New Hampshire employers cannot retaliate against workers who report illegal actions of the employer or who refuse to follow an illegal order. The Whistleblowers’ Protection Act, R.S.A. 275-E, prohibits an employer from discharging, threatening or otherwise discriminating against any worker regarding such workers’ compensation, terms, conditions, location or privileges of employment because
- the worker, in good faith, reports or causes to be reported verbally or in writing what the worker has reasonable cause to believe is a violation of any law or rule adopted under the laws of this state, a political subdivision of this state or the United States;
- the worker, in good faith, participates in an investigation, hearing, or inquiry conducted by any governmental entity, including a court action, which concerns allegations that the employer has violated any such law or rule; or
- the worker has refused to execute a directive which in fact violates any such law or rule.
For a worker to have the protections under the Whistleblowers’ Protection Act when reporting or assisting in the investigation of violations of laws by the employer, the worker must first bring the violation to the attention of a supervisor at his place of employment and then allow the employer a reasonable opportunity to correct the violation. This is true unless the worker has specific reason to believe that reporting such a violation to his employer would not result in a prompt remedying of the violation.
For example, a worker finds out that a supervisor in order to avoid paying for overtime is having hourly workers fill out time cards showing less hours than they actually worked. Unless that worker has specific reason to believe that the owners of the company were in on the scheme, it would be quite appropriate for the worker to first report the information he/she has to the employer and give that employer reasonable opportunity to remedy the situation prior to reporting the matter to a governmental authority.
If a worker believes his employer has violated the Whistleblowers’ Protection Act, after pursuing any internal grievance procedure or similar process with his employer, that worker may have his case heard before the New Hampshire Department of Labor. The Department, if appropriate, may order reinstatement of the worker, payment of back pay, fringe benefits, seniority rights, appropriate injunctive relief, or any combination of those remedies. However, reinstatement of the fired worker is often not his first choice and the Act does not provide for future loss wages and benefits.
A worker may also have the right to file a wrongful discharge claim in court. If an employer fired a worker for refusing to make certain misrepresentations as to the employer’s products to potential customers, the firing of that worker may very well fall within the public policy exception of the employment-at-will doctrine and constitute a wrongful discharge claim that could be presented to a jury to decide without the limitations on remedies contained within the Whistleblowers’ Protection Act.
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 firstname.lastname@example.org.