The defense I was “only following orders” is sometimes referred to as the Nuremberg defense. Generally, employees are liable for their own wrongful acts irrespective of whether or not they were doing so at the bequest of their boss. For example, in New Hampshire a manager acting on behalf of his corporate employer in firing an employee that legitimately complained about sexual harassment by the owner could be found liable under the state employment discrimination laws along with the corporate employer for his participation in the illegal retaliation. This was in part clarified in the Fred Fuller New Hampshire Supreme Court decision. While the facts of that case were quite egregious, that court’s application of the employment discrimination statute to find agents of employers that assist in the discrimination liable was supported by the direct language of the statute. Similarly, if an employee were to at the bequest of her boss defraud a customer or vendor, she could be personally liable for the harm committed and possibly be found guilty of a crime. While it is possible that a prosecutor in discussing a possible plea bargain may consider whether or not she was following orders and not personally benefiting from the criminal act that she committed, if she commits a crime on behalf of her employer, both she and that employer may be found guilty for the criminal offenses.
As a result, if an employee’s manager or the business owner requests an employee to commit a criminal act, the employee should not do so and thereafter should speak privately with employment counsel to determine the best strategy as to that situation. If an employee is fired for refusing to take part in an illegal act such as: (a) firing a subordinate in retaliation for her raising a legitimate discrimination claim against the owner; (b) refusing to defraud a customer or a vendor; or (c) refusing to lie to a state or federal official during a governmental audit; the employee would have a wrongful discharge claim under New Hampshire law.
Under New Hampshire law, if an employee does not have a contract she is an employee-at-will which means generally she can be fired or quit, with or without cause and/or notice unless that firing results in a state or federal statutory violation. The public policy exception to the employee-at-will doctrine prohibits from an employer in bad terminating an employee because she refused to do something public policy would discourage or did something public policy would encourage. Refusing to follow the illegal directive of the employer could fall into that public policy exception and the employee may also have some protection under certain whistleblower statutes that the employee can discuss with an employment attorney. While it would be a difficult situation that the employee is placed in, she should speak with employment counsel to stay on the right side of the law while protecting her interest.
For employers, management should be provided ethical training specific to your business with a clearly expressed expectation of honesty. Management and the owners should further realize that if an employee is willing to assist in doing a bad act against someone else that employee could later turn on management or the owners with a similar nefarious act. Taking the high road is not only the right thing to do; it is in you self-centered interest.
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].