Worker should report illegal actions to employer first
Published 12/31/04

Employees have a duty of loyalty to their employer and, in general, cannot take action that the employee believes will hurt the employer.

However, the law does afford protection to employees who report violations of law or who refuse to execute illegal orders. Employers in New Hampshire are governed by the Whistleblower's Protection Act, R.S.A. 275-E which prohibits an employer from discharging, threatening, or otherwise discriminating against any employee regarding such employee's compensation, terms, conditions, location, or privileges of employment 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 the laws of this state, a political subdivision of this state; or the United States;

• the employee, 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 employee has refused to execute a directive which in fact violates any such law or rule.

For an employee to have the protections under the Whistleblower's Protection Act when reporting or assisting in the investigation of violations of laws by the employer, the employee must first bring the violation to the attention of a supervisor at his employer and then allow the employer a reasonable opportunity to correct the violation, unless the employee 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, if an employee finds out that one of the salesperson of the company is deceiving customers in order to increase sales, unless that employee has specific reason to believe that the owners of the company were in on the scheme then it would be quite appropriate for the employee to first report the information he or she has to the employer and give that employer the reasonable opportunity to remedy the situation prior to reporting the matter to a governmental authority.

If a worker believes his employer has violated the Whistleblower's Protection Act, after pursuing any internal grievance procedure or similar process with his/her employer, that employee may have his/her case heard before the New Hampshire Department of Labor. The Department, if appropriate, may order reinstatement of the employee, payment of back pay, fringe benefits, and seniority rights, appropriate injunctive relief, or any combination of those remedies.

Of course, reinstatement of an employee's job is often not a remedy, since it is likely the work environment will be hostile irrespective of any order by the Department that the employer cannot retaliate. Another option may be to proceed with a wrongful discharge claim in court asking for all damages suffered or to be suffered including future lost wages.

Of course such a court action should only be considered after the advice of an attorney and if a suit is filed it should be through assistance of an attorney.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.