Archive for October, 2010
Tuesday, October 26th, 2010
The New Hampshire Supreme Court decided an interesting case this week concerning the right of a party to participate in his civil case via telephone, when he is unable to attend the hearing in person, due to the fact that he is in prison.
According to the Bellingham Herald, in Washington state, Buzzard has been in prison since 2003 for sexually assaulting a child. He will be eligible for parole in March, 2011. The New Hampshire Supreme Court’s decision says that while incarcerated, Mr. Buzzard filed a small claim in Nashua District Court. The small claim alleges that Mr. Buzzard ordered some magazines and photographs from the defendants, Ariel Shea and F.F. Enterprises, a now-defunct operation out of Nashua. Mr. Buzzard alleged that the defendants took his $60.00 but failed to deliver the pictures and magazines as promised.
Not surprisingly, Mr. Buzzard was unable to attend the hearing in the Nashua District Court, as he was in prison. He petitioned the court to allow him to appear telephonically, and even arranged with the Washington authorities to have a telephone available to him. The Nashua District Court denied this request, and when Mr. Buzzard predictably failed to appear for his hearing, the court dismissed his small claim.
The Supreme Court accepted Mr. Buzzard’s appeal, and held that the Nashua District Court should not have dismissed his case. The Court noted decisions from other state and federal jurisdictions in which courts have found that it was fundamentally unfair to prevent an inmate from being heard in court. The Supreme Court ruled that the lower court was at least required to consider whether the “countervailing considerations such as expense, security, or logistics” were sufficient to preclude the imprisoned litigant from participating in his trial telephonically.
The Nashua District Court will now have to reconsider whether to allow Mr. Buzzard to phone in his case.
The implications of this case may be more significant than Mr. Buzzard’s interest in getting his pictures or the return of his $60.00, however. A person does not forfeit his constitutional right to petition the court for a redress of grievances when he is imprisoned. A criminal conviction and sentence strips a person of many of his rights, most obviously, his right to remain at liberty and be free. However, inmates still have a fundamental right to access the court system. This case requires that courts consider the various means available to allow even prison inmates to exercise this important right.
Friday, October 22nd, 2010
The Austin, Texas police chief, echoing the desires of Mothers Against Drunk Driving and other advocacy groups, has endorsed a brand new category of drunk driving offense based on an even lower level of blood alcohol content (BAC). This new category of proposed offense in Texas would be called “Operating While Ability Impaired,” and would be intended to address cases in which a driver has a BAC between .05 and .07. The Austin chief argues that “the new offense would give prosecutors and judges and juries another tool to use” against drivers who drink. Their argument claims that sometimes it can be hard to get convictions for DWI, so prosecutors may be forced to plea bargain cases in order to get convictions.
Of course, nobody who drives wants to share the road with drunk drivers but local politicians should not be tempted to bring the new law under consideration in Texas to New Hampshire. Under New Hampshire law, a driver can already be convicted if his ability to drive is impaired to any degree. We all have different internal chemical make ups. Some of us are not impaired at .05 or even at .08. Others of us should not be driving after having anything to drink, even if out BAC is .03. The DWI-law-enforcement-industrial-complex makes no effort whatsoever to distinguish between these different kinds of people. Under our law, when it comes to breath testing, at .08, everyone is guilty by definition. For New Hampshire to adopt a law such as the one proposed in Texas would only make this situation worse.
Friday, October 22nd, 2010
If you become pregnant, and your doctor advises you at some point during your pregnancy that you should stop working, should you worry about losing your job?
Generally, there is no reason to fret because New Hampshire law protects you. New Hampshire law requires employers to “permit a female employee to take leave of absence for the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions.” New Hampshire law also protects pregnant women when they are ready to return to work. “When the employee is physically able to return to work, her original job or a comparable position shall be made available to her by the employer unless business necessity makes this impossible or unreasonable.”
Be mindful, however, of the fact that an employer must have at least 6 employees in order to be required to extend these protections to pregnant workers.
Friday, October 22nd, 2010
An employer may face liability for sexual harassment to which an employee is subjected after hours and outside the workplace setting. In the New Hampshire Federal Court case of McGuinn-Rowe v. Foster’s Daily Democrat, the female employee, an account representative, alleged that a management-level employee leaned against her at a bar and, later the same night, rubbed himself against her.
The employer argued to the Court that it should not be held liable for the conduct occurring at the bar because “it occurred away from the workplace and outside normal working hours.” The Court disagreed. First, the Court said that the incident at the bar was “relevant to the issue of whether the [employee] experienced a hostile environment at work.” The Court found that the harassment of an employee both at work and at her home when she was off-duty supported an actionable claim for sexual harassment. The New Hampshire Federal Court also held that the employer could be held liable for the harassment if it knew or should have known about the harassment’s occurrence and failed to take appropriate steps to halt it, regardless of whether the harassment occurred on or off work premises.
So, just because a boorish supervisor or co-employee harasses you away from the workplace rather than at the workplace does not mean that the employer is off the hook. If you are a victim of such harassment, be sure to notify your employer promptly so that the employer has the opportunity to meet its obligation to undertake corrective action. You should also consult an experienced employment attorney to gain a full understanding of your rights.
Wednesday, October 20th, 2010
An employee’s entitlement to unpaid commissions after employment ends is a major source of confusion. This confusion is illustrated by a recent case decided by the New Hampshire Department of Labor.
In this case, a salesman worked for a weekly salary plus certain commissions in the form of incentive bonuses provided his sales exceeded certain sales goals. During his employment, he worked on a number of sales and orders that weren’t completed and paid at the time he was terminated from his employment. Those sales and orders were eventually completed and paid by the customers generating sales numbers that would have put him substantially over the goal that triggered payment of incentive bonuses. The salesman filed a wage claim with the New Hampshire Department of Labor seeking more than $50,000 in unpaid commissions. The employer claimed that no commission was due because substantial additional work had to be done by others. The Department of Labor ruled that a person employed on a commission to solicit sales orders is entitled to his commission when the order is accepted by the employer.
New Hampshire follows the “general rule” on payment of commissions:
“[A] person employed on a commission basis to solicit sales orders is entitled to his commission when the order is accepted by his employer. The entitlement to commissions is not affected by the fact that payment for those orders may be delayed until after they have been shipped. This general rule may be altered by a written agreement by the parties or by the conduct of the parties which clearly demonstrates a different compensation scheme.”
In the above case, because there was nothing in writing to depart from this general rule that would have required him to be employed on the date the orders were completed and paid to receive the commissions, the Department ruled he was entitled to commissions. If you have a similar issue or any type of wage claim, please feel free to call us because we represent employees like you.
Wednesday, October 20th, 2010
Have you experienced a spontaneously ruptured tendon, vision damage, ligament/joint damage, or other serious side effects after taking prescription Avelox® antibiotic? Avelox® is the brand name for a fluoroquinolone antibiotic. Other antibiotics in the fluoroquinolone family include Cipro® and Levaquine®. The FDA has issued its most serious “black box” warnings for these antibiotics due to the severe and potentially permanent nature of some of the possible side effects. Spontaneous tendon rupture and other forms of serious connective tissue damage are not uncommon, even in otherwise fit and healthy individuals. These drugs are supposed to be prescribed for only the most serious, life-threatening types of infections. Unfortunately, some doctors continue to prescribe Avelox, Cipro, and other fluoroquinolone antibiotics in situations where their use may not be warranted and may be more dangerous than the infection they are trying to cure.
If you have experienced the side effects of Avelox® or other fluoroquinolone-based antibiotics, you should be aware that you may have a right to recover for your injuries. Douglas, Leonard & Garvey, P.C. is currently investigating Avelox® litigation, based on several reports from injured individuals in New Hampshire. If you are a New Hampshire resident who has suffered an inexplicable connective tissue (tendon, ligament, lumbar disc) injury and have concerns, please contact the firm without delay to learn more about your options.
Tuesday, October 19th, 2010
On October 6, the New Hampshire Supreme Court decided one of several cases arising out of the murder of a police officer in Manchester. Defendant, Michael Addison, who has been sentenced to death for that murder was hoping to attack the New Hampshire death penalty because of the fact that we have only had one death penalty verdict for shooting a police officer, and therefore, no way to compare whether or not it was fair and proportional under state law.
The New Hampshire Associations of Chiefs of Police, the New Hampshire Sheriff’s Association, the New Hampshire Police Association and the New Hampshire Troopers Association hired Chuck Douglas to file a brief favoring a restrictive review of the death penalty statutes rather than a broad construction. In their opinion, the Supreme Court rejected an attempt by the defendant to have a Special Master appointed to compare the evidence in the Addison case with all other murder cases in the United States as well as to compare all cases where the death penalty could have been imposed. Our firm was pleased to have helped out the New Hampshire law enforcement community in advocating for an opinion that was not the broad review as the death penalty opponents would like.
Tuesday, October 19th, 2010
In New Hampshire, an employer is required to inform employees in writing the rate of pay. Any change in rate of pay – such as a reduction – must be in writing.
A recent wage claim at the New Hampshire Department of Labor illustrates this requirement. A manager was employed at a business and had an annual salary of $115,000. He received his salary on a regular basis until September of 2009. At that time the employer said they were having problems making payroll and asked the manager to accept a temporary delay in the payment of his wages. The manager worked for four more months but never received the salary payments. He filed a wage claim with the New Hampshire Department of Labor and the employer came in and claimed that they had told the manager his salary was being cut, not just being delayed. The Department of Labor ruled in favor of the manager awarding him $32,500 in unpaid salary.
New Hampshire statutes require that if pay is to be reduced it must be done in writing and that had never occurred in this situation. If you have a possible dispute with your employer over wages, please give us a call because we represent employees like you.
Monday, October 18th, 2010
The impact of bullying continues to be hot topic in the media, with an increase in attention to the phenomenon of “cyber-bullying.” Recently, a Rutgers University student committed suicide after he was the victim of a high-tech cyber-bullying incident. His roommate surreptitiously procured a video of the student having sex with another male student, and then streamed the video online. The bullying victim jumped from the George Washington Bridge after posting his intent to do so on his own Facebook page.
Such cyber-bullying incidents are becoming more and more common as our youth become ever more tied into electronic media and online social networking sites. At least one study has suggested that more than 40 percent of kids in this country admit having been bullied on the internet, and 35 percent say they have received online threats. Another study reported that more than 20% of the kids who had been on the receiving end of bullying strongly considered committing suicide, and as many as 19% actually made some kind of suicide attempt. Nearly one third reported committing acts which could be considered bullying in nature. Approximately 20% admitted committing acts of cyber-bullying.
With such startling numbers, it is clear that parents and schools must be vigilant to the warning signs that bullying, even via the internet, texting, or social networks like Twitter, is occurring. New Hampshire’s revised bullying statute that went into effect on July 1, 2010, now contains a definition of “cyber-bullying,” and obligates school officials to be on the lookout for it, and to act when there is evidence that it is occurring. Unfortunately, the law does not contain a private enforcement mechanism permitting parents to hold schools accountable in court when they fail to meet the obligations placed on them by the new Act. Hopefully the legislature will reconsider this omission in the near future. Parents who are concerned should let their voices be heard at the State House.
Monday, October 18th, 2010
The goal of personal injury law is to have the person responsible for the accident fully compensate the accident victim for the injuries. Although insurance companies are experienced in valuing personal injury claims, they know that you are unfamiliar with what your claim is really worth. Under New Hampshire law, injured people are entitled to recover full, fair and reasonable compensation for their injuries.
There is no simplistic formula or mathematical calculation to determine the value of a personal injury claim. Instead, the lawyer must make this determination based on years of experience in handling personal injury cases. Generally, the value of your claim is based on two factors: fault of the parties and the type of damages suffered.
Who’s At Fault?
The degree or amount of fault of each person involved in the accident factors into the value of your case. Depending on the circumstances of the accident, we can assess whether the other person was completely at fault, mostly at fault or just a little at fault. Insurance companies will try to reduce your recovery if you were partly at fault for the accident. If fault is clear on the other person, that will prevent the insurance company from using that tactic to lower your recovery.
Types of Recoverable Damages
Looking at the types of damages suffered in an accident can help to understand the value of your claim. Damage awards can include the following:
- Medical Expenses
- Future Medical Expenses (if any)
- Pain and Suffering
- Lost Wages
- Impairment of Earning Capacity
- Emotional Distress
- Loss of Future Enjoyment of Life
Above all, determining what a personal injury claim is worth only comes from years of experience. This is an important reason to hire an experienced personal injury lawyer.