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Employee Discipline: New Hampshire

Employee Discipline requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Authors: James P. Reidy, Sheehan Phinney and Christine P. Corrigan, CPC Writing Services

Summary

  • New Hampshire is an at-will employment state. However, New Hampshire courts have recognized public policy exceptions to the employment at-will relationship. See Employment At-Will.
  • Employers and employees need not give notice of termination unless there is a binding agreement or law stating the contrary. See Disciplinary Procedures.
  • Employers should keep accurate written records of each instance of discipline. These documents, because they are prepared by the employer and pertain to the employee, should be a part of the employee's personnel file. See Documenting Discipline.
  • New Hampshire is a two-party consent state. See Recording Meetings.
  • New Hampshire law affords certain employees more notice and procedural due process rights prior to termination. See Public Employee Procedures.
  • New Hampshire law expands federal protections against discrimination. See Discipline and Protected Classes.
  • New Hampshire's Whistleblower Protection Act prohibits retaliation against employees who, in good faith, alert their employer or others to an alleged violation of law. See Whistleblower Protections.
  • New Hampshire law prohibits employers from requiring, as a condition of employment, that employees or applicants refrain from using tobacco outside of their employment. See Legal Off-Duty Activities.
  • New Hampshire protects employees' social media privacy rights. See Social Media Privacy.
  • New Hampshire law allows for employers to require reasonable restrictive covenants of their employees, including those covenants with provisions relating to trade secret misappropriation. See Workplace Theft.

Employment At-Will

New Hampshire is an at-will employment state. Butler v. Walker Power, +137 N.H. 432 (1993); Panto v. Moore Business Forms, +130 N.H. 730 (1988). Therefore, absent contractual or specific statutory requirements, no form of warning or discipline is required before an employee is terminated.

The New Hampshire Legislature has adopted several workplace laws that have changed the employment relationship so that employers in New Hampshire have limited discretion in hiring, advancement and termination decisions. See Discipline and Protected Classes; Whistleblower Protections and Legal Off-Duty Activities.

In addition, New Hampshire courts have recognized public policy exceptions to the employment at-will relationship.

Public Policy Wrongful Discharge

New Hampshire law recognizes a claim for public policy wrongful discharge. Monge v. Beebe Rubber Co., +114 N.H. 130, 133 (1974); Howard v. Dorr Woolen Co., +120 N.H. 295, 297(1980). The public policy need not be set forth in a statute; public policy exceptions giving rise to wrongful discharge actions may be based on nonstatutory policies. Cloutier v. Great Atl. & Pac. Tea Co., +121 N.H. 915, 922 (1981).

To establish a claim for public policy wrongful discharge, the employee must show that:

  • The employer was motivated by bad faith, malice or retaliation in terminating the employee's employment; and
  • The employee was terminated because he or she performed an act that public policy would encourage, or refused to do something that public policy would condemn.

New Hampshire courts have recognized claims for public policy wrongful discharge in the following situations:

  • An employee claimed that he was terminated due to his membership in the Army National Guard in violation of the public policy set forth in the Uniformed Services Employment and Reemployment Rights Act (USERRA). Slater v. Verizon Communs., Inc., +2005 DNH 23 (Mar. 3, 2005);
  • An employee claimed that she was constructively discharged after her employer disciplined her for comments made during an after-hours phone call with a co-worker, and harassed her after she complained about the intercepted call. The court found that the employer violated the public policy set forth in New Hampshire's Whistleblowing Law, i.e., encouraging reports of unlawful activity. Karch v. BayBank FSB, +147 N.H. 525 (2002);
  • An employee claimed that he was fired after filing for personal bankruptcy and refusing to return certain assets to employer. The court found that the employer violated the public policy set forth in the Bankruptcy Code, i.e., prohibiting termination of employment due to bankruptcy. Wenners v. Great State Beverages, +140 N.H. 100 (1995), cert. denied, +516 U.S. 1119 (1996);
  • A truck driver claimed he was fired after he refused to drive a particular route because it required him to work greater than 15 hours, in contravention of federal transportation law. Bliss v. Stow Mills, Inc., +146 N.H. 550 (2001);
  • A store manager employed for over 36 years was fired after a five-minute meeting for allegedly violating company policy regarding bank deposits. The evidence showed that the company failed to provide adequate protection to employees making deposits for stores located in high crime areas. Cloutier v. Great Atl. & Pac. Tea Co., +121 N.H. 915 (1981); and
  • An employee, who was subjected to unwelcome advances and harassing phone calls from her supervisor, was fired. The evidence showed that the personnel manager was aware of the supervisor's actions, told the employee "not to make trouble," and "connived" with the supervisor to fire the employee. Monge v. Beebe Rubber Co., +114 N.H. 130 (1974).

By contrast, an employee may not establish a claim for public policy wrongful discharge by merely alleging a discharge due to sickness or age. Howard v. Dorr Woolen Co., +120 N.H. 295, 297 (1980).

See Employment At-Will: New Hampshire; Terms of Employment: New Hampshire.

Disciplinary Procedures

Although not required by New Hampshire law, employers commonly use progressive discipline. Progressive discipline has many forms, but it usually involves graduated penalties for continued employee misconduct or unsatisfactory performance.

Employers and employees need not give notice of termination unless there is a binding agreement or law stating the contrary, such as the following:

  • An employment contract;
  • A collective bargaining agreement; or
  • A relevant statute.

Contracts, statutes or other legal requirements may also mandate specific review, hearing or appeal procedures. When notice or due process is required, employers should follow procedures and document all actions.

See also Collective Bargaining Process: Federal.

Documenting Discipline

Employer should keep accurate written records of each instance of discipline. These documents, because they are prepared by the employer and pertain to the employee, should be a part of the employee's personnel file.

The employee does not have to agree or even know about the document before it goes in his or her file, but he or she should get to review it upon request. If the employer refuses to change or remove the document, the employee gets to include his or her own version for the file. +RSA 275:56.

Recording Meetings

New Hampshire is a two-party consent state. +RSA 570-A:2; +RSA 644:9. Therefore, employers must exercise caution in recording meetings and in monitoring employee conversations.

See Employee Communications: New Hampshire.

Public Employee Procedures

When there is no employment contract or labor agreement, common law generally permits the discipline or discharge of employees with or without cause. However, some employees, as a matter of state law, are afforded more notice and procedural due process rights before termination, such as:

  • Certain state workers;
  • Certain county workers; and
  • Certain municipal workers.

New Hampshire laws require just cause for discharge once employees meet statutory requirements, e.g. remain beyond the probationary period.

These statutes, as is the case with union and other employment contracts, usually address or define conditions warranting termination. Some common reasons for discharge include the following:

  • Dishonesty or stealing;
  • Use of, possession of or being under the influence of drugs or alcohol;
  • Competition with the employer;
  • Violation of work rules;
  • Fighting or other immoral or unacceptable conduct;
  • Incompetence; and
  • Failure to carry out an order.

Discipline and Protected Classes

New Hampshire Law Against Discrimination

The New Hampshire Law Against Discrimination expands the number of federally protected classes. New Hampshire prohibits discrimination based on the following characteristics:

  • Age;
  • Sex;
  • Race;
  • Color;
  • Marital status;
  • Physical or mental disability;
  • Religious creed;
  • National origin;
  • Gender identity; or
  • Sexual orientation.

See +2017 Bill Text NH H.B. 1319; see EEO - Discrimination: New Hampshire.

The New Hampshire Law Against Discrimination prohibits employers from the following actions unless the action is based upon a bona fide occupational qualification:

  • Refusing to hire;
  • Employing; and
  • Discharging or otherwise discriminating against any individual.

+RSA 354-A:7.

Employers include any entity employing six or more persons. +RSA 354-A:2(VII).

There is no minimum age to establish an age discrimination claim under the New Hampshire Law Against Discrimination, unlike under the federal Age Discrimination in Employment Act.

See Employee Management > EEO - Discrimination: New Hampshire.

Equal Pay Protections

New Hampshire law provides pay equity protections and prohibits discrimination and retaliation based on exercising those rights. +RSA 275:38-a; +2013 Bill Text NH S.B. 207. Specifically, an employer may not discipline or discharge an employee because he or she:

  • Makes a charge, files any complaint or institutes, testifies in or participates in an investigation, proceeding, hearing or action; or
  • Inquires about, discusses or discloses his or her wages or those of another employee.

In addition, an employer may not require that an employee refrain from disclosing the amount of his or her wages as a condition of employment. An employer is also prohibited from requiring an employee to sign a waiver or any other document that would deny the employee the right to disclose the amount of his or her wages, salary or benefits.

Terminating or disciplining an employee because he or she discloses wage information is prohibited. However, an employer may continue to discipline any employee who has access to wage information of other employees as a part of his or her job functions and improperly discloses others' wage information (an example of proper disclosure would be disclosing wage information in conjunction with an investigation, proceeding, hearing or action).

The pay equity law also contains notice requirements. See Employee Communications: New Hampshire.

Breastfeeding

New Hampshire law specifically protects against discrimination those employees who breastfeed. +RSA 132:10-d. Employers may not restrict or limit the right of an employee to breastfeed.

Threats of Violence

New Hampshire's Law Against Discrimination prohibits threatening that is motivated by the following characteristics:

  • Race;
  • Color;
  • Religion;
  • National origin;
  • Ancestry;
  • Sexual orientation;
  • Gender; or
  • Disability.

Threatened physical force and threatened damage to or trespass on property is a communication, by physical conduct or by declaration, of an intent to inflict harm on a person or a person's property by some unlawful act with a purpose to terrorize or coerce. +RSA 354-B:1.

Employers must discipline employees who exhibit threatening behavior in the workplace as soon as the employer becomes aware of the conduct.

See also EEO - Discrimination: New Hampshire.

Domestic Violence and Related Protections

New Hampshire law specifically protects from discharge, demotion, suspension or other types of discrimination and retaliation those employees who have been victims of domestic violence, harassment, sexual assault or stalking. +2013 Bill Text NH S.B. 390; +RSA 275:71. An employer that violates this provision is subject to a civil penalty.

Right to Request Flexible Working Arrangements

New Hampshire law protects employees who request flexible working arrangements. Effective September 1, 2016, the law prohibits an employer from retaliating against any employee solely because the employee requests a flexible work schedule. However, the law does not require an employer to accommodate a flexible work schedule.

+RSA 275:37-b. For more information on the "right to request" law trend, see Managing Employees in Special Situations: Federal.

Whistleblower Protections

New Hampshire's Whistleblowers' Protection Act prohibits retaliation against employees who, in good faith, alert their employer or others to an alleged violation of law. +RSA 275-E:1 et seq. (275-E:1 to 275-E:7).

New Hampshire law prohibits employers from harassing, abusing, discharging or otherwise discriminating against any employee because:

  • The employee, in good faith, reports or causes to be reported, verbally or in writing, what the employee has reasonable cause to believe is a violation of any law or rule adopted under federal, state or local law;
  • The employee objects to or refuses to participate in any activity that the employee, in good faith, believes is a violation of the law; or
  • The employee, in good faith, participates, verbally or in writing, in an investigation, hearing or inquiry conducted by any governmental entity, including a court claim, which concerns allegations that the employer has violated any law or rule adopted under federal, state or local law.

+RSA 275-E:2(I).

Employees have a private right of action for violations of the Whistleblowers' Protection Act. +RSA 275-E:2. Employees may recover the following:

  • Back pay;
  • Benefits;
  • Attorney fees;
  • Costs; and
  • Reinstatement to their former position.

The statute of limitations is three years from the alleged violation. +RSA 275-E:2(II).

In addition, New Hampshire law prohibits employers from harassing, abusing, discharging or otherwise discriminating against any employee because the employee has refused to execute a directive that, in fact, violates any law or rule adopted under federal state or local law. +RSA 275-E:3.

An employee may file a claim with the Labor Commissioner for a violation of provisions of the Whistleblowers' Protection Act after having made a reasonable effort to address the issue through any grievance or similar procedure with the employer.

The Labor Commissioner may conduct a hearing regarding the violation and may order, as appropriate, any of the following remedies:

  • Reinstatement of the employee;
  • Payment of back pay;
  • Fringe benefits;
  • Seniority rights;
  • Any appropriate injunctive relief; or
  • Any combination of the listed remedies.

+RSA 275-E:4.

Public employees are entitled to all protections under the Whistleblowers' Protection Act for making a complaint. +RSA 275-E:8(IV). Public employees also are protected from retaliation for the following:

  • Reporting a gross mismanagement or waste of public funds, property or manpower;
  • Reporting an abuse of authority; or
  • Reporting a danger to public health and safety.

+RSA 275-E:9.

The Labor Commissioner has the authority to receive complaints from any public employee regarding the possible existence of any activity constituting fraud, waste or abuse in the expenditure of any public funds, whether state or local, or relating to programs and operations involving the procurement of any supplies, services or construction by governmental entities within the state. +RSA 275-E:8(I).

New Hampshire law prohibits employers from requiring, as a condition of employment, that employees or applicants refrain from using tobacco outside of their employment. +RSA 275:37-a.

Employees would still be required to follow any workplace rules established under the New Hampshire State Indoor Smoking Act. +RSA 155:64. In addition, New Hampshire law prohibits the use of any tobacco product, e-cigarette or liquid nicotine in any public educational facility or on the grounds of any public educational facility. Any person who violates this section may be subject to a fine not to exceed $100 for each offense. +RSA 126-K:7.

Social Media Privacy

New Hampshire protects applicants' and employees' personal social media and electronic mail privacy rights. +2013 Bill Text NH H.B. 1407. Specifically, an employer may not request, require or compel access to an employee's personal social media accounts, including by:

  • Requesting login information;
  • Requiring the employee to add the employer as a contact; or
  • Compelling an employee to reduce the privacy settings to an account.

An employer is specifically prohibited from threatening or taking disciplinary action against an employee based on his or her refusal to provide access or login information to a personal social media or electronic mail account.

However, an employer may continue to:

  • Adopt and enforce workplace policies governing the use and monitoring of employer-owned or employer-provided hardware, equipment or accounts;
  • Request or require employee login information for access to employer-owned or employer-maintained social media or electronic mail accounts;
  • Conduct investigations into employee misconduct with respect to an employee's social media activities or unauthorized transfer of confidential or proprietary business information.

The law contains penalty provisions to be enforced by the labor commissioner; an employer that is found to be in violation of the law may appeal the decision. See +RSA 273:11-a; +RSA 273:11-c.

Marijuana

Federal law continues to prohibit use of marijuana. Marijuana, or cannabis, is scheduled as a Schedule I controlled substance, which means that it has no acceptable medical use. Therefore, an employer:

  • Does not have to accommodate marijuana use, including ingestion, possession or intoxication, in the workplace; and
  • May take adverse action, including discipline up to and including termination, against an employee who is under the influence of marijuana at work.

New Hampshire law permits the use of marijuana for medical purposes. However, an employer need not permit or accommodate marijuana use or ingestion in the workplace, or an employee working while under the influence of marijuana.

An employer should continue to follow applicable drug testing and drug-free policies and document any facts that would show impairment while at work, such as those relating to dexterity or appearance.

Workplace Theft

New Hampshire law allows for employers to require reasonable restrictive covenants of their employees, including those with protections for misappropriation of trade secrets.

See Employee Communications: New Hampshire.

Future Developments

There are no developments to report at this time. Contnue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

EEO - Discrimination: New Hampshire

Performance Appraisals: New Hampshire

Employee Communications: New Hampshire

Employee Privacy: New Hampshire