to what we write before we hit “send.”  Once you hit that “send” button, and you send an e-mail from your office account, you have created a permanent written record to which your employer has access.  Have you given your employer ammunition if your employer wants to fire you?

Most employers now have electronic communications policies governing e-mails that employees send from company accounts.  Usually, such policies state that employees should primarily use company e-mail for work-related purposes.  Sometimes the policies will state that the company permits limited use of company e-mail for personal purposes.  The policies generally will provide, however, that employees must keep the content of their e-mails professional and free of any content that is sexual, threatening, vulgar or otherwise improper.

You should familiarize yourself with any electronic communications policy that your employer may have adopted.  Regardless of whether your employer has such a policy, however, you should ensure that e-mails that you send from your company account are free of any content that your employer could later use against you.  If your employer wants to fire you for an illegal reason, your employer will likely search for a legitimate business reason to justify the termination decision.  These days, the first place an employer typically searches for such a legitimate business reason is the employee’s e-mail account.

Do you regard your fellow employees as your friends?  Do you chat with them during the workday regarding details of your personal life?  Do you sometimes socialize with them after work and talk about personal matters?

If so, consider changing your habits and keeping your private information private.  Why?  It’s certainly desirable to be friendly with your co-workers.  A harmonious workplace is certainly more pleasant and productive than an acrimonious one.

Yet, personal information that you share with your co-employees can come back to haunt you if you are fired.  Suppose that you share details of stormy times in your marriage with your co-workers or, worse yet, with your supervisors.  Then suppose you are sexually harassed in the workplace.  You report the harassment and the company fires you a short time later, purportedly for “poor performance.”

You bring a claim for harassment and retaliatory discharge against your employer, claiming emotional distress as an element of your damages.

Your employer will almost certainly use the information that you shared about your domestic discord against you in at least two (2) ways.  First, the employer will claim that you were unproductive and a “poor performer” in the workplace because you spent so much time talking about your personal problems.  Second, your employer will claim that whatever emotional distress you claim stems from your marital problems, not from the alleged sexual harassment.

Keeping private information private when you are in the company of your co-workers guards against the danger that your employer may someday use as a weapon against you the confidences that you shared.