1. What legal protection does New Hampshire provide employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make “common law protections” or (2) the legislature, which enacts “statutory protections.” Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers’ compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to “fill the gaps” where no statute exists for a given situation.
Common Law Protections
New Hampshire recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates the public policy of New Hampshire. An employee has a cause of action in other words, the employee may sue for wrongful discharge when the motivation for the discharge violates public policy.
To determine what constitutes public policy, New Hampshire courts will look to statutes and constitutional provisions to determine if a given practice has been endorsed (e.g. the right to collect workers’ compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a New Hampshire statute endorses an employee’s right to collect workers’ compensation benefits, an employer who retaliates against an employee for invoking that right would likely be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening New Hampshire’s public policy. In both situations, employees are protected from retaliatory discharge.
In addition, New Hampshire’s legislature has adopted statutory protections for certain activities. Most notably, New Hampshire has a general whistleblower protections statute the Whistleblowers’ Protection Act (WPA). Also, several other New Hampshire statutes contain anti-retaliation provisions. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: asbestos management and control, child care licensing, crime victim employment leave, dog and horse racing employees, hazardous waste management, Medicaid fraud and false claims, occupational safety and health, toxic substances, and wage discrimination (equal pay).
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged in retaliation for performing a protected activity. An employee must show that he was discharged for either (1) performing an act that public policy would encourage, or (2) refusing to do something that public policy would condemn. In addition to this requirement, an employee must also show that the employer, in discharging the employee, was motivated by bad faith, malice, or retaliation.
For example, New Hampshire recognizes a public policy guaranteeing a safe workplace. An employee who takes action that promotes this policy will be protected from discharge. Other protected activities include:
- Exercising a legal right (such as exercising a right to file a lawsuit)
- Reporting violations of the law
Whistleblowers’ Protection Act: An employee may not be discharged (or discriminated against) in retaliation for the following activities:
- Reporting what the employee reasonably believes is a violation of a law or rule federal, state, or local. The report may be made either verbally or in writing. The report must be made in good faith. The employee’s suspicion that the employer is violating the law does not need to turn out to be true an employee is still protected if it turns out that the employer was not violating the law, so long as the employee’s suspicion was reasonable and in good faith.
- Participating in an investigation, hearing, or inquiry conducted by a government entity (including court actions) that concerns an employer’s suspected violation of a law or rule federal, state, or local. The employee’s participation must be performed in good faith.
However, there is an important caveat for employees who seek protection under this law: an employee must first inform a supervisor of the alleged violation and then allow the employer a reasonable opportunity to correct the violation. However, an exception to this requirement is made if the employee has specific reason to believe that informing the supervisor would not result in the prompt correction of the violation. N.H. Rev. Stat. Ann. § 275-E:2.
Also, an employee may not be discharged (or discriminated against) in retaliation for refusing to perform an illegal action, as directed by the employer. The source of the law may be federal, state, or local law. N.H. Rev. Stat. Ann. § 275-E:3.
Asbestos Management and Control: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, or instituting a proceeding concerning asbestos management and control laws. N.H. Rev. Stat. Ann. §141-E:19.
Child Care Licensing: A child-care employee may not be discharged (or discriminated against) in retaliation for reporting suspected violations of child care licensing laws. N.H. Rev. Stat. Ann. § 170-E:48.
Crime Victim Employment Leave: An employee who is the victim of a crime may not be discharged (or discriminated against) in retaliation for exercising his or her right to leave work, as specified in the Crime Victim Employment Leave Act. N.H. Rev. Stat. Ann. §§ 275:62(II), 275:64.
Dog and Horse Racing Employees: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, affidavit, or petition (or otherwise giving information or testimony) under the laws concerning dog and horse racing employees. N.H. Rev. Stat. Ann. § 273-C:6.
Hazardous Waste Management: An employee may not be discharged (or discriminated against) in retaliation for reporting a violation of hazardous waste management laws. N.H. Rev. Stat. Ann. § 147-A:12.
Medicaid Fraud and False Claims: An employee may not be discharged (or discriminated against) in retaliation for investigating, initiating, testifying in, or assisting in a proceeding concerning Medicaid fraud. N.H. Rev. Stat. Ann. § 167:61-c.
Occupational Safety and Health: An employee may not be discharged in retaliation for exercising a right concerning the safety and health of employees. N.H. Rev. Stat. Ann. § 277:35-a.
Public Employees: An employee may not be retaliated against for filing a complaint with the Public Employees Labor Relations Board. N.H. Rev. Stat. § 273:A-5.
Toxic Substances: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, or exercising a right concerning toxic substances in the workplace laws (also known as the “Worker’s Right to Know Act”). N.H. Rev. Stat. Ann. § 277-A:7.
Wage Discrimination (generally): An employee may not be retaliated against for disclosure of wages to another employee. N.H. Rev. Stat. Ann. § 275:38-A.
Wage Discrimination (Equal Pay): An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding concerning New Hampshire’s equal pay laws. Under these laws, an employer may not discriminate on the basis of sex in the payment of wages. An employer who retaliates for this reason is guilty of a misdemeanor. N.H. Rev. Stat. Ann. § 275:40.
3. How do I file a whistleblower or retaliation claim in New Hampshire?
Generally: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 3 years of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer. N.H. Rev. Stat. Ann. § 508:4.
Whistleblowers’ Protection Act: An employee is required to first make a “reasonable effort” to resolve the situation through the use of the employer’s internal grievance procedures. If an employee is unable to resolve the matter through that avenue or if an employer has no such post-termination procedures an employee may file a complaint with the New Hampshire Department of Labor
New Hampshire’s Department of Labor operates a whistleblower section on their web site. They provide a useful guide to the claim process, as well as a downloadable complaint form. If you file manually, two (2) copies of the completed complaint form should be mailed to the Department of Labor at the following address:
N.H. Department of Labor
P.O. Box 2076
Concord, NH 03302-2076
Occupational Safety and Health: An employee may file a complaint with the New Hampshire Department of Labor and request a review of the employer’s action. The Department will hold a hearing and may order reinstatement.
Toxic Substances: An employee may file a complaint with the New Hampshire Department of Labor. The complaint must be filed within 30 days of the retaliatory action. The Department will investigate and may refer the case to the attorney general for appropriate action. If you believe you have a claim, you should contact or visit the Department of Labor immediately at:
N.H. Department of Labor
State Office Park South
95 Pleasant Street
Concord, NH 03301
Phone: (603) 271-3176