What Every Worker Needs to Know About New Hampshire Employment Law

Work is about personal and family financial wellbeing and survival; it is about career and self-identity. To be fired can be devastating. We expect to be treated fairly and with respect. However, most people outside of government employment, union employees, returning veterans and CEO’s, are considered by the law to be employees at will with no enforceable right to job security. Too often the law protects the authority of the employer at the expense of the individual employee.

There are, however, oases of legal protection based on a patchwork of state and federal laws and common law principles developed by the courts.

Following are some of the most common concerns, and what the law provides:

  1. "My employer fired me without giving any reason or warning." The law does not require employers to give reasons or advance warnings for firing employees at will. But if an employer seeks to prevent the payment of unemployment benefits, it has the burden of proving misconduct..
  2. "My employer treated me unfairly." The law does not require fair treatment, although unfairness can be evidence of illegal discrimination.
  3. "I was fired based upon a false accusation." An employee at will is not protected against being fired for a false reason, unless the false reason is a pretext for an illegal motive.
  4. "I was fired for excessive absenteeism even though I was sick." Being sick is not always protection against being fired. However, for employers with more than 50 employees within 75 miles, fulltime employees who have worked for more than a year are entitled to take up to 12 weeks of unpaid leave for serious health conditions under the Family Medical Leave Act without adverse consequences. And if the condition causing the illness amounts to a disability, which is broadly defined, then the employee is protected against disability discrimination, and can request a reasonable accommodation. Finally, if the employers knows that the absences are pregnancy related, the employee’s job security is protected absent business necessity.
  5. "I can’t be fired, I am on disability." Disability insurance provides income support while a person is unable to work. It does not provide protection against being fired. If the disabling condition has been caused by a work related injury, then the employee is entitled to be reinstated for up to 18 months after the injury occurred. Disability insurance can complement the job protection provided by the American with Disability Act (ADA) which protects people with disabilities able to perform the essential functions of their job from discrimination.
  6. "I am being harassed/bullied." The law does not protect against hostile work environments or bullying unless the reason for the hostility is based upon an illegal motive such as race, age, sex, religion, disability, ethnic background, sexual orientation, marital status, national origin, or whistleblowing.
  7. "I was fired for speaking out." Public employees are partially protected, but employees in the private sector do not have free speech rights against their employers. Private employees do have some rights to speak out. Complaining about an illegal practice or refusing to participate in such a practice is protected under the New Hampshire Whistleblower Statute and other whistleblowing protections. Being fired for doing something in support of public policy or for refusing to do something against public policy (for example: driving a truck with defective brakes) is protected by the law of wrongful termination, and communicating about workplace conditions can be protected as concerted activity under the National Labor Relations Act even where there is no union.
  8. "I was fired even though I am over 60." The federal Age Discrimination in Employment law protects employees 40 and over, and the New Hampshire counterpart law protects people of all ages against discrimination based upon age including discrimination for being too young. However, under either law, the employees has to prove that he or she was fired because of age.
  9. "I am not receiving equal pay for equal work." The law does not require equal pay even for the same work so long as the disparity is not based on an illegal criteria such as sex.
  10. "My employer retaliated against me." Retaliation is only illegal if it is taken against a legally protected act. For example, complaining about sexual harassment is legally protected, complaining about office politics is not.
  11. "My former employer violated my legal rights by giving me a bad reference." Although there is a common belief that employers can only provide basic employment information, there is nothing in the law that prevents an employer from giving a bad reference so long as that reference does not contain false facts, or is not given in retaliation for the employee making a legal claim or taking other protected actions.
  12. "I am ineligible for unemployment benefits because I was fired." A former employee is still entitled to receive unemployment benefits unless terminated for "misconduct associated with employment." This is interpreted to mean either an intentional violation of company policy or repeated acts of negligence.
  13. "I am ineligible for unemployment benefits because I resigned." A resignation does disqualify a person from receiving unemployment benefits under certain circumstances. First, if the Department of Employment Security determines that the resignation was for good cause associated with the employer, and that the employee acted reasonably, unemployment benefits will be paid. Second, if the resignation was involuntary in the sense that the person otherwise would have been fired, then benefits will also be paid provided that the reason for the threatened firing did not amount to misconduct.
  14. "I left my job or was fired from my job and did not receive my unused vacation days." The law largely leaves this issue to employer discretion provided that the employer is consistent. Employees are entitled to be paid for unused vacation days if the employer has a policy or practice of paying departing employees for their unused days. If the employer has no policy at all, there may also be a right to receive payment for these days since the law requires employers to have written benefit policies in place.
  15. "I signed an agreement not to work for any competitor of my company, now I cannot get hired." Non-competes may be enforceable, but only when the employer has a strong justification, the scope of the non-compete is reasonable, and the employee was on notice of the requirement before taking the job.
  16. "I was fired after my employer learned I was pregnant." It is illegal to discriminate based on pregnancy, and under New Hampshire law, an employee cannot be fired because of pregnancy or childbirth related conditions absent business necessity. However, a pregnant employee can be fired for reasons unrelated to her pregnancy.
  17. "I was sexually harassed (or harassed based on race or disability)." Sexual harassment is illegal if the harassment was severe or pervasive. However, if the perpetrator is a co-employee, you have to show negligence by the employer. If the harasser is a supervisor, then the employer can defend by claiming that you failed to utilize its complaint procedure or it conducted an adequate investigation and protected you against further harassment.
  18. "I cannot get my personnel file." The law entitles you to a copy of your personnel file even if you are a former employee. If you cannot get it voluntarily, you should contact the New Hampshire Department of Labor.
  19. "I was not paid for all my commissions when I left." Under most circumstances, commissions are considered wages due even if the customer has not made final payment. But this can be modified by company policy.
  20. "I have been discriminated against because of my military status." Federal law, USERRA, provides strong protection against any discrimination based on military service and provides returning veterans with a degree of job security during their first six months of re-employment.
  21. "Should I resign so I won’t be fired." Depends on the circumstances and your priorities, but if you resign that may cut off your legal rights.
  22. "I was sexually harassed but missed my deadline for filing a discrimination charge (180 days under State law, 300 days under Federal law)." The clock starts running from the last act of harassment. If the deadline have passed, you may still be able to file if you were threatened or misled into not filing. And if you cannot file against the company, you can still sue the perpetrator for physical assault for up to three years.
  23. "I signed an arbitration agreement. Have I given up my legal rights?" You have probably given up your right to a jury trial, but you can still enforce your rights through arbitration which is a less formal version of the court process.
  24. "I am going to work in Massachusetts where employees have more rights." Employment laws vary from state to state. The state where you work is generally determinative of what law applies, but the lack of genuine job security is a national problem. A better strategy would be to work with the New Hampshire Legislature to strengthen the job protections in this State.