Work contract doesn't necessarily prevent suits
Published 01/03/08

On December 12, 2007, the New Hampshire Federal Court confirmed that under New Hampshire law an employee with a signed employment contract may still sue his employer for a wrongful termination without solely relying on the expressed terms of his employment contract. However, he cannot sue a co-employee for wrongful interference with that employment contract if the employee's actions complained of were taken within the scope of that co-employee's employment.

In the case of Thomas L. Attard v. Jean Benoit and the University of New Hampshire , Thomas Attard had sued UNH and Jean Benoit, the Chairman of the Civil Engineering Department, after he was not reappointed as a tenure-track faculty member in the civil engineering department, asserting claims for wrongful termination, breach of contract, misrepresentation, and wrongful interference with the contractual relationship.

UNH and Benoit stated they were entitled to a judgment without a trial citing a variety of reasons. One of the arguments advanced by UNH was that because Attard was a contract employee, he could not bring a wrongful termination claim and therefore that claim would have to be dismissed.

To succeed on a wrongful termination claim, Attard would have to establish that he was terminated for performing an act that public policy would encourage or he refused to do something that public policy would condemn.

The Court found that Attard produced evidence that would give rise to a genuine material factual issue as to whether or not his termination was motivated in part by his refusal to countenance Benoit's sexual comments concerning female students. The Court noted that it is for the jury to determine whether or not a public policy exists and that a jury must decide whether or not the public interest in encouraging employees to object to a professor's inappropriate sexual remarks about students is sufficiently strong to serve as a basis for a wrongful termination claim.

The Court noted that merely because Professor Attard had a signed employment contract it did not lessen his right to be free from being terminated for performing an act public policy would encourage or refusing to do something public policy would condemn.

Attard also argued that he had a wrongful interference with contractual relationship claim against Benoit stating that Benoit had wrongfully interfered with the employment contract between UNH and him. The Court held that since Benoit had been acting within his scope as the Chairman of the Civil Engineering Department, he could not be considered a third party for purposes of interfering with Attard's contractual relationship with UNH. In other words, Benoit was an agent for UNH, not a third party interfering with a contract and was acting on behalf of UNH as a party to the contract. Therefore, Benoit could not be liable for wrongful interference with the contractual relationship between UNH and Benoit.

This case helps employers and employees understand that New Hampshire employees cannot be fired for doing something public policy would encourage or refusing to do something public policy would condemn, even if they signed a contract which is silent on that point. Further, employees cannot sue their bosses for wrongfully interfering with their employment contract when the boss took the action, right or wrong, within the scope of his employment.

J. Daniel Marr is a director and shareholder of Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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