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.

Facebook, Twitter, etc. are fast becoming a popular tool for employers looking for information about future employees. The social networking sites, according to one source, are used by 45% of employers to screen potential job candidates. At least a third of those employers have rejected an applicant because of information they discovered from social networking sites where the future employee talked about drug and alcohol use, nudity, bad mouthed a former employer, bragged about misconduct or made discriminatory remarks.

This is another reminder that postings on the internet are available for many people to see – even those you don’t intend to read it or use the information. All of those folks who are having fun on the internet should realize that it may cost them a future job because for employers it’s fast, free and easy and there is a treasure trove of ridiculous information posted by people. Young people especially enjoy putting their wild and crazy times on the internet for the rest of eternity. Social networking sites, including profiles, will tell an employer most information they might want to do know but are afraid to ask such as, gender, marital status, religion, age, and even a photograph to help show ethnicity, race, etc.

For future employees, beware of what you decide to post on the internet because it may come back in many ways.

The New Hampshire Department of Labor (“DOL”) has regulations which protect hourly workers and require that employers pay you in a timely way. The regulations require your employer to pay all wages due within 8 days, including Sundays, after the expiration of the workweek on regular paydays designated in advance. Employers may pay workers less frequently, but have to meet specific DOL requirements. In this day and age, many people have been discharged by work. If that happens, under New Hampshire law, your employer must pay all wages owed within 72 hours either by physically giving payment to the employee or by mailing the payment to the employee, at the employee’s choice.

If you quit work, the employer must pay you in full no later than the next regular payday, or within 72 hours if you are not allowed to work after you tell your employer that you quit. Every employer shall pay without condition and within the required time frames all wages or parts thereof that are due. The employer must pay wages based upon recorded hours and in accordance with written or verbal agreements between you and your employer.

Wage and hour laws and regulations can be complicated but exist to protect employees. If your employer makes a mistake or willfully withholds wages based upon commissions or hourly work, you may have the right to bring a wage claim before the Department of Labor. The process is relatively quick, but an experienced employer lawyer can maximize your chances of recovering wages or commissions that are owed to you. If the DOL finds that wages have willfully been withheld, and the employer had the ability to pay those wages/commissions, you may be able to recover double damages. The lawyers at Douglas, Leonard & Garvey regularly practice before the New Hampshire Department of Labor and are available to help you recover the wages/commissions that you deserve. Call our office at 1-800-240-1988 or fill out our contact form online.

If you have suffered a work-related injury, you may be entitled to permanent impairment compensation under New Hampshire statutory law, and you may pursue your permanent impairment award years after the injury occurred.<p>>

 Most rights that New Hampshire workers’ compensation law confers on injured employees have expiration dates.  This is true of most rights under the law.  If you do not act to preserve your right within a specified time period, you lose the right.<p>

The permanent impairment award is the rare exception.  Three (3) events must transpire for an injured employee to qualify for a permanent impairment award.  First, the injured employee must reach maximum medical improvement with respect to his work-related injury.   Second, the work injury must have caused the injured employee to suffer a permanent loss of use of the function of a body part.  Third, a doctor must evaluate the percentage loss of use according to the methods prescribed by a publication of the American Medical Association called the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition.  Notably, New Hampshire Department of Labor regulations require that the carrier pay the doctor’s bill for evaluating the extent of impairment, if the employee has reached maximum medical improvement and has not previously undergone any medical evaluation for permanency.<p> 

The amount of the permanent impairment award is determined by this mathematical formula:  (Percentage loss of use as determined by the doctor) X (a certain number of weeks of disability benefits, which number depends on the affected body part) X (the injured employee’s compensation rate at the time of injury, which rate is equivalent to 60% of the employee’s average weekly wage).<p>

The Department of Labor must approve any permanent impairment award.  If the workers’ compensation carrier disputes the extent of the award owing, or disputes whether any award is owing at all, the employee may request a hearing before the Department of Labor to resolve the dispute.  The carrier will be represented by an attorney through this process, so the employee should be represented as well.<p> 

Unsurprisingly, carriers do not bend over backwards to inform injured employees of their potential rights to permanent impairment compensation.  But, unlike most other rights under the law, there is no expiration date on the right to this compensation.  If you have suffered a work injury that may have had some permanent impact on you, and you have not received a permanent impairment award, you should consult an experienced workers’ compensation attorney such as Benjamin King, Esquire, at Douglas, Leonard & Garvey, P.C. to discuss pursuing the compensation to which you may be entitled.  Call the office or fill our on-online contact form.

You know that you are about to be fired. You suspect the firing is motivated by your supervisor’s hostility toward you as a woman. You have seen company documents that you believe prove that your company is involved in widespread gender discrimination. Should you copy the documents and take them to prove your claims, if you decide to bring a lawsuit against your employer?

The New Jersey Supreme Court recently decided a case with facts similar to these. The Court adopted a 7-part balancing test to determine whether an employee is privileged to take or to use documents belonging to the employer in order to prove her claim. According to the New Jersey court, the factors that courts should consider and evaluate include: 1.) how the employee came into possession of, or obtained access to, the documents; 2.) what the employee did with the documents; 3.) the nature and content of the particular document in order to weigh the strength of the employer’s interest in keeping the document confidential; 4.) whether there is a clearly identified company policy on privacy or confidentiality that the employee’s disclosure has violated; 5.) the circumstances relating to the disclosure of the document, balancing its relevance against considerations about whether its use or disclosure was unduly disruptive to the employer’s ordinary business; 6.) the strength of the employee’s reason for copying the document rather than, for example, simply describing it or identifying its existence to counsel so that it might be requested in discovery; and 7.) consideration of the broad remedial purposes the Legislature has advanced through laws against discrimination, as well as consideration of the effect, if any, that either protecting the document by precluding its use or permitting it to be used will have on the balance of legitimate rights of both employers and employees.

If you find yourself in this situation, facing an adverse employment action and wondering if you should copy and take company documents to prove that the company is discriminating against you, you should confer with an experienced employment lawyer before doing anything. The employment lawyers at Douglas, Leonard & Garvey, P.C. stand ready to assist you. Give us a call or fill in our contact form online.

If you suffer a compensable work-related injury, the workers’ compensation carrier must pay the medical bills for all treatment that is reasonable and related to the injury. There is no time limit on this obligation. For so long as the treatment is deemed to be reasonable and related to the injury, the carrier must pay the bills.

Carriers will often try to evade this obligation, however, by arbitrarily denying medical bills. If the injured employee does nothing in response to this, the carrier will get away with not paying the bill. Don’t let the carrier get away with this!

If you are an injured employee, and your workers’ compensation carrier denies a bill for treatment that your medical providers believe is reasonable and related to your work injury, you should appeal the denial to the New Hampshire Department of Labor within 18 months of the date the carrier denies the bill.

You should enlist the aid of an experienced workers’ compensation attorney if you find yourself having to appeal the denial of a medical bill. The attorney will not charge you anything to represent you on a medical bill issue before the Department of Labor. How does the attorney get paid? If the attorney prevails for you, and obtains a Department of Labor Order requiring the carrier to pay the disputed bills, the carrier must pay your attorney’s fees. The carrier must also pay the injured employee’s attorney’s fees if the carrier denies a bill, forcing an employee to request a Department of Labor hearing, and then reverses its position and accepts the bill fewer than seven (7) business days before the hearing date. This new provision in the law, which became effective January 1, 2011, is designed to discourage workers’ compensation carriers from “playing games” with an injured employee’s medical bills.

Some carriers try to avoid their obligation to pay medical bills by ignoring them. Instead of issuing denial letters, they simply do nothing. Carriers break the law when they ignore medical bills. New Hampshire law requires carriers to either accept or deny medical bills within 30 days of receiving them. Specifically, within 30 days of receiving a medical bill the carrier must either a.) pay the bill; or b.) deny the payment, with notice to the health care provider, the injured employee, and the Department of Labor. A denial letter must state a valid reason for the denial and must advise the injured employee of the right to petition for a hearing.

If your carrier ignores your medical bills, failing to pay them or properly deny them within 30 days, you or your attorney should notify the Department of Labor so that the Department may take appropriate enforcement action. Call Douglas, Leonard & Garvey or fill out our contact form if you are having problems getting your medical bills paid.

If you are the employee who is making a complaint about unlawful discrimination or blowing the whistle on some other form of unlawful activity at the workplace, the law protects you from retaliation from your employer. However, what protection do you have if you are a witness involved in a formal investigation, or even a lawsuit?

Legally, you are generally just as protected when acting as a witness, as you would be if you were the person making the complaint. An employer cannot legally retaliate against a employee who tells the truth in an investigation or lawsuit. The protection against retaliation can be sometimes be found in statutory laws (that is, the formal legal codes enacted by your state or federal legislatures), or in the common law (the law derived from cases decided by judges). The protective measures found in legislative enactments are often part of the specific statutory scheme that an employee might rely on to make a complaint about unlawful activity. For instance, the sexual harassment laws contain specific anti-retaliation provisions that can be interpreted to apply to both a complaining employee and supporting witnesses.

If not by statute, you are protected by a claim of wrongful termination. That means that if an employer retaliates against you for cooperating with a complainant or investigator in regards to a complaint of unlawful activity, and the retaliation leads to a termination, or creates work conditions so harsh that they effectively force you to quit, you may be in a position to file your own lawsuit.

In the case you are a witness to is being investigated by a government agency, they often have the power to fine or otherwise punish an employer for retaliating against you, even in situations that are less severe than a full-blown wrongful termination or constructive discharge case. If you are retaliated against in any way, or even threatened with retaliation, you should advise the investigator or even contact an attorney.

Why should you consider engaging an attorney if you are protected from retaliation under the law? Despite the protections against retaliation, employers sometimes ignore their obligations. As noted above, the stakes in employment cases can be very high for employers and employees. An employer unscrupulous enough to break the law that led to the underlying complaint may have no hesitation when it comes to retaliating against you for helping the complainant by offering truthful information.

If you believe you are likely to be a witness in a co-worker’s employment lawsuit, and are worried about being retaliated against by your employer if you tell the truth about what happened, you should not hesitate to contact a reputable employment law firm. Because Douglas, Leonard & Garvey focuses its practice on representing employees, we can help protect you if you find yourself in this situation. Call us for a consultation or fill out our contact form.

A decision by the United States Supreme Court in January opened the door to a broader interpretation of the anti-discrimination laws. In the case before the Court, a female employee filed a sex discrimination complaint with the Equal Employment Opportunity Commission and then three weeks later the company fired Mr. Thompson, who was her fiancé. The company lawyers argued that Title VII of the Civil Rights Act does not allow third parties to bring claims of retaliation but only the individual who themselves lodged the discrimination complaint. However, the Supreme Court of the United States in an 8-0 decision said that Mr. Thompson was protected by Title VII.

Thompson was not an accidental victim of the retaliation but, in effect, was collateral damage to the employer’s unlawful act. By terminating him they were retaliating against the female who had filed the charge and that was an unlawful act of punishment against her, although it was indirect. Mr. Thompson was in the “zone of interest” to be protected by Title VII and thus has standing to sue.

When does an office romance qualify as a close relationship? What if the couple had only been dating for a week or two? These are the issues left for future cases and future employers. It is a warning to employers to consider whether the person they are firing has a relationship to the complaining party such that it would be considered retaliation.

Douglas, Leonard & Garvey represents employees in discrimination and retaliation cases but we know that each case turns on its own unique and individual facts.

In a recent case the employer hired a woman named Holms but a month later she announced she was pregnant. It was not long before the President of the company made it plain that he was very unhappy about having to find someone to fill in when Ms. Holms went out on leave to have her baby. She used the company computer to e-mail her attorney to ask about whether her treatment had created a hostile work environment, what her rights were, and what her options were.

The trial judge sided with the employer because of a policy that prohibited the use of company e-mail for personal matters and giving the employer the right to inspect “all files and messages at any time.” A court in California upheld a verdict for the company concluding that the female employee’s e-mails were not protected by attorney/client privilege because she had used a system that was open to inspection and monitoring by third parties as opposed to having sent an e-mail from her home to her lawyer.

On the other hand, the New Jersey Supreme Court has held that an employer cannot read an employee’s e-mails to her lawyer. Thus, this area of the law will depend on the judge and location of the court deciding the question. So, employees need to think twice before they use an employer’s computer to contact their lawyer—it may or may not be discoverable.

With the recent employment situation some unemployed people are willing to do an observation period by working for free for a company to see if the fit will work and a paid job would open up.  Recently, the New Hampshire Department of Labor had a wage claim by a woman who worked for 63.5 hours at a hair salon during her observation period.  She volunteered her time, but when she ultimately was unable to get a job she filed a wage claim for minimum wages that were never paid.  The Department of Labor ruled in favor of the employee and said that the employee had clearly been permitted to engage in work and therefore, was entitled to receive the minimum wage rate for the hours she claimed to have worked.  Another case, involving a landscape company, had a similar result where the owner’s girlfriend worked several hours a week to help out.  Thus, taking on an unpaid helper may result in their getting paid after all.