The New Hampshire Department of Labor recently decided a wage claim against an employer who had handed out to its employees a paragraph that was to be inserted into the employee handbook. The paragraph said that if an employee became employed by a competitor they would forfeit all vacation, sick and personal time accrued. The employee in question denied ever receiving the addendum to the handbook but both sides agreed he had never signed anything acknowledging receipt of that change. When the employee was denied over $3,000 in vacation and sick time he appealed to the Department of Labor and it ruled in his favor.

Under New Hampshire law, the employer must obtain a signed notification from an employee reflecting a change of its practices or policies affecting paid vacations, holidays, sick leave, bonuses, severance pay, personal days, payment of employee expenses, pensions or other fringe benefit for it to be effective. That does not mean the employee can negate the employer’s changes but the employee must acknowledge receipt of the change.

In the recent case, Glik v. Cunnifee, 665 F.3d 78 (2011), the First Circuit Court of Appeals in Boston recently held that the First Amendment protects the right of citizens to make video and audio recordings of police officers arresting people on the street. The federal court decision was particularly relevant in New Hampshire, where police officers in Manchester, Nashua, Weare, Portsmouth and Keene, have recently charged citizens with violating the New Hampshire wiretap statute for recording police officers performing their pubic duties.

Mr. Glik observed and recorded Boston police officers arresting a citizen on Boston Common. Believing that the police were using excessive force, Glik advised the police that he was capturing their actions on video. The police arrested Mr. Glik and charged him with violating the Massachusetts wiretap statute. His criminal charges were ultimately dismissed and Mr. Glik then sued the officers involved and the City of Boston for violating his civil rights. The police and the city asked the court to dismiss the civil rights claim, but the court denied their request.

The court held that the protections of the First Amendment are not limited to the mere act of speaking or publishing words that the government may not like. “It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, the First Amendment goes beyond protection for the press and the self-expression of individuals to prohibit the government from limiting the stock of information from which members of the public may draw.”

The Court continued, writing that “the filing of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about public officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs. The court concluded by stating that, “the freedom of individually verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

Police officers do not have easy jobs. However, the mere fact that performing their day to day activities may require them to endure certain unpleasantries does not change the fact that they perform their public duties in the name of the public, using equipment provided by the public, and to serve a public purpose. Monitoring and even criticizing the use of public authority and funding goes to the very heart of citizen activism that the First Amendment was specifically written to protect. The First Circuit Court of Appeals decided this case correctly and protected the public’s right to know.

If you carry motor vehicle insurance (and you should if you drive!), an element of your coverage is called medical payments coverage, or medpay. Many people do not know what this coverage is for.

Furthermore, many people don’t have much of it. Most people have only $5,000.00 in medpay. Many people only have $1,000.00 of the coverage.

Medpay is coverage available to pay the medical bills you may incur as a result of medical treatment you require for injuries suffered in an automobile accident. It is available to be used by you even if the accident you were in, and the injuries that you suffer as a result of it, were the fault of the other driver.

Injury victims should use their medical payments coverage to pay their medical bills for injuries caused by another driver’s negligence because use of this coverage can help the injured person keep more of the money that he or she may ultimately recover from a personal injury claim arising from the accident. If you suffer injuries in an automobile accident that another person causes, and you submit your medical bills to your health insurance carrier, your health insurance carrier will have a lien over any recovery you obtain from a personal injury claim against the person at fault. This means that your health insurance carrier will be able to recover–from any settlement or judgment you obtain from the person at fault–the monies that it paid for your medical bills, or at least a portion of those monies. Your motor vehicle insurance carrier, by contrast, has no lien relative to the medical bills it pays under your medical payments coverage. So, if you use your medical payments coverage rather than your health insurance to pay medical bills related to treatment for your accident injuries, you will be able to keep for yourself a larger portion of any settlement or judgment that you obtain from your personal injury claim.

For these reasons, you should also carry as much medical payments coverage as you can afford. Five thousand dollars doesn’t go far if another’s negligence causes you to need treatment in an emergency room. In order to make sure that you receive all the compensation that you deserve when you suffer injuries because of another person’s negligence, you should consult an experienced personal injury attorney such as one of the attorneys at Douglas, Leonard & Garvey, P.C. in order to protect your interests. Call us at 1-800-240-1988 or fill out our online Contact Form.

President Obama recently announced that the United States would pull its troops out of Iraq by the end of the year. This announcement likely means that many soldiers will be returning to civilian status and seeking jobs–in many cases the jobs they held before they were deployed.

Returning soldiers and their employers need to be aware that returning soldiers hold special rights to reinstatement under a Federal law called the Uniformed Services Employment and Reemployment Rights Act (USERRA). Under USERRA, the employer of a returning soldier must reemploy the soldier if the soldier meets certain conditions. First, the soldier must have provided the employer advance notice of his service. Second, the soldier’s absence from employment must not have exceeded five (5) years. Third, the soldier must report the intent to obtain reemployment within 90 days of the completion of the soldier’s period of service.

Employers that violate USERRA face steep penalties. The employer must pay all lost wages the returning soldier incurs as a result of the employer’s breach of its duty to reemploy the soldier, plus an additional amount equivalent to the soldier’s monetary losses as “liquidated damages” for a willful violation of the law or a reckless disregard of it. The employer must also pay the soldier’s reasonable attorney’s fees.

If you have returned from service and have been denied reemployment by your employer at the time of your deployment, you should contact an experienced employment discrimination attorney such as the attorneys at Douglas, Leonard & Garvey, P.C. to make sure your rights are protected. Call our office at 1-800-240-1988 or complete our online contact form.

Chuck Douglas and Jason Major of Douglas, Leonard & Garvey just finished a two-week long jury trial in Merrimack County with a $150,000.00 victory against the New Hampshire Department of Corrections in a free-speech case brought by correctional officer Mark Jordan. Here is a copy of the jury verdict form completed by the jury.

Mr. Jordan was suspended without pay or benefits for a year following a parking lot altercation started by another Corrections Department employee on March 10, 2010. Corrections Commissioner William Wrenn also referred the case to the State Police for criminal charges against Mr. Jordan. Evidence that demonstrated that the other employee was the aggressor was available to but ignored by Commissioner Wrenn. The aggressive employee, who had a history of angrily confronting his co-workers, was not placed on suspension or charged with any crime.

Why was Mr. Jordan singled out and placed on a year-long suspension without pay if he was not the aggressor in the parking lot incident? Mr. Jordan happens to be the president of the New England Police Benevolent Association chapter that represents New Hampshire correctional officers. He had been a vocal advocate for the safety of his fellow officers in late 2009 and early 2010, going on the record to challenge what his union saw as dangerous choices to layoff 56 correctional workers (leading to unsafe levels of understaffing), and Commissioner Wrenn’s support for SB500, a bill which proposed the early release of violent offenders and provided weaker sentences for parole violators. Mr. Jordan also began an investigation of allegations of corruption at the Men’s Prison in Concord related to excessive force charges against a fellow correctional officer, which he also made public.

Following the voicing of his opinions in early 2010, Mr. Jordan’s previously strong personal relationship with Commissioner Wrenn broke down, and when the parking lot altercation occurred on March 10, 2010, Wrenn seized the opportunity to attempt to silence and discredit Mr. Jordan by placing him on suspension and under a criminal investigation (which led to a simple assault charge) for a full year. Mr. Jordan was acquitted of the criminal charges against him on February 28, 2011, and finally returned to his job in June of 2011. The State did provide him with back-pay for the year of work he missed, and retroactively reinstated his health insurance.

However, the State refused to acknowledge the damage done to Mr. Jordan while he was out of work without pay. Mr. Jordan fell behind on his bills and his family had to make sparing use of medical care despite a serious health condition that Mr. Jordan suffers from (which came to light after he was assaulted by an inmate in 2009). Mr. Jordan’s wife Pam described the year without pay and benefits, with bogus criminal charges hanging over Mr. Jordan’s head, as being a “year of hell,” with fear and desperation predominating over their family during that time.

The case was tried before Superior Court Judge Richard McNamara from October 18 through October 28, 2010, resulting a verdict for Mr. Jordan in the amount of $150,000.00. The case was tried under RSA 98-E, a statute which guarantees the free speech and criticism rights of State employees like Mr. Jordan. It is believed to be the first jury verdict under RSA 98-E. The statute provides for an award of attorneys’ fees to the prevailing party as well as damages. The case received press coverage in both the Union Leader and Concord Monitor.

We have commented before about Facebook and the concern that certain employees may be posting comments about co-workers or their boss in violation of employer policies. Of course, if the employee is unaware of a policy against cell phone usage during work, or Facebook postings, then they cannot be disciplined for violating an unknown and undistributed policy.

On the other hand, if you have been warned and specifically shown a policy at work, then termination or discipline is possible depending on whether the policy calls for termination or merely discipline. Some employers use a Facebook comment as a pretext for firing workers who otherwise had complained about bad management practices. Each case will turn on its facts, so just be aware that the comments you make on your cell phone or computer are potentially going to be used against you by your employer. Employers should also be aware that undistributed policies or seat of the pants decisions do not count as a proper basis for termination or discipline. Employees cannot be expected to be mind readers.

A waitress waited on tables during the week but when she asked to pick up extra shifts on the weekend she agreed to work only for tips until business picked up. After she worked for several hours over weekends she filed a wage claim for unpaid compensation. The New Hampshire Department of Labor hearing officer held that despite the oral agreement that she was only working for tips, the employer was not relieved of its obligation to pay an hourly wage. The waitress was awarded almost $4,000 for the weekends she worked over the year.

Because the employer had not kept accurate employee records it was not able to reduce the amount she claimed she was owed. Employees should get whatever their compensation understandings are in writing. Otherwise, you can end up hoping that you win a Department of Labor hearing. Of course, the employer has the duty to reduce the deal to writing and keep accurate records, though many small employers don’t do that.

As a technician for a heating company providing on-site maintenance and service, the employee was required to travel. Because he was an hourly employee he used a time card and at the end of each work day had to return to the home base of the operation to punch out. The employer and an employee had an oral side agreement that the employee would not be paid for travel time from his last service stop to the employer’s residence which was where the company was located. After the employee filed an unpaid overtime claim he obtained almost $15,000 from the Department of Labor. The employee’s records indicated he was owed approximately a half hour’s pay for each day involved but because the employer could not produce better records, the estimate by the employee was adopted as the proper measure of unpaid wages. Once again, oral side deals can get an employer into trouble.

Several states have recently enacted “medical malpractice reform” which places arbitrary caps on damages awards. Those in favor of such caps argue that doctors will no longer have to worry about “frivolous lawsuits” and “higher malpractice insurance premiums.” This is wrong because arbitrary damages caps will not accomplish either of those goals. Instead, these proposals harm victims who are left with life-changing injuries and shield negligent medical providers for the injuries they cause.

Arbitrary damages caps are easy to believe in when you or a family member have never been a victim, or worked with victims, of medical negligence. The reality is that damage recovery in medical malpractice cases hardly compensates victims for their injuries or even death. Placing limits on these victim’s ability to obtain a “full” recovery (as impossible as that is) lets off the hook the negligent medical providers.
The idea of “reform” begs the question: why focus on limiting the recovery of a victim. The real problem is the huge number of medical negligence victims in the United States each year. True “reform” should address ways to reduce or eliminate medical malpractice victims. These medical mistakes injure and kill thousands of Americans every year. Some shocking statistics reveal the following:

In 1998, the Harvard Medical Practice Study published in the New England Journal of Medicine estimated that 98,000 people die as a result of malpractice committed in hospitals each year.

In 2000, the Institute of Medicine published an article entitled, “To Err is Human: Building a Safer Health System,” which stated that in any given year, more people die as a result of medical errors than from motor vehicle accidents (43,458) or breast cancer (42,297) or AIDS (16,516).

In 2003, the Congressional Budget Office found that there were 181,000 severe injuries attributable to medical negligence.
In 2004, HealthGrades, the nation’s leading health care rating organization, found that “The United States loses more American lives to patient safety incidents every six months than it did in the entire Vietnam War. This also equates to three fully loaded jumbo jets crashing every other day for the last five years.”

In November 2010, the U.S. Department of Health and Human Services reported, “An estimated 1.5 percent of Medicare beneficiaries experienced an event that contributed to their death, which projects to 15,000 patients in a single month.”

In January of 2011, the obstetrics department of the Cornell Weill/Columbia Presbyterian Obstetrics and Gynecology Department in New York City published a study that showed that they had reduced their malpractice premiums, and more importantly, their malpractice claims by an astounding 99 percent by simply re-examining and redoing their policies and procedures. There was no cap placed on their creativity.
(taken from http://blog.syracuse.com/opinion/2011/06/medical_profession_at_fault_fo.html)
As the Cornell Weill study demonstrates, reducing malpractice claims and insurance premiums is done most effectively by the medical industry itself. As with attorneys, it only takes a few bad doctors/hospitals/medical boards who allow repeat incidents to drive up insurance costs for everyone else. If lower malpractice claims and insurance premiums are the goal, then stricter self-policing and better medical practices by medical professionals and medical boards is the best way of making sure that costly accidents are reduced or eliminated.

Doctors who cause life-altering injuries or death must be held accountable not off the hook and shielded from their wrongdoing.
“Medical malpractice reform” such as damage caps are not the answer. Medical and insurance costs are more likely to be effectively controlled through reforms and reducing medical mistakes rather than through placing artificial caps on the recovery of the people who did nothing wrong. New Hampshire victims of medical mistakes are at risk now because the issue to impose caps on damages may be brought up in the New Hampshire legislature. The insurance companies and doctors have powerful lobbies at the State House and may try to place caps on a victim’s ability to recover in New Hampshire.

If you or a family member has been harmed by a medical mistake or negligence, please give us a call at 800-240-1988 or fill out on online contact form. We have experienced attorneys who may be able to help you and your family.

When you treat with your doctor for a work-related injury, make sure your doctor completes the New Hampshire Workers’ Compensation Medical Form! The Workers’ Compensation Medical Form is a New Hampshire Department of Labor form that asks the doctor to describe the employee’s injury, state whether the injury is work-related, and state what restrictions the injury imposes on the employee’s physical functioning. The form further requires the doctor to state whether the employee can work or whether the injury has disabled the employee from working.

Your doctor must complete the Workers’ Compensation Medical Form in order for you to receive the benefits that you should. You will not receive any workers’ compensation benefits without a form from your doctor certifying that the doctor believes you have suffered a work injury. You will not receive disability benefits without forms from your doctor stating the time periods during which your injury disabled you from work.

Even in cases where it is clear that an employee has suffered a disabling work-related injury, the doctor sometimes forgets to complete the New Hampshire Workers’ Compensation Medical Form. This omission can disqualify injured employees from receiving the benefits they should. If you are an injured employee, make sure your doctor completes the form so your entitlement to benefits is not jeopardized. If you have a work-related injury, give us a call at 1-800-240-1988 or fill out on online contact form to see if we can be of assistance.