Posts Tagged ‘new hampshire employment law’
Tuesday, January 29th, 2013
By Benjamin T. King – New Hampshire Employment Lawyer
A new U.S. Department of Labor (DOL) Administrator’s Interpretation
has been issued to clarify who qualifies as an adult “son or daughter” whom an employee may take unpaid leave from work to care for and enjoy the job protections of the Family and Medical Leave Act (FMLA). An employee may qualify for twelve (12) weeks unpaid leave under the FMLA to care for an immediate family member with a serious health condition if the employee has worked for the employer at least 1,250 hours in the past year and if the employer has at least 50 employees.
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
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
Monday, November 26th, 2012
By C. Kevin Leonard – New Hampshire Employment Attorney
It seems there are a lot of new stories about sexual harassment claims. Just what is sexual harassment?
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964
. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government. Before an employee can pursue a claim for sexual harassment in court, a charge of discrimination first needs to be filed at the Equal Employment Opportunity Commission
or the New Hampshire Commission for Human Rights
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
The harasser’s conduct must be unwelcome.
It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.
If you believe you are a victim of sexual harassment in your workplace, you need an experienced employment attorney or Concord sexual harassment lawyer to help you. You should consult one of the employment lawyers at Douglas, Leonard & Garvey, P.C. by calling us at 1-800-240-1988 or fill out our online contact form.
Thursday, October 25th, 2012
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.
Wednesday, October 10th, 2012
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.
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.
Wednesday, October 3rd, 2012
By Benjamin T. King
– New Hampshire Workers’ Compensation Lawyer
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.
Tuesday, October 2nd, 2012
By Benjamin T. King
– New Hampshire Employment Lawyer
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.
Monday, October 1st, 2012
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.