Since much of the news these days seems dominated by reports of layoffs and firings, most of them ending up in court, I thought I’d give you a refresher in employment law, at least as it’s practiced in New Hampshire. I don’t know enough about the laws as they apply to federal employees, especially when there are efforts to dismantle entire agencies (which brings into play questions of constitutional restrictions and Congressional power), but I trust and hope that lawyers and judges much smarter than I will eventually bring some clarity and sanity to Washington.
In advising clients on the protections employees have under New Hampshire law, I always start with the warning that we are an “at will” state; the general rule is an employer can fire an employee for any reason, or no reason at all, even if it seems arbitrary and unfair. The main exception, of course, is if the employee is covered by a union contract. Because that has its own set of rules depending on the contract language, I will only discuss the more common case of a non-union employee.
The second point of guidance I provide for a client who has been fired is that they should immediately file for unemployment benefits. There are two reasons for this. The most important is to get some financial protection, and the second is that the Department of Employment Security will ask the employer the reason for the firing, and the answer will help me evaluate whether there may be a basis for legal action.
If the employer gives no answer, benefits are allowed, but if the employer gives an answer, which the employee tells me is not true, we can request a hearing to explore the employer’s evidence. While we don’t get the full scope of discovery that we would in a court case, we can at least get a preliminary idea of who the employer’s witnesses are and what records exist to support their position.
The most frequent scenario is where the employer has claimed misconduct as the reason for the firing. This is sometimes used as a cover or “pretext” for the real reason, which may be illegal. The three reasons the firing of an “at will” employee may be illegal are that it violates a state or federal anti-discrimination law, that it is in retaliation for a “whistleblower” complaint based on a state or federal whistleblower statute, or that it is a “common law” (i.e. judge-created) wrongful discharge because the employer violated a public policy and acted in bad faith.
The three types of claims may overlap. For example, an employee who is fired because of her age may have also refused to fire another employee because of that person’s age and then reported having been asked to do that to a government agency because she believed it to be illegal. The public policy being enforced by a lawsuit is that our society believes in encouraging older workers to stay employed, but federal law also prohibits age discrimination-if that is the reason for the firing, which is always hard to prove-and whistleblower laws encourage people to report actions they reasonably believe to be illegal.
In a scenario like this, lawyers representing the employer will argue that only one type of claim can be pursued, but the courts have generally refused to make an employee choose.
Although I have not given clearcut guidelines as to when you might have a wrongful termination claim, I hope I have helped you understand some questions to ask and, most importantly, know that you should seek legal advice early. Anti-discrimination based claims need to start with a complaint to the New Hampshire Human Rights Commission within six months of the firing, and other claims need to be brought as early as two years from the event.
You should also know that even if you are not fired, claims can be based on other types of “adverse events” such as harassment, failure to promote, pay cuts, job relocations, and the like.
With economic uncertainty, expect to see lawyers and courts busy reviewing these types of claims, and perhaps legislative action further limiting arbitrary and unfair actions by employers
