Two recent New Hampshire courts reaffirm the right to bring a a constructive discharge claim under New Hampshire law.
In Jeffery v. City of Nashua, the New Hampshire Supreme Court held that to establish a constructive discharge, a plaintiff “must show that her employer rendered her working conditions so difficult and intolerable that a reasonable person would feel forced to resign.”
The next case was Gavin v. Liberty Mutual, decided by the United States District Court for the District of New Hampshire. The Court explained that a constructive discharge is an element of a wrongful termination claim.
In New Hampshire, to prevail on a claim for wrongful termination, or wrongful discharge, as the cause of action is also known, a plaintiff must establish that: (1) the termination was motivated by bad faith, retaliation or malice; and (2) that the employee was terminated for performing an act that public policy would encourage or for refusing to do something that public policy would condemn. So, the first prong focuses on the nature of the employer’s actions, while the public policy prong pertains to the employee’s acts.
If you believe you are the subject of wrongful termination or wrongful discharge, you should consult an experienced New Hampshire employment attorney at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online Contact Form.
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.
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.”
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.
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.