Under New Hampshire law, absent a contract, employees have an employment-at-will relationship which means they can be fired or quit with or without reason or with or without prior notice. There are a variety of state and federal statutes that protect employees from having an adverse employment action as a result of being discriminated against, filing a worker’s compensation claim, whistleblowing on the employer, and other grounds. Furthermore, there is what is called the public policy exception to the employee-at-will doctrine which allows a wrongful discharge claim to be brought even if there are no statutory protections of that employee. To prevail on such a wrongful discharge claim, the employee must establish two elements: (1) that the employer terminated the employment out of bad faith, malice, or retaliation; and (2) that the employment was terminated because the employee performed acts that public policy would encourage or refused to perform acts which public policy would condemn.
On January 28, 2014, the New Hampshire federal trial court in the case of Grivois v. Wentworth-Douglass Hospital analyzed that wrongful discharge law and determined that Grivois, a former employee of Wentworth-Douglass, could continue forward to trial with that claim. The Judge noted that under New Hampshire law, unlike Massachusetts law, public policy does not have to be clearly previously established and a jury could determine whether or not the employee was performing an act that public policy would encourage or refuse to do an act that public policy would condemn, absent the Judge determining that no reasonable jury could come to that conclusion. For example, in a previous claim the claim that taking vacation would be something public policy would encourage could not form the basis for a wrongful discharge claim. However, in this case Grivois claimed that she spoke with management at the Hospital as to her warnings that inadequate training or staffing in the hospital operating room could result in physical harm to patients. The Judge found that those allegations were sufficient for a jury to determine at trial as to whether or not Grivois had been fired for making such warnings and whether or not those warnings would be something public policy would encourage.In any of these types of cases there are, of course, two sides to the story. The Hospital asserts that Grivois was fired for certain performance issues. It is important to note that the Judge did not make any rulings as to whether or not Grivois or the Hospital was right. The Judge ruled that the Hospital was not entitled to a judgment as a matter of law based upon the facts alleged and that the Judge would allow the jury to decide whether the Hospital or Grivois’ factual assertions were true or perhaps a portion of each were true and for it to determine whether or not Grivois was wrongfully terminated from her employment. The Judge noted that Grivois’ wrongful discharge claim was not that public policy encouraged her to disagree with her supervisor’s decisions, but that public policy encouraged her to inform her supervisors of the concerns that those decisions endangered the safety of other. In other words, this decision does not in any suggest that employees who disagree with their supervisor’s decision will have a wrongful discharge claim. This case is limited to the situation where the employee informed her supervisors of her concerns and she states she provided the specific details as to how those decisions could endanger the safety of patients. As the case stands now, unless it is resolved before trial, a jury will likely make the decision as to whether or not the Hospital wrongfully terminated the employment of Grivois.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].