By Jason R.L. Major – New Hampshire Civil Litigation Attorney

A lot of clients we represent at Douglas, Leonard & Garvey involve claims against municipalities. Many of the claims are employment-related, and many are related to police misconduct. Litigating against government defendants involves challenges that do not arise in more difficult than making a claim against a private organization, because towns and cities and their officials are shrouded in many layers of immunities from suit. The included so-called “official immunity,” “discretionary function immunity,” “qualified immunity,” “ ” and others.

Recently, municipalities have been asserting a claim for immunity under RSA 507-B. RSA 507-B is a statute that was enacted to regulate claims against municipalities. It was enacted in the wake of a 1974 N.H. Supreme Court case captioned Merrill v. Manchester. In the Merrill case, the Supreme Court struck down “blanket” immunities protecting municipalities that had their roots in the old concept of “sovereign immunity” – literally that “the king could do no wrong.” However, the Court allowed the State Legislature to enact reasonable limitations on suits against municipalities, including damages caps. RSA 507-B was the Legislature’s attempt to put the Court’s “reasonable limitations” into practice.

Unfortunately, RSA 507-B contains some poorly worded sections that, when read together, could be read as prohibiting any claims that were not based on a municipality’s use or maintenance of its vehicles or premises. Of course, if the statute were read that way, it would lead to the unreasonable sort of “blanket” immunity that was struck down by the Supreme Court in Merrill. Nevertheless, municipal defendants have seized upon the confusing language of the statute in an attempt to shield themselves from liability.

Plaintiffs with claims against the municipalities have recently turned the tables though. In a recent decision from the U.S. District Court for the District of New Hampshire, captioned John Farrelly v. City of Concord, et al., Magistrate Judge Landya McCafferty ruled that the defendant’s “blanket immunity” interpretation of RSA 507-B was wrong, and held that the City defendants did not have immunity from suit under this section. The defendants in that case have requested that the District Court certify a question to the New Hampshire Supreme Court asking whether the District Court’s interpretation of the statute is correct.

In another case before the U.S. District Court for the District of New Hampshire, Huckins v. McSweeney, et al., Judge Joseph DeClerico has decided to certify to the New Hampshire Supreme Court the question of whether the Town of Sanborton’s “blanket immunity” interpretation of RSA 507-B is constitutional. The plaintiff in this case is represented by Douglas, Leonard & Garvey, P.C. We are confident that the Supreme Court will uphold its decision in Merrill v. Manchester and rule that the defendant’s interpretation of RSA 507-B is incorrect and, even if the statute could literally be interpreted as the defendants wish, that doing so would lead to an unconstitutional result.

This is good news for plaintiffs with claims against municipalities. In a few months there will likely be one less immunity hurdle to overcome in order to successfully obtain recoveries in their cases.

If you think you have a case against a municipality, please 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 civil litigation lawyers may be able to help you.

By Charles G. Douglas – New Hampshire Employment Law Attorney

With the changing demographic nature of our nation’s population, it was inevitable that at some point a white employee would be able to claim harassment because of her race. In a case earlier in September this year the United States Equal Employment Opportunity Commission announced a settlement by a former assistant prosecuting attorney in Hawaii who claimed she was discriminated against because she was white.

The prosecutor, Ms. Weigel, had worked on the island of Kauai in an office where her supervisor continually made disparaging comments that Weigel needed to “assimilate into the local culture.” She was told to dump her white boyfriend in favor of a local man.

The supervisor would talk about how staff who were white had to stop acting the “haole” way and act more like the local Hawaiians. The workplace harassment rose to such a level that the tension between Ms. Weigel and her boyfriend caused them to break up and she ended up moving back to the mainland.

The County agreed to compensate her $120,000 and to establish policies and training to make sure that whites would not be subjected to harassment.

The discrimination laws cut in both directions and it is obvious that as workforce populations change, racial discrimination victims may change with it. We represent employees of all types who are discriminated against in the workplace. If you feel you have been discriminated against, please contact one of our employment attorneys at 1-800-240-1988 or complete our online contact form.

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.

An employee’s ability to obtain workers’ compensation benefits for a disabling work injury often depends on the content of the employee’s medical records. If you neglect to tell your doctor that you were hurt at work, this innocent oversight could prove fatal to your workers’ compensation claim.

Doctors generally prepare detailed records of their visits with their patients. These records describe, among other things, the patient’s symptoms and the circumstances under which the patient states the injury occurred. If the employee states that the injury occurred at work, the doctor should note this in the patient’s records and should complete a New Hampshire Workers’ Compensation Medical Form. If the patient neglects to tell the doctor that the injury occurred at work, the medical record will contain no evidence of the work-related nature of the injury, and no New Hampshire Workers’ Compensation Medical Form will get completed.

The lack of any reference in the medical records to an employee’s injury having occurred at work can result in the employee being denied workers’ compensation benefits. In a recent New Hampshire Department of Labor decision, a hearing officer determined that an employee had failed to meet his burden to prove by competent medical evidence that his injury was work-related. The hearing officer therefore denied the employee workers’ compensation benefits. In that case, the medical records described the injury, but the records failed to note that the injury occurred at work.

Do not fall into this trap. Just be sure to tell your doctor that your injury happened at work. Ask your doctor to make sure to state that the injury occurred at work in the medical records. If your doctor does not complete a New Hampshire Workers’ Compensation Medical Form, remind him or her to do so.

If you need assistance with your New Hampshire workers’ compensation claim, contact an experienced New Hampshire workers’ compensation attorney at Douglas, Leonard & Garvey, P.C. or fill out our online contact form.

As a general rule, employers must pay employees an hourly rate and must pay employees at a rate one-and-one-half times their hourly rate for hours worked in excess of forty (40) hours per week. An employer may only avoid the obligation to pay overtime compensation, and pay an employee a straight salary for a week’s worked regardless of how many hours the employee works in the week, if the employer proves that the employee is exempt. Although many exemptions exist, there are three (3) primary categories of exemptions: the professional exemption, the executive exemption, and the administrative exemption.

To prove that any of the exemptions applies, the employer must prove that it regularly pays the employee a salary of at least $455.00 per week.

The professional exemption applies to learned professionals such as lawyers, doctors and accountants. The executive exemption applies to employees who manage the enterprise, who customarily and regularly direct the work of at least two (2) or more other full-time employees, and who have the authority to hire or fire other employees.

The administrative exemption applies to employees whose primary duties include: a.) the performance of office work directly related to the management or general business operations of the employer or the employer’s customers; and b.) the exercise of discretion and independent judgment with respect to matters of significance.

Of these exemptions, employers most often abuse the executive and administrative exemptions, doing such things as misclassifying employees in the executive exemption when the employees have no authority to hire or fire, or misclassifying employees in the administrative exemption when their primary duties do not involve the exercise of any discretion and independent judgment with respect to matters of significance.

The employer bears the burden to prove that an exemption applies to any given employee.

Misclassified employees may bring suit under the Fair Labor Standards Act to recover the unpaid overtime compensation that they should have been paid if their employers had not wrongly classified them as exempt. Employees may also recover other damages through such lawsuits such as liquidated damages and attorney’s fees.

If you believe you are or have been a misclassified employee, you should contact the experienced New Hampshire employment attorneys at Douglas, Leonard & Garvey, P.C. or complete our online contact form.

By Chuck Douglas – New Hampshire Sexual Harassment Lawyer

The law makes a distinction between sexual harassment by co-workers and sexual harassment by a supervisor. A company that has a supervisor who is sexually harassing an employee is strictly liable for the supervisor’s conduct. That is not the case if the harasser is only a co-worker.

The gray areas involve co-workers who have titles or job responsibilities where they can change your hours, assignments or duties but can’t hire or fire you. Everyone agrees a person who can hire and fire an employee is a supervisor, but once you get beyond that, the various Federal Circuit Appeals Courts are in disagreement.

That question will be answered because the United States Supreme Court has accepted a case from the 7th Circuit Court of Appeals in the mid-west to consider exactly what the term “supervisor” includes or doesn’t include in the work place. Because this is an uncertain area of the law, you need to contact a firm who represents employees and, therefore, understands the various ins and outs of the court decisions that may be relevant to your case. We represent employees in sexual harassment cases and recently successfully mediated a case against a major employer that argued that the supervisor was not a supervisor but merely a co-worker.

If you think you have been sexually harassed, please call our office at 1-800-240-1988 or fill out our online contact form.