New Hampshire follows the employee-at-will doctrine which means that an employee can be fired with or without cause and with or without notice unless the employer fires the employee due to his or her protected class or for doing a certain protected activity under statute. For example, under state and federal law, employees cannot be fired because of their race, gender, or disability or because of a work-related injury. However, if the boss and the employee do not get along or if the boss feels the employee is not productive enough, the boss does not have to give the employee a second chance under the employee-at-will doctrine. That said, it is prudent to have clear reasons for the termination and if a person is in a protected class or has done a protected activity, it is prudent to speak with employment counsel prior to the firing.
There is also no requirement under New Hampshire law for progressive discipline, absent an agreement between employer and employee or with their union. Executive employment agreements usually have a provision that states while the employer reserves the right to terminate the employment relationship with or without cause, if the termination is without cause, the executive receives severance pay stated within that agreement. In such agreements, if the executive is to be terminated for just cause and therefore is not entitled to a severance payment, the executive may under the agreement terms be entitled to notice and an opportunity to cure the claimed cause, if it is curable. For example, if the employer states the president of the company is in material breach of her obligations under the agreement for failing to do the job competently, the employer may need to notify the president of what is specifically expected of the president and give him the opportunity to meet that performance expectation or to challenge it as unreasonable. However if the just cause claim is that the president embezzled money from the employer that is not curable through restitution since you cannot cure dishonesty and the only cure would be the president proving he had not embezzled.
Keeping in mind that most employees are employed at will, it is generally a good career choice, while working for the employer, to try to make your immediate boss look good, of course, without deception. If an employee finds and accepts a better job, the employee can always have the option of explaining in an exit interview how the owners of the company may be able to increase employee morale and productivity by changing certain actions of the boss or replacing the boss. Such an explanation in an exit interview when the employee is leaving voluntarily may be considered as more credible than an employee giving an excuse in an interview upon which he is being fired as to why it is not his fault, but his boss’ fault.
For employers, the fact that progressive discipline is often not legally required does not mean that progressive discipline in never a good idea. For example, if someone is not as productive as she could be, yet that person appears earnest, giving her a warning and an opportunity to better her performance, perhaps with coaching from a mentor co-worker, may not only salvage that employment relationship, but also may be good for the other employees’ morale knowing that teammates help each other out. However, an employee who is lackadaisical and consistently does not pull her own weight may be fired without an additional opportunity to correct her performance deficiencies and employee morale may actually increase with a firing of an employee which is well deserved.
In summary, under New Hampshire law, neither just cause nor progressive discipline is required, absent an agreement, yet at times both may be prudent. When in doubt, it would be appropriate to speak with employment counsel.
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].