Two recent New Hampshire courts reaffirm the right to bring a a constructive discharge claim under New Hampshire law.
In Jeffery v. City of Nashua, the New Hampshire Supreme Court held that to establish a constructive discharge, a plaintiff “must show that her employer rendered her working conditions so difficult and intolerable that a reasonable person would feel forced to resign.”
The next case was Gavin v. Liberty Mutual, decided by the United States District Court for the District of New Hampshire. The Court explained that a constructive discharge is an element of a wrongful termination claim.
In New Hampshire, to prevail on a claim for wrongful termination, or wrongful discharge, as the cause of action is also known, a plaintiff must establish that: (1) the termination was motivated by bad faith, retaliation or malice; and (2) that the employee was terminated for performing an act that public policy would encourage or for refusing to do something that public policy would condemn. So, the first prong focuses on the nature of the employer’s actions, while the public policy prong pertains to the employee’s acts.
If you believe you are the subject of wrongful termination or wrongful discharge, you should consult an experienced New Hampshire employment attorney at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online Contact Form.
ARE YOU CONSTRUCTIVELY DISCHARGED IF YOU STILL HOLD YOUR TITLE AND A NOMINAL SALARY FROM YOUR FORMER JOB?Thursday, May 24th, 2012
Anna Tilton and Andrew Christie were elected Registers of Probate in two of New Hampshire’s counties in 2010. On May 27, 2011, the Legislature enacted a new law that essentially stripped the Registers of responsibility for their jobs and cut their salaries from $55,000 to $100. They each received a letter from the state saying that on the close of work on June 30, 3011, you will be “laid off from your capacity as the administrative authority of the County Probate Court.” Their new position has virtually no duties and they are not allowed access to their old office.
The two Registers filed suit claiming a breach of contract based upon the elective office that they had run for knowing the salary for which they would be paid and sought relief from the court. The Superior Court said that NH Supreme Court has never before dealt with the issue of constructive discharge when an employee’s job responsibilities are all but eliminated but the employee does not resign.
The trial court cited federal decisions around the country as precedent for concluding that the two Registers of Probate were constructively discharged in violation of law. A hearing on damages has been scheduled.
This is an emerging area of the law and the first case to so hold that if you have your title and a nominal salary, you still have been constructively discharged from your job. If you have been discharged from your job, please give us a call at 1-800-240-1988 to discuss or fill our on online Contact Form to see if you have a case.
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 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.
Getting fired is a traumatic event, particularly when you feel the reason for the firing is unjust. The wronged employee, understandably, often feels a temptation to “vent”–to tell his supervisor what he really thinks of him, or to send a company-wide e-mail railing against all the injustices the employee believes exist at the company. The employee may even write a scathing e-mail (or, worse yet, post an entry on “Facebook”) lambasting the people in power at the company and “exposing” their evil motives.
If you find yourself the victim of an unjust firing, please resist the temptation to “vent.” Thomas Jefferson once said, “When angry, count ten before you speak, if very angry, count a hundred.” Keep this maxim in mind. Any rantings against your employer that you leave in your wake, whether oral or written, can be used against you to paint you as a disgruntled employee. Don’t give your employer this ammunition to use against you.
If you feel your employer has wrongfully discharged you, hold off on firing any “parting shots” until you speak with an experienced employment lawyer.
Several attorneys filed suit against the State recently to try to obtain proper funding for our judicial system. It is broken and I could not sit idly by and let it be gutted by excessive legislative budget cuts so I joined in as counsel.
Each year 230,000 court cases are filed in New Hampshire.
Certain types of court cases have specific time frames in which to act and those are set by the legislature. For example, domestic violence cases and criminal cases require certain scheduling dates by law. Thus, work on such cases means other cases must be delayed if judge time is lacking due to vacancies. For instance, in 2009, there were 5,300 cases of domestic violence with hearings required between five or thirty days of filing, depending on the request.
Stalking cases were 1,470 in number, with the same time requirements. 9,600 landlord/tenant cases must be heard ten days from service of process. Involuntary emergency admissions to the N.H. Hospital were filed 1,700 times last year and they must be heard within three days of hospitalization.
Families are also heavily affected by the lack of a judge to help decide their disputes. 7,200 juvenile cases, 10,000 new divorce or family petitions and 7,000 closed cases reopened for parenting or lack of child support issues were heard last year alone.
Judges cannot decide cases without someone processing them, scheduling them, getting orders out, and otherwise processing paperwork. Each month thousands of orders have to go to the office of child support enforcement, various criminal law agencies, and to parties involved in marital and civil cases.
In the non-criminal area our State Constitution’s Bill of Rights (Part I, Article 14), says that everyone is entitled to a certain remedy for all injuries they may receive and that they are to obtain it “completely, and without any denial; promptly, and without delay.”
The purpose of that provision is to make civil remedies readily available and to guard against arbitrary denial of access to the courts. It is an equal protection clause because, whether you are suing someone or being sued, you want to have your case resolved as soon as possible.
Last year there were $3.1 million of cuts out of a judicial branch budget of about $65 million, with another $2.2 million hit in May. Concord District Court, which is a three-judge court, is now operating with one full-time judge. Due to the reduction in personnel a form letter went out this summer canceling all civil trials.
Small claims cases were all cancelled in the Manchester District Court this summer for an indefinite period.
On July 22, Merrimack County Superior Court began closing to the public daily from 1:00 p.m. to 4:00 p.m. As of June 30, it had nearly 500 case files with pieces of mail that had yet to be docketed in the court record, with some documents dating back to March. Another 150 trial and hearing notices had not been sent out and more than 350 files contained court orders that had not been issued.
HILLSBOROUGH SUPERIOR COURT CLERKS TO CLOSE OFFICES
TUESDAY AND THURSDAY AFTERNOONS
Staff shortages prompt move to focus on reduction of case backlog
CONCORD, October 1 – The clerk’s office in Nashua for Hillsborough County Superior Court North and Hillsborough County Superior Court South will close at 1 p.m. on Tuesday and Thursday beginning October 5 to allow uninterrupted time for processing cases and related materials.
Both clerk’s offices, which had been closed from 8 a.m. to 9 a.m., will reopen at 8 a.m. daily, beginning Oct. 5 with implementation of the new Tuesday/Thursday afternoon closings.
After 1 p.m. on Tuesday and Thursday, no telephone or counter service will be available to lawyers, litigants or the public in the clerk’s office during those hours; the automated telephone system will be monitored so that emergency requests are addressed promptly. A “drop box” will be set up inside the courthouse at 30 Spring Street in Nashua for filing documents during the hours when the clerk’s office is closed.
As of today, the Merrimack County Superior Court, which had been closed down since last August on weekday afternoons to work on reducing the case backlog, will be open for a full day on Fridays. The clerk’s office in Concord remains closed to lawyers, litigants and the public Monday through Thursday from 1 p.m. to 4 p.m. to allow for uninterrupted case processing.
Several other court locations statewide, faced with backlogs and staff shortages, also have limited public operating hours to allow uninterrupted time for employees to process cases.
Superior Court Chief Justice Robert J. Lynn said the schedule will be reviewed every 30 days to determine when the clerk’s office can return to routine office hours. Reductions in the court system budget have required administrators to maintain 71 full-time non-judicial vacancies, which means court locations have fewer employees on staff to carry out day to day clerical responsibilities.
These cutbacks affect all citizens who seek justice. I will do all I can to fight for fair funding. If you have a delay horror story, email me at firstname.lastname@example.org
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.
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.”