by Jon Meyer, Esq.

For many years the primary protection for New Hampshire employees against the employment at will doctrine, outside the anti-discrimination laws, was the common law doctrine of wrongful termination which was originated by the New Hampshire Supreme Court in the case of Monge v. BeeBee Rubber Co., 114 N.H. 130 (1974).
The parameters of that protection have not significantly changed since 2004 when the supreme court declared wrongful termination to be a tort. Porter v. City of Manchester, 151 N.H. 30. However, employment rights have been greatly strengthen by a series of legislative enactments and recent amendments, in particular RSA 275-E the Whistleblower Protection Act, and RSA 98-E the Public Employee Freedom of Expression Act, which as recently amended and strengthened have become vitally important in the protection of employment rights. In drafting a non-discrimination employment claim it is important to consider the possibility of bringing statutory as well as common law claims since in many instances they complement each other.
The most recent significant development in New Hampshire employment law was the amendments enacted by the Legislature in 2010 to the Whistleblower Protection Act. Session Law 340:1, originally introduced as Senate Bill 58, which became effective on July 20,2010. The original statute was enacted in 1987. It protects employees who in good faith make a report of what the employee reasonably believed to be a violation of any governmental rule or law. RSA 275-E:2. It also protects good faith employee participation in a governmental investigation regarding an alleged employer violation of the law. RSA 275-E:2. Finally, the law protects employees who
refuse to execute a directive which violated any governmental law or rule. RSA 275-E:3. It provides that the employee must first bring any alleged violation to the attention of a person having supervisory authority with the employer, and then allow the employer a reasonable opportunity to correct that violation unless the employee has a specific reason to believe that that would be futile. RSA 275-E:2 (II). It further requires an employee who believes that she or he has been subject to illegal retaliation to make a reasonable effort to protect his or her rights through any grievance procedure or similar process available at the employee's place of employment. RSA 275-E:4.
The New Hampshire Supreme Court has clarified that if an employee brings the suspected violation to the employer's attention, and is then fired before making an outside complaint about the alleged violation, the protection still applies. In RE: Fred Fuller Oil Co., Inc., 144 N.H.. 607 (2000).

Under the original statute, the only procedure available in case of violation was filing a complaint and having a hearing before the Department of Labor. RSA 275-E:4. Available types of relief included reinstatement, payment of back-pay, and lost benefits and other injunctive relief. The New Hampshire Supreme Court overruled the Department of Labor and held that the law authorized the Department to award attorney's fees. Appeal of Hardy, 154 N.H. 805 (2007).

SB 358 was motivated by the intent to strengthen the protection of whistleblower rights and to encourage reporting of government fraud and waste by public employees.
It went through a series of amendments including the removal of a provision that would have awarded a whistleblower complaining about government waste, a percentage of the funds that were saved by the complaint. The principal changes that were enacted are as follows:

I. An aggrieved employee can now bring a civil suit within three (3) years, RSA 275-E:2(II), without first filing a complaint with the Department of Labor. The court is authorized to order reinstatement and back-pay as well as reasonable attorney's fees and costs to the prevailing party. Although the statute refers to awarding attorney's fees to the "prevailing party", not just the prevailing plaintiff, the same language has been interpreted by the United States Supreme Court in the context of Title VII to mean that the employer can only receive attorney's fees if the claim is "frivolous, unreasonable, or without foundation...." "whereas a prevailing plaintiff ordinarily is to be awarded attorney's fees in all but special circumstances." Christianburg Garment Co. v. EEOC, 434 U.S. 412, 417, 421 (1978).
The Court pointed out that the prevailing plaintiff is differently situated from a prevailing defendant because a prevailing employee is vindicating a statutory policy, and a finding for the plaintiff means that the employer violated the law.

II. The amendments add protection to "the employee [who] objects to or refuses to participate in any activity the employee, in good faith, believes is a violation of the law." RSA 275-E:2(b). This overlaps with but is stronger than the protection contained in existing RSA 275-E:3 which only protected employees refusing to execute directives that were in fact illegal.

III. The statute also adds protection against employers who "harass, abuse, intimidate" an employee for reporting violations which supplements the existing protections against being discharged, threatened or discriminated against in the terms of employment. RSA 275-E:2(a). The statutory coverage for harassment and other types of discrimination short of termination is an important complement to the law of wrongful termination which to date has only been utilized in cases of termination.

IV. The statue also adds a new section, RSA 275-E:9 with the title of "Protection of Public Employees". This protects any public employee who files a complaint with the Department of Labor or otherwise discloses or threatens to disclose activities or information that the employee believes are illegal, represent a gross mismanagement or waste of public funds, property or manpower, or evidences an abuse of authority, or danger to the public health and safety. The statute provides that reporting public employees can still be disciplined "so long as the action is not arbitrary or capricious and is not in retaliation for the filing of a complaint under this chapter". RSA 275-E:9. The amendment contemplates an affirmative investigation by the Department of Labor of public waste or fraud allegations with possible referral to enforcement agencies. RSA 275-E:8.

RSA 275-E:9, regarding the protection of public employees should be considered in the context of RSA 98-E regarding the Public Employee Freedom of Expression. Originally this law only applied to state employees, but in 2008 it was amended to cover all government employees. The statute provides that such employees "shall have a full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies." RSA 98-E:1.It prohibits any interference "with the right of freedom of speech, full criticism or disclosure by any public employee." RSA 98- E:2. In case of violation, a public employee is authorized to bring a civil action to recover damages and injunctive relief as well as attorney's fees and expenses. RSA 98-E:4. However, it does not disturb the protection of confidential records including documents relating to law enforcement investigations, and collective bargaining proceedings. RSA 98-E:3.
RSA 98-E expands the free speech rights of public employees in two distinct ways. First, under the federal Garcetti line of cases, Garcetti v. Ceballus, 547 U.S. 410 (2006), the First Amendment only protects government employees speaking as private citizens.
Although 98-E refers to government employees giving "opinions as an individual", RSA 98-E:1, it is clear from the context that it is distinguishing between government employees speaking as individual employees, which is protected, and government employees speaking as spokespersons for their agencies which is unprotected. If there were any doubt on this issue, RSA 275-E:9, from the amended whistleblower statute, also protects government employees speaking as government employees. Second, under the First Amendment even when applicable, the Court has set forth a balancing test in which the value of the speech is measured against its disruptive potential. Pickering v. Board of Education, 391 U.S. 563 (1968).

The New Hampshire Supreme Court has made clear that 98-E does not contain such a balancing test, and that any protected speech, assuming no violation of confidentiality, is therefore absolutely protected. Appeal of Booker, 139 N.H. 337, 340, 341 (1995).
The full significance of the recent amendments to RSA 98-E and RSA 275-E can best be assessed by considering how they complement common law claims of wrongful termination. In Monge, the court held that a bad faith or retaliatory termination (which in that case involves sexual harassment) was a violation of the employment contract. 114 N.H. at 133.

In Porter v. City of Manchester, 151 N.H. 30 (2004), the court clarified that wrongful termination was a tort, and that therefore a plaintiff could recover the full range of compensatory damages. There is no precedent, however, for recovering attorney's fees on a wrongful termination claim. As a practical matter those fees can often amount to a substantial portion of the plaintiff's losses. In a large percentage of wrongful termination cases, this gap can be addressed by adding a claim under 275-E and/or 98-E. Similarly, the statutory claims can cover types of retaliation short of firing.
The wrongful termination claim remains uniquely significant in cases involving private sector employees articulating public policy issues which fall short of being violations of the law. The New Hampshire Supreme Court has recently reaffirmed the jury's broad discretion in identifying non-statutory public policies. MacKenzie v. Linehan, 158 N.H. 476 (2009) ("we agree that public policy generally supports truthfulness and that terminating an employee for refusing to lie to protect his job, could implicate this public policy... [but] public policy does not protect an employee's expression of disagreement with a management decision'.") For the private sector employee refusing to lie (unless the lie involved a violation of the law), a claim for wrongful termination remains the only remedy.
There is no obstacle to combining claims. The whistleblower statute, provides that "this chapter shall not be construed to diminish or impair either rights of a person or any collective bargaining agreement or any common law rights." RSA 275-E:5.
Statutory pre-emption of wrongful termination claims has only been upheld when the statute specifically intends to preempt a wrongful discharge remedy. See, True v. DJQ Enterprises. Inc., 09-cv-431-SM (2011), and cases cited therein.
In a case involving public employment, all three legal claims are available although there is less need for supplementation since RSA 98-E provides for unlimited damages as well as attorney's fees. However, it could be argued that that statute is limited to situations involving the public expression of an opinion. Where the employee is terminated for privately communicating public policy concerns or suspected violations of the law, claims under RSA 275-E and the wrongful termination doctrine could be helpful. Although the court in MacKenzie, supra. acknowledged without answering the question of whether the wrongful termination doctrine applied to public employees appointed to serve at the pleasure of the appointing authority, it has upheld wrongful termination verdicts in favor of to public employees. E.g., Snelling v. City of Claremont, 155 N.H. 674 (2007); Porter v. City of Manchester, 151 N.H. 30 (2004).

The Whistleblower Statute also fills an important gap in RSA 98-E by including employee refusals to engage in illegal or improper acts, as well as affirmative protests against illegal commands.

Article by Jon Meyer Placed In NH Association for Justice Trial Bar News Volume 36 Summer 2011