Employment Law Questions & Answers
NOTE: Massachusetts and New Hampshire have different employment laws and procedures.
Q. What if I feel I am being discriminated against by my Employer because of: my age, or sex, race, color, marital status, physical or mental disability, religious creed, national origin.
A. Employee rights can be found in both federal and state laws. For example in the above question, regarding discrimination, the State of New Hampshire has laws which prohibit employer discrimination, and has a designated agency which investigates and adjudicates claims, known as the New Hampshire Commission for Human Rights (NHCHR) in Massachusetts, it is called the Massachusetts Commission Against Discrimination (MCAD). At the same time, the federal government also has jurisdiction in employment discrimination claims which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC).
It is important to note that in both the state and federal jurisdictions, there are time limits for filing your claim, as well as jurisdictional requirements regarding how many employees must work for the employer. Furthermore, the state and federal discrimination laws require that a person claiming employment discrimination file the claim at the state agency NHCHR or the federal agency EEOC, prior to pursuing litigation in the court system. Both the state and federal agencies have broad powers to award reinstatement, back pay, front pay, and other compensatory monetary damages, as well as attorney fee's to a prevailing person.
Under Federal jurisdiction, disability discrimination is governed by the American with Disabilities Act (ADA). Sexual discrimination is covered by Title VII of the Civil Rights Act of 1964, and age discrimination is governed by the Age Discrimination in Employment Act (ADEA). Other federal laws protecting employees include the Family and Medical Leave Act (FMLA), which provides that employees may take a leave of absence for a specified period of time under certain circumstances, and the Uniformed Services Employment and Re-Employment Act of 1994 which provides protections for service members called to active duty. The Fair Labor Standards Act regulates wages and benefits.
Similarly, the State of New Hampshire also has many of the same protective laws as the Federal Government. In addition to anti-discrimination laws, state laws protect employees through laws pertaining to whistleblower protection, crime victim employment leave, workers compensation and unemployment compensation.
Each of these protective statutes may require certain prerequisites in order to apply to your situation.
In addition to the above statutes, employees may have remedies under common law breach of contract, and tort actions, such as wrongful discharge.
Q - I've been fired. What should I do?
A - 1) Apply for unemployment. 2) Start to consider whether you were fired because of either: wrongful termination, discrimination or retaliation. 3) You could file a charge of discrimination or retaliation with the EEOC or the MCAD (Massachusetts) or NHCHR (New Hampshire. 4) Does your former employer have its own grievance procedure? If so, that could be an option. 5) Consult with an attorney.
Q - What is an "at-will" employee?
A. - An at-will employee is someone who can be terminated "at-will" for any reason, or for no reason. You are not an at-will employee who has a formal employment contract. The terms of that contract control the employment relationship.
My former law professor used to refer to this as the Clint Eastwood relationship, The Good, The Bad and The Ugly.
Employers can fire you with a good reason: downsizing or poor job performance. Employers can fire you with a bad reason: Junior just graduated from college and needs a job.
Employers, however, can NOT fire you for an ugly reason: race or gender.
In New Hampshire, if an employer terminates you because "you performed an act which public policy would encourage or refused to do that which public policy would condemn" you many file a tort action against the employer to compensate you for your losses.
Q - My job is such that it is getting difficult to attend work each day.
A. - 1. How can I make a proper complaint? - Most employment law doctrine requires the employee to file a complaint to protect rights later in the process. However, if the complaint is not done correctly, using proper terminology, the complaint could come back to haunt you during a hearing. It is important to submit a well-worded complaint.
2. Should I quit? - If you voluntarily quit, your case is weakened. However, your resignation might meet the standard of "constructive discharge." It would mean you were fired without good cause. Being fired without good cause is an adverse employment action. Constructive discharge is a difficult type of case to win. Give careful consideration before you quit.
Q - Can I sue my employer tomorrow?
A.- Going to court is typically the final step in theemployment law process. Court can be expensive and risky. A well-planned sequence of steps usually works in employment law situations. Every case is unique, and an attorney can take your situation and apply it to general employment law doctrine.
If you have questions concerning your rights under these laws, please contact Attorney George Wattendorf by email gwattendorf@wanlaw.com or Attorney Eric Schlapak, eschlapak@wanlaw.com
Wattendorf & Nary, P.A.
56 Dover Road (Route 108)
Durham, NH 03824
Phone: 603-868-1105
Toll-Free: 866-WATNARY
Fax: 603-868-1165
Wattendorf & Nary, P.A.
213 Elm Street, Suite 3 (Route 110)
Salisbury, MA 01952
Phone: 978 225-6950