nhlawoffice.com

EMPLOYER CONFIDENTIALITY CLAUSES DON’T ALWAYS APPLY

Administrator — Thu, 19 Apr 2012 14:26:30 +0000

A temporary employment agency that supplied workers to companies in the telecommunications and natural gas industries had the following clause in its temporary employment contracts:

Employee… understands that the terms of this employment, including compensation, are confidential… Disclosure of these terms to other parties may constitute grounds for dismissal.

After an employee was placed with a company named El Paso his paychecks and expense reimbursements were not timely made. He complained not to his employer, but to the person he was contracted to, El Paso, and then El Paso notified the temp agency. That agency then terminated the employee.

The employee filed an unfair labor practice charge and the First Circuit Court of Appeals upheld the NLRB finding that the confidentiality agreement was too broad. An employee is entitled to certain rights such as engaging in activities concerning their pay and benefits and the confidentiality policy would chill those employee rights if it is not enforceable against the employee under these circumstances.

If you have a situation where you think your rights are being violated, please contact us as we represent employees in private and public employment. Call us at 1-800-240-1988 or fill out our Contact Form online.

WHAT ARE MY RIGHTS AS A PREGNANT EMPLOYEE?

Administrator — Mon, 09 Apr 2012 20:15:10 +0000

A woman tells her employer that she is pregnant and that her doctor has told her that she should not work, or that her work duties should be restricted, due to her pregnancy or due to associated medical conditions. Her employer tells her that it will not grant her leave, or that it will not accommodate her restrictions, due to company policy.

Is this legal? Not under New Hampshire law.

New Hampshire law extends greater protections to pregnant employees than federal law. Under federal law, employers must only give the same protections and benefits to their employees as they do to other employees afflicted with temporary disabilities. New Hampshire law goes further. New Hampshire employers must give pregnant employees leave, and must keep their jobs open for them, for so long as they experience medical conditions associated with their pregnancies that render them unable to work or that restrict their ability to perform certain job duties. The employer can only avoid liability for breach of this duty if it can prove “business necessity” to replace the pregnant employee.

An employer who violates a pregnant woman’s rights under New Hampshire law can face liability for lost wages, emotional distress, humiliation and inconvenience, pain and suffering, loss of enjoyment of life, and attorney’s fees.

If your employer has fired you due to your inability to perform some or all of your job duties due to a pregnancy-related medical condition, you should consult a New Hampshire attorney experienced in employment discrimination law. We only represent employees in employment cases so please contact us to help you. Call us at 1-800-240-1988 or fill out our online Contact Form.

WORKERS’ COMPENSATION DISABILITY BENEFITS PAID FOREVER?

Administrator — Mon, 09 Apr 2012 20:01:34 +0000

For whatever reason, many injured workers harbor the mistaken belief that, once they begin receiving workers’ compensation disability benefits, they will receive them forever. This is not the case. There are several ways disability benefits may terminate. First, there is a 5-year cap on temporary partial disability benefits–the type of benefits that injured employees may receive if they have a light duty work capacity or if they are working a job that pays less than what they earned at the job in which they were injured. No such cap exists on temporary total disability benefits–the type of benefits injured employees receive if their injury renders them completely unable to work any job for which they are suited. Temporary total benefits may be suspended if a carrier schedules an employee for a medical examination and the employee fails to attend it. Such benefits may also be terminated through an RSA 281-A:48 petition filed by the carrier with the Department of Labor. When a carrier files such a petition, the Department of Labor holds a hearing attended by the employee and a carrier representative, usually an attorney. The carrier bears the burden to prove at the hearing that the employee has work capacity and that benefits should be discontinued. Benefits stop immediately if the Department finds that the carrier has met this burden.

Due to the risk of benefits being terminated, it makes sense under appropriate circumstances for employees to explore lump sum settling their claims. Disability benefits stop when the Department approves a lump sum settlement, but the employee can walk away with a sum of money to help to compensate for their injury and allow them to move on with life.

We can assist in negotiating a lump sum settlement and assessing your workers’ compensation rights. Benjamin King at Douglas, Leonard & Garvey, P.C. is experienced in representing employees in workers’ compensation matters. Call us at 1-800-240-1988 or fill out our online Contact form.

CAN AN EMPLOYER USE FACEBOOK TO HIRE OR FIRE?

Administrator — Mon, 02 Apr 2012 18:38:34 +0000

Has your employer or a prospective employer asked for your Facebook password? Insurance companies and defense lawyers mine social media sites such as Facebook to find information and now employers are using these sites in making hiring and firing decisions.

Two recent events may change an employer’s ability to ask for your password to access your Facebook account. First, because Congress is alarmed over stories of employees being fired for Facebook postings, it is considering a new law to limit an employer’s ability to request your password. (READ MORE). Now, in response to recent news stories, Facebook is changing its policy to protect passwords for snooping employers. The new policy makes it a violation of Facebook’s terms of service to share or ask for passwords. (READ MORE)

These efforts are an attempt to prevent employers from accessing and then misusing such information because an employer can learn information about an employee or prospective employee (age, pregnancy or other information) that they can use (improperly) in making employment decisions. However, please keep in mind any personal information you post may be difficult to keep private.

Please contact Douglas, Leonard & Garvey P.C. for any employment law issue you may have. You can reach us at 1-800-240-1988 or complete our online Contact Form.

WHAT CAN YOUR EMPLOYER DEDUCT FROM YOUR PAY?

Administrator — Wed, 07 Mar 2012 21:24:14 +0000

Under state law, (RSA 275:48) an employer’s ability to lawfully withhold a portion of an employee’s wages is limited to specific circumstances. For example, an employer cannot even withhold for an accidental overpayment of wages unless the employee voluntarily agrees and the agreement is in writing. The statute sets forth the terms and limitations of such an agreement.

In a recent case before the N.H. Department of Labor, an employee had $4,763 deducted from his final two paychecks for prepaid bonuses that the company claimed he was not eligible to receive. Because there was no written agreement regarding the withholding of those wages, the DOL determined that the deductions from the employee’s pay was illegal.

If your employer is not properly paying you or if your wages are being tampered with, please call us to see if you have a case because we represent employees, not employers. Call 1-800-240-1988 or fill out our Contact Form online.

EMPLOYMENT DISCRIMINATION COMPLAINTS AT ALL TIME HIGH

Administrator — Tue, 07 Feb 2012 20:39:37 +0000

Employment discrimination complaints against private sector employers reached an all-time high in the most recent fiscal year, federal regulators said this week.

The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that handles these claims before they go to Court, said it received a record 99,947 charges of employment discrimination and obtained $455.6 million in relief through its administrative program and litigation in fiscal year 2011. The commission said it resolved more charges than it took in with 112,499 resolutions (7,500 more resolutions than FY 2010—an increase of 7 percent)—leaving 78,136 pending charges, a 10 percent decrease in its inventory, the first year the agency has seen a reduction since 2002. A similar increase in these types of claims has also been seen by the New Hampshire Commission for Human Rights, the New Hampshire Agency that handles most discrimination claims in New Hampshire before they go to Court, although actual numbers are not yet available.

The EEOC records show that:

- In both the private and federal sectors, 5.4 million individuals benefited from changes in employment policies or practices in their workplace during the past fiscal year.

- The EEOC obtained a record $455.6 million in relief for private sector, state, and local employees and applicants, a more than $51 million increase from the past fiscal year and continuing the upward trend of the past three fiscal years.

- The mediation program reached record levels, both in the number of resolutions – 9,831 – which is 5 percent more than in FY 2010 (9,362), and benefits — $170,053,021– $28 million more than FY 2010.

- The EEOC filed 300 lawsuits and its litigation efforts resulted in $91 million of relief, representing the third year in a row that the relief obtained was greater than in the preceding year. Twenty-three of the lawsuits filed involved systemic allegations involving large numbers of people and an additional 67 had multiple victims (less than 20).

The total number of charges received was up slightly from last fiscal year’s record total. Once again, charges alleging retaliation under all the statutes the EEOC enforces were the most numerous at 37,334 charges received, or 37.4 percent of all charges, closely followed by charges involving claims of race discrimination at 35,395 charges or 35.4 percent. While the numbers of charges with race and sex discrimination allegations declined from the previous year, charges with the two other most frequently-cited allegations increased:

- Disability discrimination–25,742

- Age discrimination—23,465

The agency’s enforcement of Americans with Disabilities Act (ADA) produced the highest increase in monetary relief among all of the statutes: the administrative relief obtained for disability discrimination charges increased by almost 35.9 percent to $103.4 million compared to $76.1 million in the previous fiscal year. Back impairments were the most frequently cited impairment under the ADA, followed by other orthopedic impairments, depression, anxiety disorder and diabetes.

If you think you have been discriminated against, please call our office at 1-800-240-1988 or fill out on online Contact Form.

EMPLOYEE HANDBOOK CHANGES FOR FRINGE BENEFITS MUST BE SIGNED

Administrator — Thu, 08 Dec 2011 17:53:25 +0000

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.

FEDERAL COURT FINDS VIDEO AND AUDIO RECORDING OF POLICE OFFICERS PROTECTED BY FIRST AMENDMENT

Administrator — Thu, 08 Dec 2011 16:35:42 +0000

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.

CARRY ENOUGH MEDICAL PAYMENTS COVERAGE AND REMEMBER TO USE IT!

Administrator — Sun, 06 Nov 2011 15:01:07 +0000

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.

LAW ENTITLES RETURNING SOLDIERS TO REINSTATEMENT

Administrator — Thu, 03 Nov 2011 18:36:50 +0000

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.

DOUGLAS LEONARD & GARVEY WINS EMPLOYEE FREE SPEECH LAWSUIT

Administrator — Tue, 01 Nov 2011 19:30:44 +0000

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.

Be Careful About Social Media & Your Employer

Administrator — Thu, 01 Sep 2011 10:50:47 +0000

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.

WORKING FOR TIPS

Administrator — Wed, 31 Aug 2011 14:40:52 +0000

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.

RETURNING TO WORK AT THE END OF THE DAY

Administrator — Wed, 17 Aug 2011 16:41:04 +0000

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.

“MEDICAL MALPRACTICE REFORM” HARMS THE VICTIM

Administrator — Mon, 25 Jul 2011 20:47:33 +0000

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.

WORKERS’ COMPENSATION – YOU NEED A MEDICAL FORM

Administrator — Wed, 20 Jul 2011 19:17:49 +0000

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.

GUESS WHO IS LOOKING AT SOCIAL NETWORKING SITES — EMPLOYERS!

Administrator — Thu, 07 Jul 2011 10:45:25 +0000

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.

DEFENSE MEDICAL EXAMINATION IS NOT AN INDEPENDENT MEDICAL EXAMINATION

Administrator — Fri, 24 Jun 2011 19:34:43 +0000

Filing a personal injury or workers’ compensation claim can be complicated and there are many different steps involved before the case is resolved. One of these steps may involve an examiner by a medical examiner, which is a doctor hired by the defendant’s insurance company. This is sometimes referred to as an “independent” medical examination but that is not accurate. Instead, this examination should be called a Defense Medical Examination.

It’s important to keep in mind that the medical examiner is NOT your doctor and they were hired to assist the defense in disproving your claim or minimizing the extent of your injuries. Given this fact, you should be prepared by your lawyer ahead of time and know what to expect before your appointment so that you don’t do anything that might hurt your case.

Here are a few suggestions:

Be concise when answering questions. When asked about your pain or symptoms, state them clearly and concisely. Rambling on may result in your saying the wrong thing, or mentioning something that may hurt your case in the long run. Keep it to the point and you will be fine.

Be polite and cooperative. There is no need to be hostile with the medical examiner, even though you know they are not on your side. Be as pleasant as you can and do as he or she asks. For example, if the doctor requests that you bend or twist, do so to the best of your ability but within your limits.

Avoid exaggeration. The medical examiner is looking for people who get carried away when describing their pain. Going overboard may make you appear to be dishonest or exaggerating will only hurt your case.

Know your condition and don’t minimize it. Although it’s good to be concise in your answers, you should also be sure not to leave out anything important when it involves your pain and symptoms. Be specific and accurate in your list of limitations and complaints so that everything important is properly documented.

Understand the details of your claim. The medical examiner may ask you specific questions about your case, like the date of the incident, the details of what happened, or the names of doctors you have consulted with. Know this information ahead of time so that you’re prepared and confident.

Try not to be emotional. Certainly the experience of being injured can be emotional, and dealing with the pain and suffering is upsetting. But try to stay as focused as possible when meeting with the medical examiner. Leaving the emotion out of it can make the visit go much more quickly and smoothly.

Be honest. If a medical attorney has agreed that you are, in fact, a victim, there should be no reason to lie or stretch the truth when visiting with an independent medical examiner. Doing so will only serve to hurt your case so remember to keep it honest.

These are just a few suggestions to help prepare you for this part of your case. An experienced personal injury or workers’ compensation attorney from Douglas, Leonard & Garvey, will sit down with you to discuss your concerns and answer any questions you may have before you go to the appointment. Being prepared and knowing what to expect can make a difference between a winning case or a loss. Call our office at 1-800-240-1988 or fill out our contact form online.

ITS BICYCLE SEASON IN NEW HAMPSHIRE – BE CAREFUL

Administrator — Sun, 22 May 2011 11:21:48 +0000

With the arrival of May and warm and sunny weather (well, miserable rainy weather) its bicycle season. In addition to kids riding their bikes around town, New Hampshire is home to many bicycle enthusiasts and with record high gas prices, bicycle commuters. Although, some towns have actual bicycle travel lanes in some roads, most do not. As bicycle riders are required to ride in the roadway, and not sidewalks, accidents with car and trucks unfortunately happen.

If you or a loved one is involved in a bicycle accident, you may be wondering if you need an attorney. Collisions on a bicycle can be very serious, resulting in severe injuries. If your bicycle accident involved a motor vehicle, your injuries could be life-altering or permanent. Determining the need for a personal injury attorney following a bicycle accident depends on the specific circumstances of the accident. If you have been injured and your bike has been damaged, you may be eligible to receive compensation for medical bills, property damage and pain and suffering.

Some questions that you might consider include:

• Was there negligence or inattention on behalf of another person?

• Was I following the rules of the road?

• Did I take chances that I should not have?

• Was the road or sidewalk in poor condition?

• Did the weather contribute to the accident?

• Does the driver of the car/truck have enough insurance coverage?

• What do I do to protect my rights and get the compensation I deserve?

Assigning blame can be difficult, but if the driver of the car or truck is at fault, you have legal rights and will be entitled to full and fair compensation for your injuries.

The personal injury team at Douglas, Leonard & Garvey have experience in all types of accident cases, including bicycle accidents, and can help you in the event that you need to file a New Hampshire personal injury claim, and they can inform you of all your other legal options. You can contact us by calling our toll free number 800-240-1988 or filling out the information form on our contact form.

EMPLOYEES HAVE THE RIGHT TO ON-TIME WAGES AND COMMISSIONS DUE

Administrator — Sat, 21 May 2011 16:45:26 +0000

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.

DON’T FORGET YOUR FENDER BENDER- FIGHTS FOR YOUR RIGHTS

Administrator — Fri, 20 May 2011 11:16:59 +0000

It is common knowledge that a driver or passenger of a vehicle that is rear-ended can sustain injuries, such as whiplash, neck pain, or back pain. However the damage to the vehicle may be slight especially depending on what types of vehicles were involved in the crash. Any low impact crash can yield serious injuries without substantial damage to the car. However, the insurance companies do not want you to know that and unless you have been in a low impact crash yourself, you too may think that if the car wasn’t badly damaged, how could its passengers and driver? Simple. You wouldn’t want to put your hand or your head in between two cars in a low impact crash. Would you? The cars may not sustain much damage but your hand or head certainly would.

CNN has done a report on such low impact claims. Their article reports that insurance companies have a strategy to deny, delay and defend. Their objective is to make it so expensive to recover from an accident that lawyers will refuse to take low impact cases.

It is noteworthy that in the age of “Tort Reform,” none of the money saving strategies of the insurance companies have impacted premiums. It would be reasonable to think that if the insurance companies are not paying out on claims then their insureds would not have to pay as much in premiums, but that is not the case. The insurance companies want you to believe that they pass the savings along to you, while they pocket the extra money.

Interestingly enough, you have probably seen a bunch of new auto insurance ads on cable. These ads promote one of two things, either: a) you will get the cheapest deal – and they fail to mention that you get what you pay for and b) their company will take care of you. They even have testimonials from people about how their company helped them. The average person will fail to notice that most of these testimonials are about car repairs, car rentals, and property damage claims. If you have been injured in an accident, and need to make a bodily injury claim and don’t have a good attorney on your side, GOOD LUCK! If you have been injured in any kind of automobile accident, contact Douglas, Leonard & Garvey for a free initial consultation. We will fight for your rights. Call 1-800-240-2988 or fill out on online contact form.

CONSIDERING A DIVORCE?

Administrator — Wed, 18 May 2011 18:58:39 +0000

According to the Surgeon General of the United States, going through divorce, especially with children of any age, is one of the most stressful things an adult can experience. Approximately one-half of all marriages now end in divorce, and about 30 to 40 percent of those undergoing divorce report a significant increase in symptoms of depression and anxiety. Sometimes, however, divorce is necessary for a variety of reasons. If you are seeking a divorce, or one is thrust upon you, trying to keep a cool head and avoiding common mistakes can payoff in the long run for you, your children and whomever you may have a relationship with in the future. Some common mistakes include: (1) Taking action that affects your rights before getting legal advice; (2) Making financial and legal decisions while under pressure or upset about the family break-up; (3) Getting advice on your divorce from family and friends; and (4) Using the court process to punish your spouse.

This first thing you need to do during this time of great stress and anxiety is to learn what the sometimes frustrating process is that you are about travel. Before you do anything abrupt, consult with an attorney to find out how the process works, and what expenses you can expect to occur over the next year to 18 months. What you do or don’t do prior to filing for divorce can affect the entire process and beyond. Avoid getting advice from family and friends. They are not in your shoes and every family situation is different. Avoid, avoid, avoid the temptation to sign anything and give it all away to get it over with. You are going to live with that decision for the rest of your life and made under severe stress and anxiety, it is almost always the wrong decision. Try to avoid the temptation to use the court system to vent anger, hurt or get back at your soon to be ex-spouse. The system is not set up to provide healing. It is set up to do what is best for the children and divide marital money, property and debt – nothing more. The best advice for what you are facing is to consult a good attorney, and then decide whether you need a lawyer to help fight for what is best for you and children, or settle the case early so everyone can move on and rebuild.

At Douglas, Leonard & Garvey, we provide sound and cost effective representation in divorce and family law matters. We are available for an initial consultation which you can set up over the phone or by filing out our contact form on our webpage.

HOW TO GET MEDICAL BILLS PAID IN AUTO ACCIDENTS – PART II

Administrator — Sat, 07 May 2011 11:58:26 +0000

When you are injured in a car, boat, motorcycle or other accident, the first thing that usually happens is you are taken to an emergency room and if not unconscious or gravely hurt, the hospital will check you in and take your insurance information. If someone else is at fault, it is important to identify for the hospital staff who else is responsible, and that you have medical payments insurance or “med pay” with your own car insurance company. This is important so that the bills can be sent to your car insurance carrier before your medical insurance company processes and pays the bills.

Why? When your attorney settles your case against the person at fault for the accident, under New Hampshire law, you have to pay back your medical insurance carrier the money that it paid the ambulance hospital, doctors, and physical therapy staff that treated you for your injury. This is called a medical lien. However, “med pay” will pay those bills up to your “med pay” policy limit if you submit the bills to your own car insurance company first. And the real benefit is that under New Hampshire law, when you settle your case, you can still claim as damages those bills paid by “med pay” and you do not have to pay “med pay” back. This can make a real difference in the amount of money you can put in your pocket when you settle your case.

If you do not remember to tell the hospital, make sure to tell your lawyer right away that you have “med pay,” and who your car insurance company is so they can make sure the bills get processed correctly and you can get the most money possible out of your settlement. Bring in the policy for your lawyer to review your “med pay” limits. At Douglas, Leonard & Garvey we know the ins and outs of personal injury law and will ask you the important questions up front and make sure all of the details are handled for you to get you all the compensation you deserve. For a free consultation about any personal injury you have suffered at no fault of your own, call the attorneys at Douglas, Leonard & Garvey or fill out our contact form.

NO TIME LIMIT FOR PURSUING PERMANENT IMPAIRMENT COMPENSATION

Administrator — Thu, 05 May 2011 11:14:30 +0000

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.

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.

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.

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).

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.

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.

HOW TO GET MEDICAL BILLS PAID IN AUTO ACCIDENTS – PART I

Administrator — Wed, 04 May 2011 14:59:56 +0000

Medical payments coverage (also known as Med Pay) is insurance coverage on your OWN insurance policy that pays for reasonable and necessary medical expenses resulting from an auto accident. If you are in an auto accident, even if the accident is entirely your fault, med-pay coverage still applies. The amount of coverage can vary from $1,000 to $10,000 typically. The cost for this coverage is inexpensive and well worth it. Make sure you ask your insurance agent or insurance company about the amount of med pay coverage on your policy.

Another great benefit of med pay is that it also covers for the medical bills of passengers in your vehicle at the time of the accident, regardless of fault. If you have passengers in your vehicle at the time of an accident, then you and your passengers all have med-pay coverage up to your limits. So, for example, if you have $10,000.00 in med-pay coverage, you and every one of your passengers have this limit available to them for an accident. Med-pay coverage is also not vehicle-specific, which means that the med-pay coverage “follows you” to provide coverage in any accident involving an automobile. You should always attempt to maximize the use of med-pay coverage that may be available for injuries that result from a car accident.

Med-pay coverage is an example of a benefit that may be available that many people do not know about. At Douglas, Leonard & Garvey, we have experienced accident attorneys who understand the details of insurance policies. If you have recently been injured in a car accident, please give us a call or use our contact form to have us help you with your claim.

GENDER DISCRIMINATION – SHOULD I COPY AND TAKE DOCUMENTATION?

Administrator — Tue, 03 May 2011 14:35:10 +0000

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.

DON’T LET THE CARRIER GET AWAY WITH DENYING MEDICAL BILLS RELATING TO TREATMENT YOU RECEIVED FOR YOUR WORK INJURY!

Administrator — Sun, 01 May 2011 12:38:24 +0000

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 A WITNESS IN AN EMPLOYMENT CASE, ARE YOU PROTECTED FROM RETALIATION?

Administrator — Sat, 30 Apr 2011 12:47:54 +0000

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.

MOTORCYCLE RIDERS – DRESS FOR THE CRASH, NOT THE RIDE

Administrator — Tue, 26 Apr 2011 23:13:33 +0000

Although it may still be difficult to tell, with snow falling on Easter weekend, Spring is here, and with it motorcycle season. It hardly needs to be said that riding a motorcycle carries higher risks for the rider and any passengers than driving in a car. However, a story like the recent one from Fremont, in which a six-year-old passenger on a motorcycle was gravely injured while riding with her grandfather, after they were struck by a drunk driver, really makes one think.

There is a saying amongst experienced motorcyclists, and especially those who have experience with the motorsport side of riding. The saying is “dress for the crash, not the ride.” Essentially, the moral of the saying is that you will crash eventually, whether through your own mistake, or one made by another motorist, like the case in Fremont. When that day comes, you will want to have the maximum amount of protection that you can get, because you won’t have a seatbelt, airbags, crumple zones or a ring of steel around you to keep you from making high speed personal contact with that tree, guardrail, sign post, or oncoming vehicle.

The most obvious and essential bit of equipment you use to protect yourself is a quality, SNELL-approved helmet. We recommend the full face variety. Not only will it offer additional protection for your pretty features, but it will offer protection from bugs and other flying debris. Most people have had the misfortune of having a car windshield cracked by a stone or something falling off another car. Imagine that instead of being stopped by a tempered glass windscreen, that stone or debris is stopped by your face. The initial injury would likely be bad enough, but it could daze you or blind you and put you at risk for a really serious accident.

Beyond a helmet, a good set of riding leathers is essential. The leather acts like armor to take the punishment of road rash instead of your skin. Leather also tends to allow you to slide over pavement or gravel, rather than gripping and causing you to tumble like skin or jeans. Tumbling after hitting the ground is often what leads to broken extremities. Some leathers have built in padding to absorb the shock of a crash, which are an obvious bonus safety feature. Good leather outfits can be had in a multitude of styles, from full-out racing style outfits to leather pants and jackets (a la Terminator). You should be able to find a safe outfit that matches your ride and your riding style.

Fingers and toes are especially vulnerable in a crash, being some of the smallest bones in your body. A good set of gloves with armored knuckles and joints is a good investment. Chances are you can find a set that matches your leather outfit. Good boots offer similar protection, as well as protection for your ankles and Achilles tendons. In many crashes involving other vehicles, the feet commonly take a lot of the impact, so good boots are worth the cost.

There are other, more specialized forms of protection available to the serious rider, including armored spine protectors and fully padded/armored outfits. They offer heightened levels of protection, albeit at the expense of some comfort. You may only get one chance in a crash, though, so they are worthy of consideration.

Also, before taking your bike out for its maiden voyage after a long winter nap, have it checked out thoroughly by an experienced mechanic. Mechanical maladies that would be merely annoying or result in a wait for the tow truck with a car can be downright deadly with a motorcycle. You need to be twice as sure that everything is in proper working order and ready for the road.

Finally, if you are unfortunate enough to be injured in a motorcycle accident due to someone else’s negligence, you will need good legal advice and representation in order to obtain a full recovery of the damages you have suffered. Douglas, Leonard & Garvey has years of experience successfully representing injured motorcycle riders. Stay safe, dress for the crash, and keep your head on swivel for negligent drivers, but if that is still not enough, we will be glad to help you in the event of a crash.

A FEW TIPS TO MAKE YOU LESS LIKELY TO FALL VICTIM TO ONLINE IDENTITY THEFT

Administrator — Tue, 05 Apr 2011 10:00:20 +0000

By now almost everyone has heard of “identity theft,” and probably knows someone who has been a victim. In today’s electronic world, where you communicate via the faceless world of e-mail and instant messaging, and make purchases electronically via the internet or even in face-to-face transactions when using a credit or debit card, it is relatively easy for technically savvy thieves to obtain your personal information and use it to commit frauds which can cost you significantly.

The first step to avoid becoming an easy victim is to simply be aware of how easy it is for thieves to obtain your information. Having an aware mindset will force you to think twice before entering your credit card or other personal info on a website you’ve never shopped on before, or responding to an e-mail from someone you haven’t previously communicated with. You need to be aware of some the tricks that ID thieves use, such as electronically “eves-dropping” on the signals between the credit card reader on the gas pump or store counter and your bank. The much-publicized case involving Hannaford Stores a few years ago came about through this method of ID theft.

Other tricks include e-mails that pose as popular on-line shopping stores, like Amazon, E-Bay, or even the U.S. Postal Service. These thieves will send out mass e-mails, sometimes even using personal information that can be gleaned from your e-mail address, in order to give them an air of legitimacy. They will claim that there is a problem with a pending or previous transaction, and ask you to enter personal information to confirm your identity so that they can work with you to resolve the problem. If you do so, they take your information and use it for their own nefarious purposes. Or, they use your reply to insert a virus on your computer, which can then be used to obtain even more personal information.

In addition to simply learning about the various schemes out there, a few easy tips can reduce the risks of electronic identity theft. Obviously, if you receive an unexpected e-mail, do not just hit the “reply” button reflexively. You should ask yourself if you actually have conducted business with the sender (or purported sender), and if you are not 100% sure, pick up the phone and call before communicating via e-mail.

If you are going to make an on-line purchase with a credit card, check the web address of the online store’s checkout process. It should have “https” at the beginning of the address. That address indicates a secure transaction, which will encrypt your personal information and keep it less vulnerable to unauthorized access. Also, refrain from the temptation to use debit cards whenever possible – even at point-of-sale locations like stores and gas pumps. Use a credit card instead. Most credit cards contracts have some form of fraud protection which allows you to dispute unauthorized charges. By contrast, a debit card transaction takes money right out of your bank account, and it can be very difficult to get it put back in.

Finally, stay on top of your finances. Carefully review your bank statements and credit card statements at least monthly, and get a regular credit score check done. If you have fallen victim to ID theft despite taking steps to stay safe in the first place, catching the damage before it becomes catastrophic is the next best chance to minimize the harm, even if it is a distant second place.

Douglas, Leonard & Garvey represents consumers in fraud matters and cases invoking the New Hampshire Consumer Protection Act. We have also sued negligent businesses who failed to take appropriate steps to safeguard consumers’ personal information. If you have been the victim of a consumer fraud scheme or identity theft scam, do not hesitate to contact us for assistance.

SPRING IS HERE – MOTORCYCLE WEATHER IS JUST AROUND THE CORNER- (PART 1)

Administrator — Sun, 27 Mar 2011 13:22:30 +0000

With the recent stretch of warm weather we have had and the melting piles of snow around New Hampshire, the legion of bikers who live and visit New Hampshire are tuning up their bikes for the first ride of the season. Even experienced bikers are wise to remember the first five thing bikers can do to stay safe on New Hampshire Roads.

1.) Assume Drivers Can’t See You: Ride assuming that you and your motorcycle are totally invisible to motorists. That means you must never assume that drivers can see you. The odds are, they can’t so believe it yourself and always have an “out” for dangerous traffic situations. Motorcycle Safety depends on you.

2.) Maintain Safe Spacing: Leave plenty of space in front and back and to the sides from all other vehicles. Be an island. Stay away from traffic as much as possible. This gives you more visibility and more time to react to situations.

3.) Anticipate Trouble: Anticipate trouble situations and know what to do when you see them. Analyze what vehicles are doing and try to predict the outcome. Then make sure you’re ready to avoid a bad traffic situation.

4.) Beware of Oncoming Left Turners: Beware of oncoming motorists turning left in front of you at intersections. This is one of the leading causes of death of motorcycle riders. Slow down before you enter an intersection. Stay visible. Don’t travel too close to cars in front of you. Position your bike so it can be seen by the left hand turner. Eye contact is not enough.

5.) Ride Your Own Ride: Don’t try to keep up with your friends who may be more experienced. Know your personal limits. Ride your own ride

.
The attorneys at Douglas, Leonard & Garvey have years of experience with these types of cases and a track record of getting results. Contact us at 800-240-1988 or online for a free consultation.

ALCOHOL IS A LEADING CAUSE OF BOATING ACCIDENTS – (PART II)

Administrator — Fri, 25 Mar 2011 10:26:36 +0000

Thousands of New Hampshire residents and visitors enjoy boating each season on our lakes and ponds. There are several leading causes of boating accidents, including alcohol.

New Hampshire law prohibits a person from operating a boat under the influence of intoxicants. Boating and excessive drinking is a serious crime and the laws are strictly enforced. The legal limit of the blood alcohol content (BAC) is 0.08% and if arrested for a higher BAC, harsh penalties may be imposed on the operator, based on the severity of the offense as well as the previous number of similar convictions. If convicted of operation or attempted operation of a boat while intoxicated, you may not operate a boat on New Hampshire waters for a period of one year from the date of a conviction. If you get convicted of “drunk boating” while transporting a person under the age of 16, you cannot drive a boat on New Hampshire waters again until you complete a 7-day program at the state operated multiple DWI offender program or an equivalent 7-day residential intervention program. Any conviction for driving a boat while intoxicated becomes part of your DMV record and your license to drive a motor vehicle is suspended or revoked as if you had been driving a car.

You need to remember that Marine Patrol can go onto your boat at any time for a safety check and regularly does so. They don’t need probable cause to believe you have committed a crime. If you do get charged with boating under the influence, it is critically important to find an experienced attorney because there are serious consequences – both your right to operate a boat and operate a motor vehicle are at stake.

Contact us at Douglas, Leonard & Garvey because we have experience with operating boats and defending alcohol-related charges and are available to assist you.

“BOATING FEVER” – BE CAREFUL (PART I)

Administrator — Tue, 22 Mar 2011 15:07:30 +0000

New Hampshire waters offer some of the best boating opportunities in the region for power boating, water skiing, fishing and sailing. And it’s almost “Ice-Out” on the Big Lake. “Ice-Out” on Lake Winnipesaukee occurs when the ice that has covered the Lake melts enough to allow the M/S Mount Washington cruise ship to navigate between Alton Bay, Center Harbor, Weirs Beach, Meredith and Wolfeboro. Ice-Out is greatly anticipated by residents and visitors since it is the traditional start of the spring season and many Islanders regain water access to their cottages. The date has been observed and recorded for over 120 years. The setting of the exact date and time is non-scientific and is now determined by an observer in a small plane from Emerson Aviation that flies over the lake several times a day. When the pilot makes the Ice-Out call it is considered official. While most years Ice Out does not occur until Mid to late April, last year, Ice Out arrived on March 24th.

So, this means boating season is right around the corner. Boating on the beautiful lakes and ponds in New Hampshire on a bright summer day with family and friends is about as good as it gets. In order to protect yourself and your loved ones you should: (1) register your boat; (2) obtain your boater education card which you must have to operate a boat with an engine bigger than 25 hp; (3) make sure you always have a good marine map and follow the boating rules; and (4) obtain marine insurance to cover injury to you and others, as well as damage to your boat.

Unfortunately, boating accidents can occur due to the negligence or recklessness of another boater. The leading causes of boating accidents are:

• inattention

• inexperience

• speeding

• alcohol

We hope you have a great boating season but if you have been injured through the fault of someone else’s negligence, you need to contact an experienced personal injury firm like Douglas, Leonard & Garvey, P.C. to set up a free consultation. Please call 1-800-240-1988 or contact us online.

IS A FIANCÉ OF AN EMPLOYEE A PERSON WHO CAN’T BE RETALIATED AGAINST AT WORK?

Administrator — Wed, 16 Mar 2011 11:54:04 +0000

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.

DOES AN EMPLOYEE WAIVE A PRIVILEGE TO CORRESPOND WITH THEIR LAWYER IF THEY USE THE COMPANY E-MAIL?

Administrator — Tue, 15 Mar 2011 12:50:53 +0000

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.

CAN A WIFE SUE HER HUSBAND’S ATTORNEY WHO REPRESENTED HIM IN A DIVORCE?

Administrator — Mon, 14 Mar 2011 10:23:46 +0000

The attorney who was sued represented the husband in a divorce where the question turned on the value of a multi-million dollar tile business owned by the husband. The wife later uncovered evidence that the husband’s business had a value of over $15,000,000, which was double the number that he claimed it was worth during the divorce. The wife sued her husband’s attorney claiming that he assisted in misrepresenting the value of the husband’s business. The Appellate Court concluded the attorney and husband were not protected for purposes of the wife’s fraud action.

The court ruled that the wife had standing to sue the attorney for his conduct on behalf of the husband in essentially defrauding the wife and the court. There has long been a crime and fraud exception to the attorney/client privilege and this case is an example of it.

If you feel you have been defrauded in a divorce case, contact an attorney who can handle that particular type of litigation. Douglas, Leonard & Garvey has been involved in several divorce cases where the issue of nondisclosure or inadequate disclosure of assets has been involved.

SPRING CAN BRING ITS OWN BRAND OF DRIVING HAZARDS

Administrator — Wed, 09 Mar 2011 10:41:30 +0000

Spring is in the air. After a winter like the one we’ve been suffering through this year, it feels like it can’t come soon enough. However, as one recent news story makes clear, spring can bring its own unique brand of weather-related havoc. The early spring roller coaster of snow and sleet followed by warm weather followed by more snow or sleet means that accumulated snow melts and re-freezes, and additional precipitation can make that virgin ice as slippery as greased Teflon.

Melting snow and ice also leads to the risk of an accident like the one detailed by WMUR at the following link: http://www.wmur.com/news/27065785/detail.html. In that accident, a trucking company had allowed a layer of snow on a trailer to melt and re-freeze, creating a coating of heavy ice on top of the trailer. A chuck of ice broke free and flew into the windshield of a car following on the highway, seriously injuring the driver. While this accident may seem like a freak occurrence, it is not at all uncommon to see drivers who do no more than clear a view slit in their windshields and then drive away. Smaller chunks of ice and snow that fly from these vehicles may not be enough to punch through a windshield like the one in the story link, but they can be enough to create a serious vision obstruction or distraction to following drivers. New Hampshire law requires you to clean the snow from your vehicle before driving it. Failing to do so can put you at serious risk of liability if snow or ice blowing off your vehicle causes an accident.

Melting snow during the day, followed by freezing temps at night is also the recipe for black ice. Black ice, often with a thin layer of moisture on top, is the slipperiest type of surface you are likely to drive or walk on. It is most likely to form on bridges, and at the edges of the road where fewer cars’ tires come into contact with the road. You should use extra caution when driving immediately after the temperature has dropped from above freezing to a few degrees below freezing, and take special care when crossing bridges or coming near to the edges of the pavement under those conditions.

Just because spring is almost here does not mean that the weather cannot ruin your day with a winter weather-style hazard. Until the temps stay well above freezing, keep your snow tires on, your vehicles clean of snow and ice, and be extra careful driving at night.

NEW HAMPSHIRE SNOWMOBILERS SUFFER SERIOUS INJURIES

Administrator — Thu, 03 Mar 2011 11:45:58 +0000

This year’s winter conditions have meant many people have been able to participate in a variety of winter activities, including snowmobiling. Snowmobiling is a lot of fun and with it comes a certain level of responsibility. This means abiding by certain rules to avoid injuring yourself or others. So far this year there have been many reports of snowmobilers suffering serious personal injuries, including fatalities, from snowmobile accidents.

Guess what is the most common cause of snowmobile accidents? According to the New Hampshire Fish & Game, riders need to stay on designated trails and keep their speeds down. In two recent accidents, witnesses claim the drivers were operating at a speed greater than necessary to safely operate the snowmobiles. One driver was killed while the other driver was left unconscious.

These snowmobile accidents remind us of the serious consequences from personal injuries. Even less serious accidents than a fatality can have a long-term impact on accident victims and their families. So, remember, while you are enjoying yourself in whatever winter activity you are doing, please be safe and responsible.

If you are the victim of an accident or personal injury, please contact us if you need an experienced New Hampshire personal injury lawyer.

THE RISKS OF LITIGATION OR DISCLOSING INFORMATION TO AN EMPLOYER ARE NOT THE ONLY RISK PRESENTED BY CARELESS SOCIAL NETWORKING

Administrator — Wed, 02 Mar 2011 11:03:07 +0000

In an early posting, we covered the potential dangers of posting personal information on social networking sites like Facebook, Myspace, and Twitter. That earlier blog primarily concerned the risks presented by an employer or prospective employer reading your postings and leading to the loss of a job, or the dangers of someone on the other side of a lawsuit finding information on your Facebook page that might be used against you in your case. While these are still important reasons to be cautious in what you post online, there are other, equally significant reasons to use your best judgment when communicating online, even if you are not involved in a lawsuit, and are absolutely sure that your employer has no interest in your Facebook or Myspace page.

Online bullying and stalking is one reason to be careful who you communicate with online, and how much information you share. An online stalking case from Oklahoma recently hit the news. A link to the story can be found here: http://www.newson6.com/Global/story.asp?S=14078889. The case involved a woman named Elexis Hennigh, who made the mistake of “friending” a man she barely knew, by the name of Travis Taylor. Mr. Taylor allegedly became obsessed with Ms. Hennigh, and began sending her melodramatic messages asking for a date, and refusing to take “no” for an answer. Ms. Hennigh documented her communications with Mr. Taylor in her own online blog, which can be viewed here: (WARNING – Graphic and Violent Language) http://elexishennigh.blogspot.com/?zx=cdb3a7d3eab9bf8e. When Ms. Hennigh finally made her lack of interest in Mr. Taylor’s romantic advances clear to him, he threatened her with extremely graphic violence. Mr. Taylor was arrested, and Ms. Hennigh now has to live with both the fear of Mr. Taylor acting out on his threats, and the embarrassment of her poor judgment being made very public. While her case is an extreme example of carelessness with online communications, it highlights the potential risks. What seemed innocent enough at the beginning became a very serious and scary situation in a short period of time.

Another risk of sharing information online is identity theft. Douglas, Leonard and Garvey was recently involved in a case where a client’s information, posted on Facebook, was used to create a very convincing “clone” Facebook page by a third party. The “clone” site was so convincing (including a picture of our client) that the client’s friends began communicating and sharing information with the “clone” site. It is not hard to imagine how the use of a “clone” Facebook page could be used to the detriment of the person being cloned, and potentially the detriment of that person’s friends and family who were duped by the convincing fake.

The moral of the story is simple – if you wouldn’t share the information with a random stranger walking down the street, you probably should not post it online. In addition, you should really think twice, or three times, about “friending” people you have never met in person. The cases involving Ms. Hennigh and our client show just a few of the dangers presented by the online virtual world that the new generation of social networking sites has created.

NH SLIPPERY ROADS CAUSE FATAL ACCIDENT

Administrator — Tue, 01 Mar 2011 14:47:23 +0000

Recently, a New Hampshire woman was killed when she lost control of her car on a slippery road and hit a head-on into a school bus traveling in the opposite direction. As New Hampshire drivers, and especially this winter, we have all experienced the horrendous road conditions. Difficult road conditions require extra attention in order to maintain control of our vehicles and avoid auto accidents.

This fatal accident is a reminder of the serious consequences of auto accidents. In this auto accident, a 25 year old woman died at the scene of the accident. However, even less serious accidents can have a long-term impact on victims and their families. This disruption includes missed time from work, pressure from lost wages, multiple appointments for doctors and physical therapy and dealing with insurance adjustors trying to give you the least amount of compensation for your injuries.

If you are the victim in an auto accident, your focus needs to be on getting better. This means following your doctor’s instructions. We hope you stay safe this winter but please contact us if you need an experienced auto accident lawyer. We will handle the insurance company so you can concentrate on your recovery.

CONSUMERS SHOULD BE AWARE OF SO-CALLED “PRICE-MATCHING” SCAMS

Administrator — Thu, 10 Feb 2011 11:48:48 +0000

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.

RISKS OF BEING AN UNPAID HELPER

Administrator — Thu, 10 Feb 2011 01:08:32 +0000

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.

“BIG BROTHER” IS STILL WATCHING – ELECTRONIC SURVEILLANCE RECORDS BECOMING EVER MORE IMPORTANT IN LITIGATION

Administrator — Sun, 06 Feb 2011 18:51:55 +0000

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.

YOU MAY BE ENTITLED TO PERMANENT IMPAIRMENT COMPENSATION

Administrator — Sun, 23 Jan 2011 20:45:58 +0000

CAN YOU SUE FOR A VIOLENT MARRIAGE AFTER YOU ARE DIVORCED?

Administrator — Thu, 23 Dec 2010 15:37:11 +0000

The interplay between ending a marriage that may have involved domestic violence for several years and the right of a wife to sue her husband after divorce recently came together in a case in California. In Boblitt v. Boblitt, the California Appellate Court considered a civil lawsuit for money damages on a tort claim brought by a wife against her husband for a broken jaw and a history of physical abuse during their 24 year relationship and marriage.

The husband moved to dismiss the case saying that part of the divorce code in California included taking into account a history of domestic violence in determining support and alimony. He said that the wife’s issues all could have been litigated in the marital case, thereby foreclosing her from filing a lawsuit after the divorce was final.

The doctrine of res judicata means that once a case is decided it is over and done with. However, a tort action, like the one she brought, is based on the right to be free from personal injury. The court said there was no sound basis for concluding that the marital code would have fully compensated her for the pattern of violations of those rights. In other words, considering domestic violence and setting a level of support does not vindicate the primary right of a woman to be free from personal injury. Therefore, the wife had a right to proceed with a civil action for money damages.

WINTER WEATHER TIPS Pt II – AVOIDING SLIP AND FALLS

Administrator — Thu, 16 Dec 2010 10:08:51 +0000

This is Part II of the series on avoiding both personal injury and liability due to winter weather. In the first part, we discussed some winter driving issues. In this installment, we’ll discuss staying on your feet, and making sure your guests do as well.

In Part I, we made the recommendation to purchase and install a set of snow tires on your car to give yourself addition bite on slippery roads. Just like your car transmits all of your intentions through the four contact patches of your tires, your body transmits all of its intentions about walking (if you’re lucky!) through the contact patches of your shoes. For this reason, it is obviously important to choose winter appropriate footwear before venturing out in the slush, snow, and ice. Deep treads are recommended, as are shoes with good ankle support to keep your feet squarely placed on the ground.

Winter driving strategies also have parallels when it comes to transiting by foot. Like you would in your car, look for those paths that are well-worn by previous pedestrians. Use caution in planting your feet when you are forced to cover areas of uncertain traction. Try to avoid carrying heavy loads that place you off-balance when you are required to cover slippery ground. Avoid the temptation to rush.

In addition to taking care of your own safety with regard to winter-time walking, you may also have a duty to take precautions for the safety of others. If you are a landowner or business owner, you have a duty to take all reasonable precautions to mitigate against foreseeable risks to guests. In the winter, that means making sure that the walkways that guests are likely to use are properly shoveled and treated to reduce their slipperiness.

In the next blog, we’ll provide additional tips for dealing with imminent loss of control when you are driving on wintery roads.

FREE BIRD? THE CASE OF NEW HAMPSHIRE V. WARD BIRD: A MISCARRIAGE OF JUSTICE? PART III: A WORD ABOUT THE APPEALS PROCESS IN THE NEW HAMPSHIRE SUPREME COURT

Administrator — Thu, 16 Dec 2010 10:02:12 +0000

One of the things that has caused some of Mr. Bird’s supporters to feel dissatisfied with the New Hampshire Supreme Court’s decision concerns the standard of review applied by the Court and the fact that the Court gave what some see as excessive deference to the government. The first thing to understand about New Hampshire appeal in the Supreme Court is that the Supreme Court is not a “second jury.” The Supreme Court judges assume that the jury got all of the factual questions right. Showing this kind of deference to the factual findings of juries is entirely appropriate. In fact, the system could not operate if the Supreme Court was able to second guess the jury verdict when it hears appeal. Appeals are usually limited to the question of whether the trial judge made an error of law.

The high burden faced by a party appealing a lower court decision, and the deference shown to lower court and jury proceedings, is not unique to New Hampshire. Although there may be some very subtle differences from state-to-state, in general, appellate courts exist to review trial court decisions solely for errors of law. The Supreme Court’s deference to findings of fact in the lower court is standard operating procedure; Mr. Bird is not being picked on in this regard.

FREE BIRD? THE CASE OF NEW HAMPSHIRE v. WARD BIRD: A MISCARRIAGE OF JUSTICE? PART III: A WORD ABOUT THE APPEALS PROCESS IN THE NEW HAMPSHIRE SUPREME COURT

Administrator — Tue, 07 Dec 2010 21:05:41 +0000

SLIP AND FALLS AT THE MALL

Administrator — Tue, 07 Dec 2010 20:45:15 +0000

The next several weeks will find many of visiting stores and malls to do holiday shopping, as the temperatures plummet and ice forms underfoot. Commercial establishments owe a duty of reasonable care to keep the pathways and parking lots that you use to access their places of business free of dangerous accumulations of snow or ice. Many such establishments do a fine job of this, but some do not. Be on the lookout for ice, so you can avoid it and avoid a fall. But, even if you are careful, you may still have an accident. You may find yourself striding along a sidewalk, approaching the entrance to a mall or store, and suddenly your feet come out from under you. You just fell on a patch of black ice because the people responsible for maintaining the premises did not salt or sand appropriately.

Of course, your first thoughts in such a moment will concern your injuries, if any, and the pain you are suffering. In the event you decide to bring a claim later, however, it is best if you (or a friend or loved one on your behalf) can do a couple of things. First, it is tremendously helpful to have photographs of the accident scene and of the dangerous conditions that caused the fall. Photos will help show how visible the dangerous condition was, and will also come in handy if the store decides to oppose your claim by contending that the area was appropriately sanded or salted. Second, the accident should be reported to the store so the store has notice of the accident and has the opportunity to investigate promptly.

Be safe out there, but if you have an accident, take the steps that will help you protect your rights. Consult an experienced personal injury lawyer if you have questions

Free Bird? The Case of New Hampshire v. Ward Bird: A Miscarriage of Justice? Part II: The Definition of the Crime of Criminal Threatening

Administrator — Fri, 03 Dec 2010 20:20:26 +0000

Mr. Bird was charged with felony criminal threatening. The government charged that Bird:

did commit the crime of criminal threatening in that by his physical conduct he purposely attempted to place [the woman] in fear of imminent bodily injury or physical contact by waving [a] forty-five caliber handgun, a firearm and deadly weapon pursuant to RSA 625:11, V at [the woman] while telling [the woman] to get off of his property.

In order to gain a conviction at trial, the government is required to prove each and every element of the crime charged beyond a reasonable doubt. If a single juror has a doubt about even one of the elements, then the judge will tell the jury that it cannot convict a defendant. The elements of criminal threatening are: (1) that by physical conduct; (2) Mr. Bird placed Ms. Harris in fear of imminent bodily injury or physical contact; (3) by “waving” a deadly weapon at Harris while telling her to get off his property; and (4) he did all of these things purposely.

Based on the facts as set forth in the opinion, there was enough evidence for jury to find that Mr. Bird’s committed each of these elements. The main controversy seems to surround the rejection of Bird’s claims of self-defense. RSA 627:7, entitled “Use of Force in Defense of Premises,” governs when a person is justified in using non-deadly force to terminate the commission of a criminal trespass. It states, in relevant part:

A person in possession or control of a premises or a person is licensed or privileged to be thereon is justified in using non-deadly force upon another when and to the extent that he reasonably believes it necessary to prevent or terminate the commission of a criminal trespass by such other in or upon such premises . . . .

When a defendant raises a valid self-defense claim, as Bird did in this case, then the burden shifts to the State to prove that it was unreasonable for Bird to think that his conduct was necessary to terminate Harris’ act of criminal trespass. Based on the guilty verdict, it is clear that the jury believed that Mr. Bird’s conduct was not reasonable in light of the “threat” posed by the trespasser.

FREE BIRD? THE CASE OF NEW HAMPSHIRE v. WARD BIRD: A MISCARRIAGE OF JUSTICE? PART I: THE FACTS OF THE CASE

Administrator — Wed, 01 Dec 2010 15:08:30 +0000

The Ward Bird case has generated a great deal of local, and even national, attention. On its face, the fact that a man with no criminal record whose only action was showing a gun to an intruder suggests an extreme miscarriage of justice. The cases raises questions about the freedom a property owner to act in self-defense on his or her own property, judicial power, and the wisdom of laws establishing minimum mandatory sentences that are imposed without the benefit of a judicial “safety valve.” The facts of the case, as recounted by the New Hampshire Supreme Court in its October 27, 2010 decision, are as follows:

Christine Harris arranged to meet a real estate agent on March 27, 2006, at his office to view a property for sale in Moultonborough owned by Patricia Viano that Harris was interested in purchasing. That day, she called the real estate agent to inform him she was running late and could not make the appointment. Because he could not meet her later that day, she decided to look at the property herself. During her drive to the property, she became lost and stopped at the home of the defendant’s niece, where she asked for directions. The niece told her that the most direct route to the property was Emerson Path to Yukon Trail, and then a road to the left with a small bridge over a stream. The niece told her that if she passed a white “job trailer,” she was on the wrong property.

After Harris left the home of the defendant’s niece, the niece telephoned the defendant to warn him that Harris was going to look at the Viano property and that she might show up on his property. She also told the defendant that Harris was driving a Ford Ranger. Harris followed the niece’s directions and drove past signs that stated “Private road, keep out” on Emerson Path and “no trespassing” on Yukon Trail. She missed the left hand turn off of Yukon Trail, drove past the white trailer, and ended up in front of the defendant’s house. She parked her car and got out. The defendant emerged from his home “screaming, get the F off my property.” He came down from his porch, continuing to yell profanities while waving a gun at her. At trial, she testified that he pointed the gun “[t]owards” her. Harris asked the defendant whether he was the boyfriend of the woman selling the property. He repeated his command for her to leave his property. Harris eventually climbed back into her car, mouthing “[w]hat an ass.” The defendant then walked off the porch toward her waving his gun as she backed out of the driveway.

Over the next several days, we will be updating this series of postings on the Ward Bird case, addressing the law of criminal threatening, prosecutor’s exercise of discretion, the right of self-defense and the duty to behave reasonably, and the merits of statutory mandatory minimum sentences, such as the one imposed on Mr. Bird.

BLACK FRIDAY BRINGS BLACK WEATHER – USE CAUTION (PT I)

Administrator — Tue, 30 Nov 2010 11:05:38 +0000

Black Friday brought us some black weather this year, with sleet and freezing rain making walkways and roads slippery. This is not unexpected in New England, of course, but it serves as a useful reminder and warning of what to expect over the next several months. Slippery surfaces bring the potential for mayhem and accidents. It is time to think ahead and prepare for the snow, slush, and other precipitation that makes living in New Hampshire in the winter such a challenge.

For most people, the biggest worry in the winter is commuting. Driving a car that is floating along on top of snow, slush, or even ice, can be nerve-wracking for even the most skilled and experienced drivers. Without a doubt the single best investment you can make for winter safety is a set of high quality snow tires. If you haven’t driven on modern snow tires, you really cannot appreciate what you are missing in the winter. It is important to remember that every action you take behind the wheel is transmitted to the road through those four small contact patches where your tires meet the road surface. Bad tires lead to a poor connection with the road.

Snow tires are really not “too expensive.” When you consider that a good quality set of snow tires will last four, five, or possibly more winter seasons, they are really the cheapest form of insurance you can purchase to keep yourself and your loved ones safe in the winter. Even if you decide not to buy dedicated snow tires, you absolutely should not drive on wintery roads with worn out tires of any sort. The law requires that your tires have a minimum of 3/32 of an inch of tread. That really is not enough for winter driving. You want as much tread depth as you possibly can have so that your tires can find purchase in snow, and cut through slush. In addition to putting you and your vehicle at risk, having badly worn tires could expose you to liability in the event you injure someone else an accident caused by loss of grip in the winter.

Even with snow tires (and especially without), winter driving requires a more delicate touch than driving the rest of the year. You should steer, brake, and accelerate more gently, plan further ahead for stops, slow down earlier for corners, and leave much more room to the traffic ahead of you. Often times on multi-lane highways, a relatively “dry” line will be created in one lane as the majority of traffic tries to take advantage of the tracks cut in the snow by preceding vehicles. Obviously these “dry” lines have more traction, and are therefore somewhat safer to drive on. However, in some weather conditions these paths can still be deceptively slippery, so one should not give into the temptation to follow the car ahead too closely.

Four wheel drive and all wheel drive are a great advantage in the winter, but they do not make you invincible. The primary advantage that these systems give you is the ability to accelerate in slippery conditions. They are generally also slightly more stable at speed. However, AWD does not “create” traction. AWD drive cars just make somewhat better use of the traction available when accelerating. When it comes to turning and braking, you are still limited by the amount of traction your tires can provide. AWD combined with poor tires is a recipe for disaster, because the AWD allows you to accelerate despite the lower grip of worn tires, but the tires’ limitations often reveal themselves suddenly when the driver is forced to stop or turn. Just because you have AWD does not mean you should not invest in a good set of snow tires.

That’s it for Part I of the winter caution tips blog. Part II will deal with precautions you should take for walking in the winter, and making your property safe for others to walk on.

IMPROVE YOUR CHANCES TO GET A NEW JOB: ANNUL YOUR CRIMINAL RECORD

Administrator — Mon, 15 Nov 2010 22:03:19 +0000

In these economically challenging times, many people have found themselves unemployed and struggling to find new work. Employers are still wary and not in a big hurry to increase their work forces. If you are one of the many unemployed workers looking for a new job, you know it is a competitive job market. One aspect of keeping yourself above the competition is to bolster your resume or job application by clearing your record of an arrest or conviction.

It is common for employers to have a space on their job applications which requires you to disclose certain prior criminal arrests or convictions. Because many employers also do criminal background checks on prospective employees, you will not be able to “hide” from such a criminal record. Under New Hampshire law, any employment application may question you about a criminal record in terms of “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?” (emphasis added).

This means you should try to have an arrest or conviction annulled because you may not have to disclose it on a job application. If annulled, it is treated as if you had never been arrested or convicted. New Hampshire law permits you to petition the court in which you were convicted for an annulment of the criminal conviction, provided that the court finds that it will “assist in [your] rehabilitation and be consistent with the public welfare.” Different levels of criminal convictions have different minimum time periods that must pass without further criminal convictions on your record.

For non-motor vehicle related violations, the minimum time is one year. For misdemeanors (except certain sex crimes), the minimum is 3 years. For class B felonies, it is 5 years, and for class A felonies and certain minor sex-related crimes, it is 10 years. Crimes involving violence, obstruction of justice, and aggravating circumstances which lead to an extended sentence, are not eligible for annulment.

An attorney experienced in seeking arrest or criminal conviction annulments can assist you in filing the proper documents with the court. The attorney will file the necessary paperwork and appear with you before the court if necessary. Getting your record annulled is important and can have a significant impact on your life so you should contact a law firm with experience in annulment law.

PIT BULL MAULS 6-YEAR-OLD NEW HAMPSHIRE GIRL

Administrator — Mon, 15 Nov 2010 21:59:06 +0000

The recent news story of a 6-year-old girl in Hillsborough, New Hampshire being mauled by a family friend’s pit bull is a reminder of how devastating dog attacks can be on the victim.

In this case, the girl was running near the chained dog when she fell. The dog grabbed her by the arm and then bit her on the face. The injuries were severe – tearing open her cheek and tearing a muscle in her face. This young victim will have gone through hours of reconstructive surgery but will still have scars.

Under New Hampshire law, a dog owner is liable for injuries caused by their dog. As for criminal charges, the first time a dog bites is a $100 fine, the second time, if within a 12-month period, is a $400 fine. A third bite in one year may mean the dog owner is brought to court. In the Hillsborough case, the dog owner was arrested and charged with endangering the welfare of a child for “keeping a vicious dog and allowing it to be near children.”

In dog bite cases, it is important to have an experienced New Hampshire dog bite attorney representing you against the insurance company. They will help you understand your rights and maximize the recovery of damages.

7 THINGS TO LOOK FOR WHEN YOU CHOOSE A PERSONAL INJURY LAWYER

Administrator — Mon, 15 Nov 2010 21:53:37 +0000

Because your case is important to you, we suggest you consider the following criteria/factors when you choose a personal injury lawyer:

REASON #1

Select an Attorney with a Focused Practice

Some lawyers and law firms try to do it all. It is important to choose an attorney who focuses on certain areas of the law. You need to find out how much of that attorney’s practice is in the area of personal injury for victims.

REASON #2

Select an Attorney with Trial Experience

Many lawyers claim to handle personal injury cases. Just look at the ads in the yellow pages or on TV. It is important to choose an attorney that has actual experience taking cases to trial. Insurance companies know which lawyers will take a case to trial and which lawyers just want to settle a case fast. Without an experienced trial lawyer on your side, it puts you and your case at a disadvantage.

REASON #3

Select an Attorney with a Track Record

Your personal injury case is important to you because it affects you and your family. Your case is the opportunity for you to get fully compensated for your damages. It is important to choose an attorney that has a record of accomplishment and can deliver a full and fair trial verdict or settlement.

REASON #4

Select an Attorney with the Necessary Resources

Many personal injury cases require serious investigation and are expensive to prepare. Your attorney will need to devote not only time to your case but the resources to hire medical experts, accident reconstruction experts or vocational rehabilitation experts, if necessary. The lawyer should have staff dedicated to your case. It is important to choose an attorney that has the resources to fully prepare your case.

REASON #5

Select an Attorney that Represents only Accident Victims

Many law firms try to have it both ways. They have some lawyers that represent accident victims and other lawyers representing insurance companies. It is important to choose an attorney whose loyalty is easy to read – one that only represents accident victims.

REASON #6

Select an Attorney Who Receives Referrals From Other Attorneys and Satisfied Clients

Some lawyers get most of their cases from an out-of-state 1-800 number or a telephone book ad. Find out the source of the attorney’s personal injury cases. It is important to choose attorneys who receive most of their cases from referrals from other lawyers or satisfied clients because that is a reflection on the quality and skill of their representation.

REASON #7

Select an Attorney Who Will take Your Case on a Contingency Fee

Make sure the attorney will agree that you will not pay attorney’s fees unless you recover in your case. It is important to choose an attorney who will believe in your case and agree to work for a contingency fee.

In a case with serious injuries, having an experienced New Hampshire personal injury lawyer representing you against the insurance company will help protect your claim and maximize your recovery of damages.

YES YOU SHOULD HIRE A PERSONAL INJURY LAWYER

Administrator — Mon, 15 Nov 2010 17:41:56 +0000

Personal injuries happen every day in New Hampshire. These injuries may have a long-lasting impact on the accident victims and their families. Your personal injury claim is your one chance to put your life back together and recover all damages for your injury. Having a lawyer on your side can help you with two important parts of your case. The first thing is to make sure you get prompt and necessary medical treatment. The second important thing is to make sure you receive full compensation for your injury.

Insurance companies have their own experienced adjusters or lawyers whose only job is to process personal injury claims and reduce the amounts paid to victims like you. They rely on the fact that many accident victims do not get an experienced New Hampshire personal injury lawyer. Without your own personal injury attorney, insurance companies count on the fact that you are unsure of what to do. Without the necessary experience, it is not surprising that many injured persons give a recorded statement or provide signed authorizations for their medical records without legal advice. Insurance companies are also aware that you do not know the fair value of your injury, which means you may accept a “quick and cheap” settlement. Insurance companies want to pay you the least amount of money while your personal injury lawyer’s job is to get you the full and fair amount for your injury.

Choose the Right Lawyer for Your Case

In cases with significant injuries, you need a lawyer representing you against the insurance companies. Choosing the right lawyer for your claim may make a difference in the amount of compensation you recover in your case. That is why you need an experienced personal injury lawyer to represent you against the insurance company. Count the number of lawyer advertising pages in your phonebook. There are probably 10 or 20 pages of lawyers with full size ads. Everyone has seen the 1-800-TV ads for lawyers claiming to be experienced accident lawyers. Just because a lawyer has paid for expensive advertising does not mean that the lawyer is right for your case or even has the actual trial experience needed to protect your claim.

Before you “hire” your lawyer you should learn if the lawyer has actually had any trial experience. Trial experience is one of the most important factors to consider in hiring your attorney.

Insurance companies know if your attorney is skilled and experienced in bringing a case to trial. The threat of an experienced trial attorney taking your case to trial puts pressure on the insurance company to offer you fair compensation. The insurance company may raise the amount to resolve your case if your attorney is willing and able to go to trial to fight for your case. Without this leverage, the insurance company will try to dictate the value of your case. Having an inexperienced lawyer on your side may put your case at a disadvantage.

Make sure you protect your claim and maximize your recovery by having an experienced New Hampshire personal injury lawyer represent you.

WINTERTIME BRINGS PERSONAL INJURY ACCIDENTS

Administrator — Tue, 02 Nov 2010 21:07:36 +0000

As the weather gets colder and we all begin preparations for winter, many of us find ourselves operating dangerous machines. We run wood processors and woodsplitters to ready firewood. When the snow falls, as soon it will, we fire up our snowblowers. Be careful with these machines! A moment’s carelessness could cause you permanent injury and change your life forever. Shutting the machine off when working on it is the only way truly to ensure that your body parts do not become grist for the machine’s mill. Read the owner’s manual to determine what other safety precautions you should take in operating the machine. Regardless of how familiar you may be with machines in general, do not assume that you know all the idiosyncrasies of your machine without having read the owner’s manual.

If you do suffer injury as a result of operating machinery, get medical treatment promptly, and consider consulting an experienced products liability lawyer as well. A serious injury can have devastating consequences on your life. You want to make sure you know your legal rights.

WRONGFUL TERMINATION: DON’T GET THE LAST WORD!

Administrator — Tue, 02 Nov 2010 20:58:58 +0000

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.

PHONING IT IN

Administrator — Tue, 26 Oct 2010 21:15:29 +0000

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.

POLICE KEEP PUSHING FOR EVER-TOUGHER DWI STANDARDS

Administrator — Fri, 22 Oct 2010 19:07:32 +0000

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.

PROTECTION FOR THE PREGNANT

Administrator — Fri, 22 Oct 2010 18:48:46 +0000

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.

SEXUAL HARASSMENT INCIDENTS NEED NOT OCCUR AT THE WORKPLACE

Administrator — Fri, 22 Oct 2010 18:45:06 +0000

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.

CAN I RECOVER UNPAID COMMISSION?

Administrator — Wed, 20 Oct 2010 16:13:00 +0000

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.

AVELOX® — INJURED BY MEDICATION?

Administrator — Wed, 20 Oct 2010 16:03:25 +0000

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.

CHUCK DOUGLAS HELPS POLICE IN DEATH PENALTY CASE

Administrator — Tue, 19 Oct 2010 20:56:59 +0000

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.

CAN YOUR EMPLOYER CHANGE YOUR RATE OF PAY ORALLY?

Administrator — Tue, 19 Oct 2010 20:54:40 +0000

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.

STARTLING INCREASE IN CYBER-BULLYING

Administrator — Mon, 18 Oct 2010 21:09:02 +0000

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.

HOW MUCH IS YOUR PERSONAL INJURY CLAIM WORTH?

Administrator — Mon, 18 Oct 2010 20:51:52 +0000

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.

JUSTICE DELAYED — NEW HAMPSHIRE COURT SYSTEM

Administrator — Sun, 03 Oct 2010 17:31:23 +0000

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.

And Hillsborough County just announced:

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 info@nojustice.org

ARE YOU REALLY AN EMPLOYEE OR NOT?

Administrator — Tue, 21 Sep 2010 18:16:12 +0000

Misclassification of employees as independent contractors is a violation of New Hampshire law, and it fundamentally undermines New Hampshire’s strong business climate.

Misclassification for purposes of workers’ compensation or the payment hourly wages creates a competitive disadvantage for law-abiding businesses. More importantly, it leaves those workers who are really “employees” without benefits, such as workers’ compensation or matching social security contributions, which they are entitled to receive under the law.

Misclassification deals primarily with hiring practices used by some employers to avoid obligations they have under the law. These obligations include providing workers’ compensation coverage, unemployment coverage and other taxes, withholdings and benefits for their workers.

There are workers in New Hampshire who truly operate as independent contractors. But there are also businesses that require their workers to call themselves independent contractors in order to gain an unfair competitive advantage. The employer will pay the worker, but the employer does not provide benefits to the worker, including mandated workers’ compensation coverage, social security contributions, matching federal unemployment, etc.

The state now has a Web site – www.nh.gov/nhworkers – where anyone can report suspected misclassification or other workers’ compensation-related issues in a secure environment.

The misclassification of employees or independent contractors is a fraud that costs all of us – - from the individual worker who is misclassified and missing certain benefits to the employers who play by the rules.

MEDIATION: WILL IT SETTLE MY CASE?

Administrator — Tue, 21 Sep 2010 18:13:00 +0000

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.

DO LAWSUITS “FIGHT” BULLYING?

Administrator — Tue, 21 Sep 2010 18:07:48 +0000

Around the country, including New Hampshire, more and more lawsuits are being filed by parents against school districts who allow students to be bullied by other students. Awareness of bullying as a serious child safety issue is at an all-time high, as is parental awareness of legal options to deal with serious bullying cases.

A suit was filed in January of this year by a mother in New York, alleging that her son’s school district failed to protect him from bullying that took place on his school bus. A suit claiming $10 million in damages was filed in Virginia by the mother of a student who committed suicide after being repeatedly hazed by another student. The mother alleged that the school was aware of the bullying and did nothing to stop it. Another $10 million suit was filed in Maryland in April by a grandmother who claims that bullying drove her grandson to hang himself after school officials ignored his repeated complaints about the treatment he was receiving from other students. Another attempted suicide case in Wisconsin led to a lawsuit by the mother of a quadriplegic child who was aggressively taunted by classmates.

These are difficult cases to bring and a variety of legal theories are being used in this new wave of bullying cases with mixed results. Some of them rely on anti-bullying laws, like the ones New Hampshire recently updated in the wake of the Phoebe Prince case in Massachusetts. Others rely on Title VII or Title IX of the Civil Rights Act, and are based on unlawful sexual harassment and discrimination. Many rely on simple common law theories like negligence and negligent supervision.

If your child has been the victim of bullying, and your school system refuses to take the necessary steps to put a stop to it, you need to contact a law firm with trial experience.

COURT: PROSECUTORS MUST SEEK JUSTICE, NOT JUST CONVICTIONS

Administrator — Thu, 09 Sep 2010 18:45:27 +0000

In a recently issued decision, the New Hampshire Supreme Court took the highly unusual step of reminding prosecutors that their duty is “to seek justice, not merely to convict.”

The case State v. Leveille, slip op. August 19, 2010, was an appeal from a conviction of first degree assault. The case began as an unfortunate family dispute involving snow removal and allegations of improperly parked carse, and ended with gunshots fired. Mr. Leveille was charged with attempted murder, first degree assault, and second degree assault. Although the decision does not detail the facts, Mr. Leveille apparently introduced evidence that the gun discharged by accident and asked the judge to instruct the jury to acquit him of attempted murder and first degree assault if it believed that the gun discharged accidentally. Despite the fact that there was evidence that the gun discharged accidentally, the prosecutor did not want the judge to instruct the jury that Leveille should be acquitted if the jury believed the gun discharged accidentally.

The superior court judge rejected the prosecutor’s efforts to limit the jury instructions, and advised the jury to acquit if it believed that the gun discharged accidentally. The Supreme Court agreed with this decision, but was clearly not amused by the prosecutor’s attempt to prevent the jury from hearing the complete statement of law sought by the defense. Since the Court did instruct the jury that an accidental discharge could lead to a not guilty finding, Mr. Leveille’s conviction was upheld. Hopefully, the Court’s warning to prosecutors to seek justice will be heeded.

IF WRONGFULLY TERMINATED, WHAT DOES IT MEAN TO MITIGATE DAMAGES?

Administrator — Wed, 08 Sep 2010 13:53:30 +0000

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.”

EMPLOYEES BEWARE OF YOUR E-MAILS

Administrator — Wed, 08 Sep 2010 13:47:48 +0000

E-mail is both a blessing and a curse. It is a blessing because it is such an efficient way to communicate, substantially reducing those annoying games of telephone tag that employees often had to play in the not-so-distant past, when e-mail was not a fixture in every office. It is a curse because we often send e-mails unthinkingly, not paying sufficient heed to what we write before we hit “send.” Once you hit that “send” button, and you send an e-mail from your office account, you have created a permanent written record to which your employer has access. Have you given your employer ammunition if your employer wants to fire you?

Most employers now have electronic communications policies governing e-mails that employees send from company accounts. Usually, such policies state that employees should primarily use company e-mail for work-related purposes. Sometimes the policies will state that the company permits limited use of company e-mail for personal purposes. The policies generally will provide, however, that employees must keep the content of their e-mails professional and free of any content that is sexual, threatening, vulgar or otherwise improper.

You should familiarize yourself with any electronic communications policy that your employer may have adopted. Regardless of whether your employer has such a policy, however, you should ensure that e-mails that you send from your company account are free of any content that your employer could later use against you. If your employer wants to fire you for an illegal reason, your employer will likely search for a legitimate business reason to justify the termination decision. These days, the first place an employer typically searches for such a legitimate business reason is the employee’s e-mail account.

BEWARE OF SHARING PRIVATE INFORMATION AT WORKPLACE

Administrator — Wed, 08 Sep 2010 13:43:09 +0000

Do you regard your fellow employees as your friends? Do you chat with them during the workday regarding details of your personal life? Do you sometimes socialize with them after work and talk about personal matters?

If so, consider changing your habits and keeping your private information private. Why? It’s certainly desirable to be friendly with your co-workers. A harmonious workplace is certainly more pleasant and productive than an acrimonious one.

Yet, personal information that you share with your co-employees can come back to haunt you if you are fired. Suppose that you share details of stormy times in your marriage with your co-workers or, worse yet, with your supervisors. Then suppose you are sexually harassed in the workplace. You report the harassment and the company fires you a short time later, purportedly for “poor performance.”

You bring a claim for harassment and retaliatory discharge against your employer, claiming emotional distress as an element of your damages.

Your employer will almost certainly use the information that you shared about your domestic discord against you in at least two (2) ways. First, the employer will claim that you were unproductive and a “poor performer” in the workplace because you spent so much time talking about your personal problems. Second, your employer will claim that whatever emotional distress you claim stems from your marital problems, not from the alleged sexual harassment.

Keeping private information private when you are in the company of your co-workers guards against the danger that your employer may someday use as a weapon against you the confidences that you shared.

DOES AN INNOCENT FAMILY GIVE UP ITS RIGHTS IF IT KNOWS A FELON?

Administrator — Tue, 31 Aug 2010 19:18:55 +0000

Jerry Ray Bowen was a felon and probable gang member who apparently shot his sawed-off shotgun at his girlfriend’s car as she drove away following a violent break up. Not surprisingly, the police wanted to locate Bowen and his sawed-off shotgun. The police had heard that Bowen “might be staying at his foster mother’s home,” and obtained a search warrant for her home and any weapons found there.

Augusta Millender, the foster mother, and other members of her family were home when the SWAT team arrived to execute the search warrant. At 5:00 a.m. they were ordered to leave their home while the police searched for Bowen and his sawed-off shotgun, neither of which were found at the Millender home. What police did find, however, was Ms. Millender’s own (not-sawed-off) shotgun, and a box of .45 caliber ammunition. These items were seized.

Ms. Millender, who had been at home sleeping when the SWAT team burst through her front door, filed suit against the police for violating her Constitutional rights, specifically, her right to be free from unreasonable searches and seizures under the Fourth Amendment.

Civil rights claims against police can be uphill battles, but in the right circumstances, the cases are definitely worth pursuing. Often, the existence of a search warrant forecloses suit under the Fourth Amendment and allows the police to rely on “sovereign immunity” to avoid responsibility for their misconduct. In the Millender case, however, the 9^th Circuit Court of Appeals held that the police were not immune from suit because even though a judge signed the search warrant, the evidence that Bowen or his shotgun would be found in the Millender home was so scant that no reasonable officer should have believed that there was probable cause in the first place.

Victims of civil rights violations by police officers face a tough battle when they seek compensation from the government. Pursuing these claims requires skill and experience. At Douglas, Leonard & Garvey, we have brought cases against police officers and other governmental officials to protect our clients’ constitutional rights.

COPYING EMAILS AS EVIDENCE IN EMPLOYMENT CASES

Administrator — Tue, 31 Aug 2010 19:12:24 +0000

You know you are about to be fired for doing the right thing, or because you complained about sexual harassment. You have emails or memos from your boss or co-workers which you know will prove the truth of your allegations. Can you take them with you if you are fired or when you quit after the retaliation becomes too much for you to endure?

The answer, of course, is that it depends. The wisdom of taking materials you obtained or where given access to through your employment, so that they might be used in a lawsuit, varies with the circumstances. If your employer has a policy prohibiting taking work-related materials home with you, or using them for any non-work-related purpose, then sending e-mails home or taking documents with you on the way out may have a negative impact on your case.

When there is a policy against personal use or removal of work-related material, and your employer discovers in the course of your lawsuit that you removed work-related materials from your employer’s premises, it is sometimes possible for the employer to effectively “re-fire” you even after you have left their employment, for violating a company policy. In those cases where this rule (which is termed the “after-acquired evidence rule”) is applicable, your former employer may be able to use it against you to substantially limit your ability to recover certain damages, particularly lost wages and benefits.

Therefore, if you know your employment situation is looking bleak due to sexual harassment, illegal discrimination, or retaliation for your doing the right thing, you should contact a trustworthy employment lawyer with real trial experience. One of the things you should discuss, if possible, before you resign or before your employer has a chance to terminate you, is whether to make copies of e-mails and other documents that might help your case.

BEWARE OF HOSPITAL INFECTIONS

Administrator — Wed, 25 Aug 2010 15:42:37 +0000

As a result of a new state law, New Hampshire released its first report on hospital infections occurring during 2009. The report examines infections that were developed after heart, colon and knee surgeries.

The good news is that the report showed patients developed 134 infections last year while being treated for another condition, which is a number lower than state officials expected based on national data. On the cautionary side, the report noted a few hospitals did have higher rates for certain procedures that would warrant changes to their current infection prevention practices.

The report was prepared based upon a state law that required disclosure of infection rates. New Hampshire is among 27 states that require public disclosure of hospital infection rates by each hospital.

This law is an important step in helping protect patients. There are many stories of patients going into the hospital to be treated for one condition but then develop an infection. Such infections and complications therefrom can require lengthy and expensive hospitalizations and even can cause death from these unrelated problems.

To view a copy of the link go to New Hampshire Department of Health and Human Services, http://www.dhhs.state.nh.us

(NOT) DRIVING WHILE INTOXICATED

Administrator — Wed, 25 Aug 2010 15:31:17 +0000

A person does not have to be actually driving a car to be convicted of driving while intoxicated in New Hampshire. There have been numerous cases in which the police have prosecuted drivers who have either pulled over and fallen asleep and not even left the parking lot.

Under New Hampshire law, a person can be charged with DWI if he or she is in “actual physical control” of a vehicle. “Actual physical control” does not require the driver to be in motion. People are routinely arrested for being in a car and in possession of the keys while intoxicated.

It sometimes happens that a person does not realize that he or she has had too much to drink until they have begun driving. From a public safety perspective, the rational thing for the government to encourage a person to do is to pull over and call for help or to sleep it off. Unfortunately, a car pulled over to the side of the road is likely to attract the attention of the authorities. If a person is found in a car, in a public place, in possession of the keys, then a DWI arrest and prosecution is likely to follow.

The most highly publicized of these not-driving-while-intoxicated cases involved the former police chief on the Town of Stratham, New Hampshire. According to newspaper reports, the police chief was arrested while sitting in a car parked at the beach. He allegedly later explained that his wife had recently passed away, and while grieving he drove to one of her favorite places and had a few drinks. He said he had no intention to drive in his condition. The prosecution accepted this explanation and ended up dropping the charges. This was a good decision by the prosecution, but we are left to wonder whether the same degree of understanding would have been given to an ordinary person who was not in the law enforcement field.

The law that allows the police to charge a person for being in “actual physical control” of a vehicle creates a very real problem for the driver who does not realize that he or she is impaired after driving part way to their destination. The best advice is to call a friend or a cab before getting in the car in the first place.

GROUNDS FOR DIVORCE IN NEW HAMPSHIRE

Administrator — Wed, 25 Aug 2010 15:23:52 +0000

The vast majority of N.H. divorces are no-fault, based on irreconcilable differences. The most often cited grounds in fault-based divorces are shown here:

	2000	2004	2008
TOTAL DIVORCES	5,970	5,106	4,913
Irreconcilable differences	5,920	5,042	4,847
TOP THREE FAULT-BASED:
Adultery	26	19	27
Extreme cruelty	7	9	9
Abandonment	2	1	10

For additional information, visit N.H. DIVISION OF VITAL RECORDS ADMINISTRATION at : http://www.sos.nh.gov/vitalrecords/

GUESS WHO IS LOOKING AT SOCIAL NETWORKING SITES – EMPLOYERS!

Administrator — Wed, 25 Aug 2010 15:17:04 +0000

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.

POSTNUPTIAL AGREEMENT IS ENFORCEABLE IN MASSACHUSETTS BUT NOT YET IN NEW HAMPSHIRE

Administrator — Fri, 13 Aug 2010 12:24:03 +0000

A husband in a divorce could enforce a postnuptial agreement protecting his interest in Florida real estate, Massachusetts’ highest court ruled on July 16, 2010. The parties had entered into a postnuptial agreement after 19 years of marriage in response to problems that had developed in their relationship. Under the agreement, the wife relinquished any interest in approximately $5 million in Florida real estate owned by the husband through his family’s businesses.

When the parties later divorced, the husband argued that the postnuptial agreement was enforceable because it was negotiated by independent counsel for each party, based on full financial disclosures, and fair given that the husband was obligated to pay the wife $5 million.

The Massachusetts court rejected the notion that postnuptial or “marital” agreements are categorically unenforceable and stated:

“Marital contracts are not the product of classic arm’s-length bargaining, but that does not make them necessarily coercive. …”

“Such contracts may inhibit the dissolution of a marriage, or may protect the interests of third parties such as children from a prior relationship. In any event, a marital agreement will always be reviewed by a judge to ensure that coercion or fraud played no part in its execution.”

New Hampshire legislation allows for premarital agreements but the legislation, when enacted decades ago, deleted a provision for post-marital agreements. Thus, the same result here is not clear given our legislative history.

MORE MOTORCYCLE DEATHS IN NEW HAMPSHIRE

Administrator — Thu, 12 Aug 2010 16:47:20 +0000

Last year was wet, with many rainy weekends. This year has been sunny and dry and has brought out motorcycles in greater numbers. The early warm weather has made this year more rideable. Unfortunately, with the warm weather, the State police report that more motorcycle operators have died in New Hampshire this year than this point in 2009. If the number of fatalities continues at that rate, the total deaths for 2010 will surpass that State’s average of 27 motorcycle operator fatalities.

There are many factors involved in the crashes but we all need to be aware of motorcycles on the roadway to reduce the risks to motorcycle operators.

JUSTICE DELAYED IS JUSTICE DENIED

Administrator — Thu, 12 Aug 2010 16:21:51 +0000

Budget cuts have left the entire court system in New Hampshire at a dangerous point that is hurting victims. Because state budget cuts have eliminated judges and court staff, jury trials have been cancelled and cases take longer to move through the system. For example, this means civil (non-criminal) cases by a patient harmed by medical malpractice or an accident victim seeking compensation won’t have a jury trial for more than a year.

The elimination of civil jury trials benefits insurance companies. And it doubly impacts those people injured because they have to wait for their day in court – a year or two sometimes – and defendants, like insurance companies, are less inclined to offer reasonable settlements with no trial scheduled. It is common for insurance companies to try and settle claims with the pressure of facing a jury trial. Without facing a jury trial, insurance companies are in a position to make unreasonably “low” offers.

Justice is not being done when victims of an auto accident, a wrongful death, medical malpractice or employment discrimination are compelled to accept “low” settlement offers. Insurance companies will take advantage of the cancellation of civil jury trials.

INSURANCE COMPANIES: DENY, DELAY AND DEFEND

Administrator — Thu, 12 Aug 2010 15:35:08 +0000

Researchers at the American Association for Justice identified the “worst insurance companies for consumers. The list includes companies across different types of insurance, including homeowners and auto insurers, health insurers, life insurers and disability insurers.

The report identifies the “Ten Worst Insurance Companies” as:

1. Allstate

2. Unum

3. AIG

4. State Farm

5. Conseco

6. WellPoint

7. Farmers

8. UnitedHealth

9. Torchmark

10. Liberty Mutual

The report concludes that many insurance companies do all they can to maximize profits and rid themselves of claims. To read the complete report, click on the link: Ten Worst Insurance Companies in America

SHOULD YOU SIGN A SEVERANCE AGREEMENT?

Administrator — Fri, 23 Jul 2010 17:57:01 +0000

The unexpected news shocks you and fills you with fear for your future. Your longtime employer is firing you. Your boss tells you he is “laying you off,” but is that true? How come no one else in your department is being laid off? You suspect that your employer is actually firing you because you recently applied for Family and Medical Leave Act (FMLA) benefits.

Your boss ushers you into his office and drops a lengthy contract in front of you titled “Severance Agreement.” “We appreciate your service,” the boss states warmly. “Just sign this Agreement and we will pay you four (4) weeks severance.” You don’t know when you will next see a paycheck. It’s tempting to take the money being offered you. But what might you be giving up?

If your employer asks you to sign a severance agreement when terminating your employment, you should always review and discuss the agreement before you sign it with an employment attorney who represents employees. Typically, an employee who signs a severance agreement releases his or her employer, fully and finally, from liability for all claims the employee may have had against the employer, in exchange for whatever severance benefits the employer offers to pay. The employee in the example above might have a winning FMLA retaliation claim. Winning the FMLA claim may entitle the employee to recover his lost wages, liquidated damages equivalent to his lost wages, and reasonable attorney’s fees. If the employee signs the severance agreement and accepts the four (4) weeks of severance pay, however, he has probably given up his right to pursue any claim against his employer.

Know your rights. More often than not, generosity does not motivate an employer to pay severance benefits. Employers generally pay severance benefits in order to prevent their employees from bringing claims against them. Your employer’s lawyer probably drafted the severance agreement that your employer hands you to sign, to make sure the agreement achieves all the employer’s objectives. So, why not get your own lawyer when faced with a severance agreement? Make sure that you are not giving up your right to pursue valuable claims against your employer in exchange for a few weeks’ pay.

PROTECT YOUR WORKERS’ COMPENSATION BENEFITS

Administrator — Fri, 23 Jul 2010 17:49:20 +0000

You fall down and injure your hand at work. You report the work injury to your employer, as you know you must. You expect that your employer will file the necessary report with the New Hampshire Department of Labor. Weeks pass, however, and your employer fails to file any claim. You politely remind your employer several times to file the claim, and your employer assures you that it will, but nothing happens. What should you do?

When your employer fails to notify the New Hampshire Department of Labor of your injury as it should, you must complete and file the required form yourself in order to preserve all rights that you may have to workers’ compensation benefits. You may obtain the required form (Form 8aWCA, Notice of Accidental Injury or Occupational Disease) from the State of New Hampshire website.

No action will be taken on your claim until the Form 8aWCA is filed, so do not dally. New Hampshire law requires your employer to file the required form with the New Hampshire Department of Labor within five (5) days of receiving notice of the injury. If you give your employer notice of a work injury, and your employer fails to give notice to the New Hampshire Department of Labor within five (5) days, you might gently remind your employer of its obligations. But if your employer continues to drag its feet, file the form yourself, or seek assistance from a New Hampshire attorney who represents employees with workers’ compensation claims. The responsibility to pursue all the workers’ compensation benefits to which you may be entitled ultimately rests with you.

SHOULD YOU SETTLE YOUR WORKERS’ COMPENSATION CASE – PART II

Administrator — Fri, 23 Jul 2010 17:41:17 +0000

Employees who suffer a permanent loss of use of a body part as a result of a work-related injury are also entitled to receive a permanent impairment award. The amount of the permanent impairment award is determined by the following calculation: (the percentage impairment as determined by a doctor) X (the employee’s compensation rate) X (a statutorily determined number of weeks depending on the body part). An employee who lump sum settles his case is not entitled to any further permanent impairment compensation associated with the claim being settled.

An employee whose injury renders him incapable of returning to his occupation may also be entitled to vocational rehabilitation benefits. An employee receiving vocational rehabilitation benefits works with a vocational rehabilitation counselor in an effort to find employment. The employee may also receive education or retraining. Once an employee lump sum settles his case, however, the employee’s entitlement to vocational rehabilitation benefits ceases.

The last benefit available to an injured employee is medical benefits. The carrier must pay for reasonable medical services associated with the employee’s work-related injury for so long as the employee requires such services. The carrier’s obligation to pay for such medical services survives the lump sum settlement. In fact, if the employee is represented by legal counsel, the attorney generally must agree to continue to represent the employee in connection with any medical bills that the carrier may dispute in the future.

Why should an employee lump sum settle? If the employee has a game plan for the future and is not dependent on weekly disability checks, it is often to the employee’s financial benefit to enter a lump sum settlement. Depending on the facts and circumstances of the case, a lump sum settlement may pay an employee a sum equivalent to months or even years of benefits at one time. An employee is never under any obligation to lump sum settle a workers’ compensation claim, however, and in fact the Department of Labor will disapprove any settlement if the Department perceives that the employee is under any pressure to settle the case. Before entering any settlement, employees must carefully consider what they are getting and what they are giving up.

SHOULD YOU SETTLE YOUR WORKERS’ COMPENSATION CASE – PART I

Administrator — Fri, 23 Jul 2010 17:37:27 +0000

Injured employees receiving workers’ compensation benefits often wonder, “Can I settle my case?” The New Hampshire Department of Labor (the State agency that hears workers’ compensation cases and regulates workers’ compensation issues) allows injured employees and workers’ compensation carriers to lump-sum settle claims so long as at least one (1) year has elapsed since the date of injury. The Department of Labor must approve a lump sum settlement.

Whether an employee should settle his case, and whether the settlement will receive Department of Labor approval, depends on several factors.

The Department of Labor is primarily concerned with ensuring that employees settling their cases understand the rights they are giving up by entering the settlement, as well as the rights they are retaining. To ensure that employees are fully cognizant of the consequences of a lump sum settlement, the Department holds a hearing in connection with each lump sum settlement agreement.

Of the four (4) types of benefits available to injured employees through workers’ compensation, an employee gives up rights to three (3) of these benefits by entering a lump sum settlement.

Injured employees disabled from work because of their work-related injuries receive disability benefits in the form of weekly checks in the amount of 60% of their average weekly wage (a sum known as the “compensation rate”). An employee who lump sum settles his case is no longer entitled to receive disability benefits. The carrier must pay disability benefits through the date that the Department of Labor approves the settlement. Then the weekly payments stop.

20 TIPS TO PROTECT YOURSELF FROM MEDICAL ERRORS – PART II

Administrator — Fri, 23 Jul 2010 17:02:38 +0000

11. You need to ask your doctor to explain the treatment plan you will use at home.

12. You need to make sure you and your doctor agree on exactly what will be done during an upcoming surgery.

13. You need to ask questions or voice any concerns you have.

14. You need to make sure that your primary care doctor is involved with your case.

15. You need to make sure that all health or professionals involved in your care have important health information – don’t assume they know everything they need to know.

16. You need to have a family member or friend with you if you need help speaking up for you.

17. You need to find out why a test or treatment is being recommended or are you better off without it.

18. You need to ask the results of any tests.

19. You need to learn about your condition and treatment options.

20. You need to be involved and informed in order to protect yourself from medical errors.

20 TIPS TO PROTECT YOURSELF FROM MEDICAL ERRORS – PART I

Administrator — Fri, 23 Jul 2010 16:56:13 +0000

Medical errors are one of the Nation’s leading causes of death and injury. A recent report by the Institute of Medicine estimates that as many as 44,000 to 98,000 people die in U.S. hospitals each year as the result of medical errors. This means that more people die from medical errors than from motor vehicle accidents, breast cancer, or AIDS.

1. You need to take part in every decision about your health care.

2. You need to make sure your doctors have all medications (prescription and over-the counter, including herbal supplements) you are taking.

3. You need to make sure your doctors know about any allergies and adverse reactions to medications.

4. You need to make sure any prescription can be read by the pharmacist.

5. You need to ask questions about any medicine so you understand why they have been prescribed (side effects, safe with other medicines, how to take it and for how long).

6. You need to confirm with the pharmacist your prescription is the medicine that your doctor prescribed.

7. You need to ask if you cannot understand the instructions on the prescription label.

8. You need to ask for written information about the side effects your medicine could cause.

9. You need to choose a hospital that has a great deal of experience with the procedure or surgery you need.

10. You need to ask all healthcare workers who have direct contact with you if they have washed their hands.

SEXUAL COMMENTS CAN CREATE A HOSTILE WORK ENVIRONMENT

Administrator — Thu, 22 Jul 2010 14:56:59 +0000

A physician running a clinic with approximately 25 employees apparently enjoyed telling dirty jokes and commenting on female body parts during the work day. One of the staff physicians, who was pregnant, did not appreciate the doctor’s continual obsession with breasts, breast feeding, etc. The doctor called himself a shock jock and, therefore, assumed because everyone involved was in the medical profession that somehow the normal requirements for dealing with human anatomy allowed him wider verbal leeway. Not so said a Federal Appeals Court.

On the other hand, a woman who was transferred from an environment within a company where the men were constantly streaming sexual comments and threats at her ended up in a department where the rhetoric was dramatically different and not offensive. Unfortunately, she waited too long to complain about the prior department she worked in and she missed the time limits under the law. The comments she did timely complain about were one employee talking on the phone about “chickies” and a sleepover with a woman. The court held that those comments were too trivial to support a hostile work environment sexual harassment case.

That is why you need to contact employment lawyers who represent employees if you are in an offensive environment. If you are unsure of your rights, feel free to contact us.

INACCURATE BREATH TEST MACHINES

Administrator — Wed, 23 Jun 2010 14:15:10 +0000

Recent revelations in Washington D.C. show just how fallible the breath test machines used by police to prosecute DWI cases can be. A consultant hired by the District found that every single one of the 10 breath machines used by the District were incorrectly calibrated. These inaccuracies caused the machines to show blood-alcohol content to be 20% higher than it actually was. “Nearly 400 people were convicted of driving while intoxicated in Washington D.C. since the fall of 2008 based on inaccurate results from breath test machines, and half of them went to jail….”

The Washington Post, June 10, 2010 http://www.washingtonpost.com/wp-dyn/content/article/2010/06/09/AR2010060906257_pf.html

The errors arose out of an error made by a single police department employee, who made a mistake when replacing one of the motor pumps inside the notoriously complicated machines. A District probe has found no malicious intent on the part of the employee. The lack of malicious intent affords scant solace to those wrongfully convicted by the mis-calibrated machines, however. Those people lost their licenses, their jobs, and sometimes their freedom, based on incorrect breath machine readings.

Fortunately, the New Hampshire Supreme Court recently rejected an attempt by state authorities to eliminate one of the few protections available to New Hampshire drivers against this kind of error. In the most recent legislative session, state officials tried to remove the requirement that New Hampshire drivers be given a sample tube of their own breath that they can have tested at an independent lab. The Supreme Court found that the second sample tube provided to drivers was required in order to ensure fairness. That decision can be found here:

http://www.courts.state.nh.us/supreme/opinions/2010/2010037opini.pdf

These developments in Washington, D.C. show how important it is for drivers who believe that their breath results are too high to contact an experienced lawyer to examine all possible defenses.

BULLYING – PART III

Administrator — Thu, 17 Jun 2010 19:47:00 +0000

Bullying has unfortunately remained in the news over the last several weeks. Following the story out of Massachusetts about the high school student who committed suicide after being subjected to systematic bullying, comes news from right here in Concord, New Hampshire of another serious bullying episode, which resulted in the physical disfigurement of a high schooler.

In the most recent case, a Concord High School student submitted to having a group of bullies tattoo an x-rated image and derogatory name on his buttocks, following a period of bullying and threats. The teenager, who reportedly had a developmental disability, submitted to having the tattoo done in the basement of one of the bullies after he was told he would no longer be taunted and threatened if he complied with the bullies’ demands. Of course, he was still picked on even after giving the bullies what they wanted. They forced him to pull his pants down in front of a gathered crowd of onlookers so they could take pictures.

These stories demonstrate how out-of-control bullying can get, and the importance of early intervention to protect students from the irreversible injuries that can occur. In the Concord case, it remains to be determined what Concord High School knew or when it knew it, but the tattoo incident happened during school hours. That begs the question of what was the school doing to monitor these students’ whereabouts. Given that a crowd had gathered to take pictures of the tattoo after it was completed, the word had obviously gone out that it was going to happen, before it actually did happen.

In the wake of these recent tragic incidents, the New Hampshire legislature has enacted a substantially revised version of RSA 193-F, our State’s anti-bullying law. The new law is scheduled to go into effect on July 1, 2010. The new enactment provides for many changes to the existing anti-bullying scheme, some of which are positive, and a few of which are less so.

One very positive step is a comprehensive definition of what constitutes “bullying” under the law. Under the original version of RSA 193-F, bullying was essentially undefined, which meant that one school or one teacher’s understanding of what constituted “bullying” could differ from another’s. That naturally led to inconsistent application of the statute’s reporting and student protection provisions.

In addition, the new definition of “bullying” includes a description of “cyber-bullying,” bringing the statute into the 21st century. The revised RSA 193-F also makes it clear that its reach extends to bullying which occurs off school grounds, if the off-campus bullying creates disorder within the school or at school-sponsored events.

The new law also provides for more detailed requirements for school anti-bullying policies, and new reporting requirements, including a requirement that schools report all substantiated cases of bullying to the Department of Education, and that the Department of Education prepare an annual report concerning the number and types of bullying incidents that have occurred in New Hampshire schools. There are also new formal requirements for educator and student training on identifying and preventing bullying.

There is one new section of the law which could be viewed as a negative. While the new statute sets an admirable standard of conduct for schools and school officials to follow, it prohibits private enforcement of the act. Essentially, that means when a school or school official drops the ball and fails to meet the requirements of the revised RSA 193-F, the victim cannot sue under the new act to recover for the harm done. The new law ends up being something of a toothless tiger then, for the students who most need its protections. If the N.H. Department of Education follows in the footsteps of the Banking and Insurance departments, this new law may not get the vigorous enforcement it should, and average citizens will have no power to enforce it themselves.

However, in the event a student is harmed by bullying due to a school’s failure to intervene, the student can still bring a lawsuit under a common law tort claim like negligence or negligent supervision, or breach of fiduciary duty. Nonetheless, educational institutions would have the maximum incentive to strictly enforce the beneficial provisions of the new version of RSA 193-F if a private right of action was available to students who are injured on those occasions when educators fail to comply with the new act’s provisions.

CAN BEING “TOO HOT” GET YOU FIRED?

Administrator — Thu, 17 Jun 2010 10:52:47 +0000

According to the New York City newspaper The Village Voice, Former Citibank employee Debrahlee Lorenzana has sued the New York City bank claiming that she was fired from her position as a banker for being “too hot.”
See video here:

As Lorenzana’s lawsuit states, her bosses told her that “as a result of the shape of her figure, such clothes were purportedly ‘too distracting’ for her male colleagues and supervisors to bear.”

According to one of Lorenzana’s friends, “I’ve seen men turn into complete idiots around her. But it’s not her fault that they act this way, and it shouldn’t be her problem.” Lorenzana claims that other female employees wore more revealing clothes, but because they were not as physically attractive as she is, nobody criticized them.

Lorenzana says that the branch managers started making offhanded comments about her appearance. She was told not to wear fitted business suits. She should wear makeup because she looked sickly without it. (She had purposefully stopped wearing makeup in hopes of attracting less attention.) Once, she recalls, she came in to work without having blow-dried her hair straight—it is naturally curly—and Fisher told a female colleague to pass on a message that she shouldn’t come into work without straightening it.

Citibank does have a dress-code policy, which says clothing must not be provocative, but does not go into specifics, and managers have wide discretion. But Lorenzana points out that, unlike her, some of the tellers dressed in miniskirts and low-cut blouses.

Lorenzana claims that the managers gave her a list of clothing items she would not be allowed to wear: turtlenecks, pencil skirts, and fitted suits. And three-inch heels. “As a result of her tall stature, coupled with her curvaceous figure,” her suit says, Lorenzana was told “she should not wear classic high-heeled business shoes, as this purportedly drew attention to her body in a manner that was upsetting to her easily distracted male managers.” She says the managers told her to buy a looser-fitting wardrobe, but Lorenzana claims that she did not have enough money to replace all of her work clothes.

Lorenzana complained to Citibank’s human resources department, but she says that only made things worse. Management, she claims, retaliated against her for complaining.

Citibank says that the firing was based on poor performance, but Lorenzana claims that when the company fired her, they never mentioned her performance.

Lorenzana’s lawsuit is based on two claims: (1) that Citibank management created a sexually hostile environment by focusing on, and criticizing, her clothes; and (2) that the bank retaliated against her when she complained. Unfortunately for Lorenzana, her case will not be heard by a jury. As a condition of her employment she signed an arbitration agreement so the case will go through binding arbitration rather than a jury trial.

http://www.villagevoice.com/2010-06-01/news/is-this-woman-too-hot-to-work-in-a-bank/1

VIDEO SURVEILLANCE

Administrator — Wed, 16 Jun 2010 23:11:15 +0000

Anyone reading the news online should know that video surveillance, whether in the form of security cameras, traffic cameras, or amateur videographers, is becoming ever more common in our society. Because you are more likely than ever to be on camera whenever you leave your house, it is important to be aware of that fact, and aware of how video surveillance can either help you or hurt you if you are involved in an incident with potential legal consequences.

A couple of recent news stories illustrate with clarity what can happen when you forget – or in the case of North Carolina Congressman Bob Etheridge, simply ignore – that you may be on videotape. Congressman Etheridge was captured on amateur video (from two different perspectives) assaulting a student who attempted to ask him questions on a Washington D.C. sidewalk. The video can be seen here: http://www.youtube.com/watch?v=_oqIP9yagkQ. It is not hard to imagine such evidence being compelling in a lawsuit.

Another example of amateur video shows a violent encounter between a resisting suspect and a Seattle Police Officer:

“”>http://www.king5.com/news/Video-tape-shows-SPD-officer-punching-young-woman-96352669.html

The video captures both the suspect and her friend attempting to resist the police officer’s attempt at taking the suspect into custody, and the officer’s subsequent use of “decisive” force against the friend. Again, it is obvious that this type of video footage would have a powerful impact – probably for both sides of the dispute – in court.

What does this mean for a typical New Hampshire citizen? While surveillance cameras are probably not yet as commonplace in the Granite State as in some of the larger metropolitan areas, they are becoming more common. At least a few cities in New Hampshire have installed traffic cameras, and they are routinely in and around private businesses. In addition, everyday citizens frequently carry video-capable electronic devices such as cell phones. This means your chances of being caught on film at the “moment of truth” are greater than ever, and increasing every day. It is certainly not an exaggeration to say that you should probably assume you are on film, and act accordingly, whenever you are out in public.

It is also important to remember that if you are involved in a personal injury situation, or any situation where litigation is a possibility, that evidence important to your case may be on video. That rule applies whether you are the one making the claim or the one defending against it. It is entirely possible that your car accident was captured on a traffic camera, or on the outdoor surveillance camera of a nearby business. It is just as likely that your slip and fall was captured by a camera within a business or a camera watching the parking lot.

Therefore, if you have the misfortune of being involved in an situation that might give rise to legal claims, try to remember to look around for possible sources of video evidence. When you talk to your lawyer, be sure to fill the lawyer in on any surrounding businesses or witnesses who might have video involving your case. The fact that surveillance camera videos often record over the previous day’s coverage is another reason to seek out an experienced attorney as soon as possible. An experienced attorney will recognize the value of such evidence at trial or mediation of your claim and will know how to obtain and preserve such evidence so that it can be to use on your behalf. Don’t be surprised when your lawyer asks you what businesses were in the area of your incident. If he or she is doing their job properly, they are looking for important evidence that too many people take for granted, but that an experienced trial attorney will use for your benefit.

SEXED BASED BULLYING IS PROHIBITED BY FEDERAL LAW

Administrator — Thu, 10 Jun 2010 21:01:20 +0000

This is a follow-up to our earlier article about school bullying. In some cases, bullying can go beyond the threats, taunts, and physical rough-housing, and take on sexually-motivated undertones. In cases where student-on-student harassment involves sex-based conduct, whether it is verbal or physical, and a school fails to put a stop to it after learning of it, the school may face civil liability under federal law.

Title IX of the U.S. Code, prohibits sex discrimination in “any education program or activity receiving Federal financial assistance.” Virtually all public schools receive federal funding of some type today, so they are generally bound by Title IX’s anti-discrimination requirement. Under Title IX, schools have a duty to prevent sex-based harassment of students once the school’s officials are notified of it. Failure to put a stop to sex-based bullying can result in significant financial liability for offending schools.

In a recent case in Michigan, a federal court jury awarded a bullied student $800,000 under the provisions of Title IX. The student in that case was subjected to four years of sexually-tinged bullying, including incidents in which he was subjected to repeated sexually-motivated insults, and one incident in which a naked bully rubbed himself against the victim in a locker room. School officials were aware of the problem, but were uncoordinated and ineffective in protecting the victim from his tormentors.

Title IX provides for a powerful remedy, in addition to state law civil liability, in those bullying cases where school officials are unwilling or ineffective in preventing sexually-charged bullying by students.

EVEN LONG-TERM MARRIAGES UNDER PRESSURE

Administrator — Thu, 10 Jun 2010 20:09:09 +0000

The recent divorce plans for Al & Tipper Gore after over 40 years of marriage reflect the fact that even long-term marriages can end up in divorce.

There are multiple sources of pressure in long-term marriage and one such stressor that can create later-in-life breakups are tensions related to adult children. Often one spouse gets overly involved with the adult children and worries about their happiness and economics while the other spouse may be at the stage of saying, “I’ve done my parenting I want to have my own life now. Let the kids figure it out.”

Other pressures can arise sometimes when people in their 60’s decide to do a career change or a location change. This can put stress on a long-term marriage that was used to the old relationship based on a prior job or location.

Statistically, folks are living longer and they are healthier but some couples become bored with each other after a few decades. The focus in their marriage moves from raising the children to an empty nest. When the kids leave, cracks in the long-term partnership may widen. This requires the couple to refocus on their relationship as being spouses, not just being parents.

The bottom line is that you can’t take your marriage for granted just because you’ve made it to 40 years of marriage you may if you want to make it to 60 years.

CAN MARRIAGE COST YOU A JOB?

Administrator — Tue, 25 May 2010 19:41:47 +0000

LeAnn Taylor was a receptionist at a cabinet making company who married the president of the company. When the business began performing poorly, the parent company’s CEO terminated several employees, including Ms. Taylor and her husband.

She sued for marital status discrimination, alleging that the CEO said “it would probably be awkward” for her to stay since her husband was leaving, and that her position was eliminated because she would probably have to relocate with her husband.

A Minnesota trial court said she didn’t show that her firing was directed at her marital status but the appeals court said her suit could go forward:

“Our legislature defined ‘marital status’ to expressly include the ‘identity, situation, [and] actions’ of an employee’s spouse. We are bound to apply this clear expression of legislative intent. We conclude that the district court erred in dismissing [the plaintiff]’s claim on the ground that it did not represent a direct attack on the institution of marriage. …

“By its clear terms, [the Minnesota law] prohibits an employer from discriminating against an employee based on the … situation of the employee’s spouse. The crux of [plaintiff’s] claim is that [the employer] terminated her based on the identity and situation of her spouse, a co-employee whose forced resignation was occurring at the same time. This claim falls squarely within the statutory definition of ‘marital status,’” the court held.

Similarly, under New Hampshire law, it is an unlawful discriminatory practice for an employer, because of “marital status,” to refuse to hire or employ or discharge from employment.