Employment / Wrongful Termination
Nixon, Vogelman, Barry, Slawsky, and Simoneau, P.A. represents employees in all types of disputes with their employers. We handle wrongful discharge and discrimination claims, and negotiate employee’s severance packages with employers.
New Hampshire workers do have rights!
As times change, the rights of employees at the work place are gaining increased protection by state and federal governments, and by the Courts. Among the best known changes are the “Family And Medical Leave Act,” which requires covered employers to provide up to 12 weeks of leave per year to a qualified employee due to birth of a child, having a family member with a severe medical condition, or being sick or disabled himself or herself.
The “Americans With Disabilities Act” prohibits discrimination against employees with disabilities; and requires employers to make “reasonable accommodations” for employees and applicants with disabilities.
Federal age discrimination legislation prohibits age discrimination against persons age 40 or over.
New Hampshire state laws also prohibit employers from firing employees after work-related injuries under certain circumstances.
The “Fair Labor Standards Act” and the State minimum wage and overtime laws require payment at time and one half for hours worked in excess of 40 hours per week under most circumstances. Important and constantly changing new laws also afford employees with important rights to continue medical insurance coverage under certain circumstances after employment is terminated, and also protect employees from “wrongful discharge.” In addition, employees may pursue contractual rights due to obligations assumed by employers through company handbooks or written policies and procedures.
It’s important to know your rights as a New Hampshire worker. If you have a question about your rights, you should consult your family lawyer. Under some circumstances, the New Hampshire Department of Labor may also be able to assist you in explaining workers’ rights, and in enforcing those rights.
We received the packet and the letters in the mail. The 'Answer' was extraordinary. We just wanted to take the time to thank you for what you are doing. Please let us know if there is anything we can do to make your work easier. Happy New Year.
I want you to know how much I appreciate you making the time to take my case and for helping me so much. There aren't adequate words to let you know how much this has meand to me. What you do really makes a difference. Gratefully, L.B.
- Can I be fired for something I didn’t do?
We sometimes see situations where an employee was fired because they were blamed for something someone else did, or because the employer believed the employee did something wrong at work, even though the employee didn’t do it.
As unfair as this may be, it is not illegal. An employer can fire an employee it suspects of doing something wrong (examples include theft, alcohol or drug use at work, violating company policy, or an employee who has been accused of harassment or discrimination), even if the allegations are not true.
These circumstances may be evidence of illegal discrimination or wrongful termination If the allegations are manufactured as a pretext for firing the employee for an illegal reason, or if other employees were not fired under the same circumstances.
- Can my employer fire me because I missed work due to an illness?
That depends on the extent and nature of your illness. Unless you have requested or are already approved to take unpaid time off under the Family Medical Leave Act (FMLA) and have not used all of the 12 week per year leave time, or have been granted an accommodation to attend doctor appointments under the Americans with Disabilities Act (ADA), generally it is not illegal for an employer to fire you for absence due to illness.
- How much money can I expect to get when my case is over?
First, you should run away from any lawyer who tries to answer this question before he or she has built your case into the best it can be. No lawyer can, even after meeting with you for that free, initial consulation, tell how much your case is worth. Yes, there are factors that drive most every case; how much are your medical bills or lost earnings, how bad are your injuries, did you require pyschological treatment and many others. But, there is a lot more to determining the value of any legal claim.
There are two key factors many people overlook. Nice plaintiffs, that is the people suing, can do better than others. In fact, a nice plaintiff, someone a jury will like, can turn a bad case into a good one. This is true in reverse. A likeable defendant will result in a lower verdict. As a well regarded New Hampshire Judge recently said, we can't determine the value until we "eyeball" the parties.
If you want a lawyer who will promise you a fortune to get your case, this firm isn't for you. If you want lawyers with the experience and skill necessary to accurately "eyeball" the parties, including being honest about your jury appeal, contact us below.
- I don’t have a written employment contract. Does that mean my employer can fire me without any reason?
Yes. Most employees do not have written employment contracts. We call that “employment at will.” In general, that means that you can be fired for any reason or no reason at all. But there are limits. Even if you don’t have a written employment contract, your employer cannot discriminate against you by firing you because of your age, race, color, nationality, gender or other protected category. In addition, there is a broader category of illegal terminations that fall into the category of wrongful discharge. To fit into that category, a discharge must be in violation of public policy and in bad faith. Three simple examples: (a) you are injured on the job and file a claim for workers’ compensation benefits; and (b) you are called to serve on jury duty. Your employer cannot fire you because you pursued your right to collect workers’ compensation benefits and they cannot fire you because you were required to do your civic duty and served on a jury. Beyond these common situations, we have had great success with more creative legal theories, particularly when an employer retaliates by firing an employee who objects to bad employment practices. One example of this kind of case is the nurse who gets fired because the refuses to attend a management meeting because she has to provide emergent care for a patient. We see many situations in which employees are forced to choose between following a supervisor’s immediate order that contradicts safe practices. Wrongful termination claims usually are based on one of the following categories of "protected activities": (a) Terminations expressly prohibited by statute; (b) Terminations where the employee has exercised a constitutional or statutory right or privilege; (c) Terminations for refusing to engage in conduct that is unlawful; and (d) Terminations for reporting alleged unlawful conduct by the employer. This is sometimes called "whistleblowing." For more information, read our section on the subject.
- I was fired with no warning even though I never had a bad performance review. Is that legal?
If you are an at-will employee, your employer does not have an obligation to give you advance notice before firing you. Even if your employer has a written policy about progressive discipline (in other words, a verbal warning for the first infraction, a written warning for the second infraction, suspension or demotion for the third infraction, followed by termination for a fourth infraction), your employer can still fire you for any reason or no reason at all, subject to the public policy/bad faith and discrimination. The employer’s failure to follow the progressive discipline policy may be evidence of bad faith or discrimination.
- I'm getting unemployment benefits. Doesn't that mean that I was wrongfully terminated?
~~Probably not. The New Hampshire Department of Employment Security is the state agency responsible for enforcing New Hampshire RSA 282-A, the unemployment benefits law. As a general matter, you are entitled to receive those benefits unless you leave your job voluntarily without good cause or you are discharged for misconduct connected with your work. If your employer disputes your right to these benefits, hearings are held at the Department of Employment Security. The rules that apply to your right to unemployment benefits are different from the law of wrongful termination.
- What are my employment rights in New Hampshire?
For most of us, the most important things in our lives after our families are our jobs. But too often people are treated badly on the job, or fired for what seems an unfair reason. Unfortunately, the New Hampshire legislature has passed very few laws which protect workers from unfairness.
New Hampshire is what is called an "at will" state. This means that, unless you are a union member, or have an employment contract, you are an employee "at will" -- you can be fired at any time, for any reason. The exceptions are if you are discriminated against for a reason that is prohibited by Federal or State statute, such as sex, race, religion or age; or if you are fired in bad faith for a reason that violates "public policy." There is no fixed definition for "public policy," and most of the time it would be up to a jury to decide. But a lawyer with experience handling employment cases should be able to tell you whether your case is worth pursuing.
Therefore, if you believe you have been treated badly at work, you should not hesitate to speak with a lawyer; most lawyers will not charge you for telling you whether or not you may have case.