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.

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.

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.

Consumers should be alert to so-called “price-matching guaranty” scams.  There a few variations of these scams, but they all share the common theme of a consumer products merchant claiming that they will “match the price” of a competitor selling the same product.  The purpose of these claims is to lead you to believe that no one can offer a better deal than those offered by the “price-matching” seller.  However, while the claim is that the seller will match a lower price if you can find it, the reality is, it will often refuse to do so, even with an identical product.  How do they justify this kind of false and misleading advertising?

In one version of the price-matching scam, the merchant claims it will match the price of a competitor for any given product.  However, when you find the same product being sold by a competitor for a lower price, and ask the “price-matching” seller to match the lower price, it will refuse to do so, on the basis that the competitor’s product is “not an exact match.”  Even though the product really is identical, the scamming seller will create a “non-exact match” by “bundling” the same product with some kind of “free” cheap trinket.  As an example, imagine you find a TV for sale at “price-matching” seller for $1000.  It comes with a “free” bottle of screen cleaner (really worth $4.99).  You find the same exact television for sale at competitor’s store for $900.  When you tell the “price-matching” merchant to match the price in accordance with its guarantee, they will refuse, simply because the competitor’s store isn’t giving away the $4.99 bottle of screen cleaner.  Of course, the $4.99 bottle of screen cleaner does not equal the $100 price difference between the “price-matching” scam artist’s television and the competitor’s, but the artificial “inexact” match gives the unscrupulous seller a way out of keeping its promise to match the competitor’s price.

A more sophisticated variation of the price-matching scam involves the “price-matching” seller having items made up by the manufacturer with a specific model number code that is unique to versions of that product sold by the scam artist’s store.  Using the television example again, the seller would offer a television that is exactly the same as a television sold by its competitors in every respect except the model number code, which is often different by only one character.  So for example, the “price-matching” electronics store would sell a television with model number 1100-A-21-A for $1000.  Its competitor would sell the same exact television, but with model number 1100-A-21-B, for $900.  When you inform the “price-matching” seller of the better deal being offered by the competitor, and demand that it match the price, it will again refuse to do so, telling you that the television is not an “exact match” because the model code stamped on it is different by one character, even though the product is exactly the same in every meaningful way.

This type of false and deceptive advertising and sales practices are probable violations of the New Hampshire Consumer Protection Act, which has powerful remedies for consumers who are victimized by such unscrupulous acts. If you aware of such a scam, or have had the misfortune of falling victim to one, you should consider contacting a consumer protection attorney.  Douglas, Leonard & Garvey, P.C. has extensive experience litigating consumer protection-related issues, and would be happy to consult with you if you have information about a scam like the one described above.

Electronic surveillance has become a nearly unavoidable fact of life.  When you consider an average person’s average day, it is likely that he or she has their activities recorded electronically several times per hour between the time they leave for work and the time they return home.  Chances are, their activities are subjected to being recorded even after they are in the “privacy” of their own dwelling.

When you stopped at the gas station to fuel your car, or a fast food drive-through to pick a breakfast on the go, there is a record kept.  You are likely video-taped, and if you use a credit card, there will a receipt with an electronic record.  It is not uncommon to hear on the evening news that a crook was tracked down because he used his credit card at a gas station or ATM card at a bank.

When you log onto your computer at work, it is likely that your employer has the ability to review your activities.  If you think you snuck in that game of solitaire without anyone knowing, you are probably wrong!  Your E-mail also leaves an electronic record, both on your machine, and of course with whoever you send it to.  E-mails have become a staple of employment and divorce cases, and factor heavily in many other forms of civil litigation as well.

Many people seem to forget that E-mails (as well as text messages and other forms of electronic communication), are preserved for posterity, and simply type out their stream of consciousness.  Doing so is a terrible mistake, and it is not uncommon for such mistakes to decide the outcome of a civil case.

It is just as common for people to forget that their physical actions are often video-recorded when in public, at the workplace, or even in certain private situations.  Keep an eye on Douglas, Leonard & Garvey’s website for cases involving video surveillance right here in New Hampshire.  They are sure to drive home the point of how important and damning video evidence can be.  Douglas, Leonard & Garvey has also been involved in cases where phone recordings (usually in the form of 911 calls, but also voice mail messages) have played decisive roles in the outcome of litigation.

During your commute to and from work, your comings and goings are recorded by electronic toll devices like EZ-Pass, and even your car keeps a record of how you drive, which can be downloaded if you get in an accident.  Even your home computer keeps a record of your web searches and other activities, which can be subjected to a forensic search if necessary in a civil or criminal case.

The moral of the story is to ask yourself this question on a regular basis:  “How would my next decision look, sound, or read on a video, audio, or other electronic record?”  If the answer is “not good,” then reconsider doing it, because it is just as likely as not that whatever it is you are doing, there will be an electronic record.