Posts Tagged ‘employment law’
Friday, December 28th, 2012
By C. Kevin Leonard – New Hampshire Employment Attorney
How would you answer if you were asked is it illegal for an employer to fire a female employee who has engaged in no wrongdoing but the boss views the employee as an irresistible attraction? Well, most of you are probably wrong but the Iowa Supreme Court recently upheld the legality of terminating a female employee because he found her too attractive.
In Nelson v. Knight, Iowa dentist James Knight fired his dental assistant, Melissa Nelson, after 10 years of employment. He stated she was his best employee. Nelson was fired not because she did anything wrong but because Knight’s wife viewed her as a threat to her marriage. While the Court stated Nelson’s firing was “unfair” and raises concerns about a “slippery slope,” it ruled that Knight did not terminate Nelson based upon her protected status – gender.
The Iowa Court stated that Title VII is not a general fairness law. In other words, a termination may be unfair but not illegal unless the employer engages in discrimination based upon an employee’s protected status.
It was undisputed that the employer’s wife requested him to terminate his assistant and the employer feared he would try to have an affair with her down the road if he did not fire her. The case is disturbing because it seems that the female employee was viewed as a threat because she was a woman.
If you believe you are the subject of employment discrimination or other adverse employment action, you should consult an experienced employment attorney such as one of the attorneys at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online contact form.
Tags: Concord New Hampshire attorney, Concord New Hampshire lawyer, concord nh employment lawyer, concord nh lawyer, douglas leonard and garvey, employment law, Title VII
Posted in Blog, Discrimination, Employment Law | Comments Off
Thursday, December 6th, 2012
By Benjamin T. King – New Hampshire Employment Attorney
What does your employer do with any “write-ups” your employer may give you? Generally, the employer places write-ups in your personnel file. Your personnel file is a file that the employer maintains containing documents relating to your employment. The personnel file may contain documents such as your employment application, benefits information, performance reviews and documentation of any verbal or written warning, reprimands or counseling you may have received.
You are entitled to inspect and/or copy your personnel file. If you want to do so, you should make a request of your employer. If your employer says you cannot, you should know that New Hampshire law says differently. R.S.A. 275:56 states that “every employer shall provide a reasonable opportunity for any employee who so requests to inspect such employee’s personnel file and further, upon request, provide such employee with a copy of all or part of such file.” “An employer may only charge the employee a fee reasonably related to the cost of supplying the requested documents,” the statute goes on to say.
Furthermore, if you disagree with any of the information contained in your personnel file, and you and your employer cannot agree on the removal or correction of such information, RSA 275:56 states that you may prepare a written statement disputing the contested information. The employer must include your statement in your file.
Personnel files almost always come into play in wrongful discharge and employment discrimination cases. If you believe you may have been wrongfully fired, or you believe you have suffered employment discrimination, you should consult an experienced employment attorney such as one of the attorneys at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online contact form.
Tags: Concord New Hampshire attorney, Concord New Hampshire lawyer, concord nh employment lawyer, discrimination, Douglas Leonard & Garvey, employment law, new hampshire employment law, personnel file, RSA 275:56, wrongful discharge
Posted in Blog, Discrimination, Employment Law, Wrongful Termination | Comments Off
Tuesday, December 4th, 2012
By Jason R.L. Major – New Hampshire Employment Lawyer
So what rights do you have as an “at-will” employee, if your boss can terminate you arbitrarily for no reason at all? Even at-will employees are protected by certain exceptions to the “at-will” rule, and also by specific State and Federal employment statutes.
The primary exception to the “at-will” rule under State law is the legal concept of “wrongful termination.” It is important to understand that “wrongful termination” does not equal “unfair termination.” It is a legal claim with a very specific set of elements that must be proved: You have to show that you were (a) terminated (b) in bad faith, for (c) performing an act that public policy would encourage, or refusing to perform an act that public policy would condemn. In other words, you have to show that you took a stand on something important, like safety, health, or illegal conduct, and that your employer fired you because of it.
Statutory exceptions to the “at-will” employment rule under New Hampshire law include the Whistleblower’s Protection Act (which works similarly to the concept of “wrongful termination,” but requires you to report unlawful conduct by your employer to have a claim), and the N.H. Human Rights Act, which prohibits discrimination against certain protected categories of employees (i.e., gender, age, race, religion, sexual orientation, and disability).
Under Federal law, employees may not be terminated due to unlawful discrimination on the basis of race, gender, age, disability, or exercise of their rights under the Family Medical Leave Act (FMLA).
If you believe you are the victim of wrongful termination, you should consult an experienced employment attorney such as one of the attorneys at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online contact form.
Tags: at will employee, bad faith, Concord New Hampshire attorney, Concord New Hampshire lawyer, concord nh employment attorney, concord nh employment lawyer, employment law, Family Medical Leave Act, FMLA, Whistleblower, Whistleblower Protection Act, wrongful termination
Posted in Blog, Civil Rights, Employment Law, Wrongful Termination | Comments Off
Monday, December 3rd, 2012
By Jason R.L. Major – New Hampshire Employment Lawyer
We commonly get calls from upset employees who are unsure what it means to be an “at-will.” employee. These employees are often downright distraught when they find out, after being terminated, exactly what it means to be “employed at-will.” Simply put, if you are an “at-will” employee, you can be fired at any time, for any reason (except for a few narrowly-defined exceptions that have been deemed illegal for public policy reasons, which are discussed below).
This means that if your boss decides he simply doesn’t like you for any reason – the color of your hair, the way you laugh, the clothes you wear, etc., he can end your employment. These are extreme examples to show how harsh (and unfair) it seems. Even more surprising to many employees, it is completely legal for an employer to be “wrong” about the reason for your termination. He or she can falsely believe you don’t perform well, or that you violated workplace policy, and fire you for it, even if you have proof to the contrary. It comes as a shock to many employees that they can be legally fired for reasons that seem totally unfair.
Under New Hampshire law, you are generally presumed to be employed “at–will” unless you can show otherwise. To show otherwise, you would have to prove you have an employment contract, or that you have a right to keep your job during “good behavior” or that you can only be terminated “for cause.” For most private employers, this would be a written contract or policy providing you with those rights. Certain State and municipal employees have a statutory right to keep their jobs unless their employer can show sufficient justification for terminating them.
However, most private employers are careful to make it clear in their written policies or handbooks, and other employment-related documents that you are employed at will. It would be your time to check any employment manual or policy handbook you were given upon being hired to see what it says about “at-will” employment. Language saying that the handbook or manual should not be construed as providing you with any contractual rights or rights to contest a disciplinary or termination decision mean you are employed at will.
It is likely that your employment manual will say you can be fired at any time, without cause. Even if the manual or handbook does not use the term “at-will,” statements that you can be fired without good cause or “for any reason” are indications that your employment is “at-will.”
In the rare instance your employment is governed by written policies that require “good cause” or some other objective standard to be met before you can be terminated, without qualifying your employment at “at-will,” you may be entitled to rely on such a policy, and have a right to fight arbitrary terminations.
If you have an employment contract which requires you to work a specified span of time, you may not be an “at-will” employee. There are different protections for a “contract employee,” including not being legally terminated so long as you perform your obligations under the contract in good faith. The key factor with determining whether you are a “contract” employee is whether the contract specifies a certain length of time or term for your employment. If it is open-ended, you are probably an “at-will” employee. This is why it is essential to consult with an attorney if you are negotiating an employment contract – a misstep can result in a “contract” that is little more than an illusion, and does not protect your right to continued employment.
If you believe you are the victim of wrongful termination, you should consult an experienced employment attorney such as one of the attorneys at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online contact form.
Tags: Concord New Hampshire attorney, Concord New Hampshire lawyer, concord nh employment attorney, concord nh employment lawyer, douglas leonard and garvey, employment law, new hampshire employment law, wrongful termination
Posted in Blog, Employment Law | Comments Off
Tuesday, November 20th, 2012
By C. Kevin Leonard – New Hampshire Employment Attorney
Recently, the U.S. Equal Employment Opportunity Commission issued its enforcement guidance on an employer’s use of arrest and criminal records: Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
There are two ways in which an employer’s use of criminal history information may violate Title VII of the Civil Rights Act of 1964. First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin (“disparate treatment discrimination”). Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.
Title VII does not prohibit employers from obtaining criminal background reports about job applicants or employees. Title VII does not regulate the acquisition of criminal history information. However, another federal law, the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (FCRA), does establish several procedures for employers to follow when they obtain criminal history information from third-party consumer reporting agencies. In addition, some state laws provide protections to individuals related to criminal history inquiries by employers.
In its Guidance, the Commission considered several things:
• The fact of an arrest does not establish that criminal conduct has occurred. Arrest records are not probative of criminal conduct. However, an employer may act based on evidence of conduct that disqualifies an individual for a particular position.
• Convictions are considered reliable evidence that the underlying criminal conduct occurred.
• A policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law.
If you believe you are the victim of wrongful employment action, you should consult an experienced Concord employment lawyer such as one of the attorneys at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online contact form.
Tags: Concord New Hampshire attorney, Concord New Hampshire lawyer, concord nh attorney, concord nh employment lawyer, criminal background check, EEOC, employment law, Fair Credit Reporting Act, New Hampshire law, Title VII, wrongful employment
Posted in Blog, Employment Law | Comments Off
Tuesday, October 9th, 2012
By Jason R.L. Major – New Hampshire Employment Lawyer
Plaintiffs who receive awards of either front pay or back pay through a Title VII claim will find that those awards are subject to income tax withholding. A recent decision from the United States Court of Appeals for the Second Circuit ruled that such awards may have taxes withheld from them, because they effectively constitute “Wages” within the meaning of the Internal Revenue Code.
In the case of Noel v. New York State Office of Mental Health, the Court of Appeals stated that:
Both the back and front pay [awards to the plaintiff] were calculated with express reference to his employment relationship with the state and to all the wages and benefits that would have accrued absent the state’s unlawful discrimination. These amounts are “wages” because the constitute “remuneration” for services during an employee-employer relationship.”
The Court also noted that had the wages been earned in the course of employment, as opposed to being awarded as the result of a lawsuit, there would be no question that the same wages would be subject to withholding. The Court concluded that “[w]e believe that this result is not changed because [the plaintiff] had to obtain a judgment to secure the wages….”
If you need assistance with a wage claim, contact Douglas, Leonard & Garvey, P.C. at 1-800-240-1988 or fill out our online contact form to see if one of our experienced employment lawyers may be able to help you.
Tags: back pay, Concord New Hampshire attorney, Concord New Hampshire lawyer, concord nh wage claim attorney, Douglas Leonard & Garvey, employment law, front pay, income taxation, lost wages, new hampshire employment law, Title VII, wages
Posted in Blog, Employment Law | Comments Off
Monday, August 20th, 2012
Two employees worked for a firm in Southern New Hampshire. They had had a written contract that provided a certain percentage for commissions. For three different quarters in a year the percentage they were supposed to have been paid was reduced by $30,000 each quarter and then in the 4th quarter by $35,000. The employees objected to the modification of their commission from 40% to a lower number and the change was never reduced to writing. The employer argued that because the employees did not quit, they must have accepted his modified deal, however, the Department of Labor held that although an employee can leave a t any time, they should not be forced out by changing the conditions in their wage package without having it in writing signed by the employee. Each employee was awarded $125,000 by the New Hampshire Department of Labor.
If you are having problems with an employee contract, please contact us at 1-800-240-1988 or fill out our online contact form to see if we can help.
Tags: Concord New Hampshire attorney, Concord New Hampshire lawyer, concord nh employment attorney, concord nh employment lawyer, employment law, nh employment lawyer
Posted in Blog, Employment Law | Comments Off
Friday, May 25th, 2012
After a two week trial, Attorneys Chuck Douglas and Kevin Leonard obtained a $1.5 million jury award for our client, James Conrad, a former New Hampshire State Trooper, against his former employer, Division of State Police, along with a supervisor. READ MORE
Tags: civil rights, Concord New Hampshire attorney, Concord New Hampshire lawyer, employment law, false imprisonment, new hampshire employment law
Posted in Blog, Civil Rights | Comments Off
Monday, April 9th, 2012
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.
Tags: Concord New Hampshire attorney, Concord New Hampshire lawyer, concord nh employment attorney, concord nh employment lawyer, douglas leonard and garvey, employment law, New Hampshire law, nh employment attorney
Posted in Blog, Employment Law, Pregnancy | Comments Off
Thursday, November 3rd, 2011
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.
Tags: concord nh employment attorney, concord nh employment lawyer, Douglas Leonard & Garvey, employment discrimination, employment law, New Hampshire law, soldiers, USERRA
Posted in Blog, Discrimination, Employment Law | Comments Off
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