Wednesday, December 17, 2014

Injury Victims Beware - Insurance Companies Are Watching You

The use of social media over the last several years has exploded. The use of Facebook, Instagram, Twitter, LinkedIn, and other social media sites are commonplace in today's society. As a result, insurance company adjusters as well as their attorneys routinely monitor injury victims' social media sites. Accordingly, it is important for the injury victim to restrict access of his/her site and to understand that anything they place on these sites may be viewed by insurance company representatives and their attorneys who will attempt to use same against him/her. For example, it is not uncommon for insurance companies to download a photograph of the injury victim smiling on their Facebook page and attempt to use it as evidence that the injury victim is not seriously hurt. So long as the insurance company obtains the photograph from the public domain of the site and does not use fraud or deceit to use the information, it will be allowed to use the information in court.

Even if your social media accounts are restricted to certain individuals and accessible to the public, it is commonplace for insurance companies to request access to an injury victim’s social media accounts as part of the discovery process and download evidence to be used in the case. So, conversations that were thought to be private when made may be accessible to insurance company representatives during the litigation. Accordingly, the injury victim should use great care in posting on social media sites.

If you have any questions regarding your injury, please feel free to contact an attorney at Hamblett & Kerrigan for a free consultation.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at krauseo@nashualaw.com.

Thursday, December 11, 2014

Hamblett & Kerrigan Elves Help to Make the Best Christmas Ever!

For the 26th consecutive year, H&K elves have been hard at work shopping and wrapping for two young children. We want them to have the best Christmas ever!

Every year the firm “adopts” children through the Front Door Agency (previously known as the Nashua Pastoral Care Center). Employees of the firm donate generously so everything on the children’s wish lists can be purchased. The team effort culminates with a fun “Wrap and Rap Party” where employees “ooh and aah” over gifts, then socialize and enjoy holiday treats while wrapping.

Hamblett & Kerrigan is proud to do its part in helping the Front Door Agency, which joined with the Telegraph Santa Fund program back in 1994, provide over $100,000 of in-kind contributions of toys, clothing and gifts to over 1,000 children. It is truly rewarding to see the sense of community this holiday program brings. All families who apply for the program go through a thorough screening process. Wish lists are shared with other holiday programs in our community to ensure there is no duplication. The need is great and Christmas wishes of children whose families are struggling could not be met without the community’s support.

Wednesday, December 10, 2014

Holiday Parties

After a long year of hard work, holiday parties, whether company sponsored or at a co-worker’s house, can be a great opportunity to get to know your co-workers better and make friends. However, both the employer and the workers should consider the work force as a team and not a family. At a family gathering, some family members may get drunk and spew their views as to politics, religion, or other sensitive topics, and even critique other family members for their countering views. Although such behavior is inappropriate, perhaps the worst that can happen is that they are not invited to Thanksgiving dinner again. However if those individuals act that way with co-workers at a holiday party, they may find themselves out of a job.

Some workers believe that what they do on their off-company time is their own business, yet they are wrong when they are dealing with co-workers. There is no constitutional freedom of speech that prevents an employer from taking action based upon what a worker said to a co-worker. By way of example, as noted in last month’s article on political speech, if one worker demeans and belittles a fellow worker outside the work place about their political views, the employer may decide to take disciplinary action including, but not limited, to firing that worker and would be allowed to do so under New Hampshire and Massachusetts law, albeit the worker may be entitled to unemployment payments.

The employer has an interest in keeping a harassment-free workplace and having a team of workers who work together well. Both under New Hampshire and Massachusetts law, workers are employees at will which means that either they or the employer can terminate the relationship with or without notice and with or without cause other than for certain exceptions, of which acting up at a party or bar with co-workers is not one of them.

Another issue that arises in social gatherings of co-workers, especially when alcohol is involved, is sexual harassment. Employers have an obligation to keep the workplace free from sexual harassment. If the harassing event occurred off premises, the employer still has an obligation to investigate it and, when appropriate, take disciplinary action including possibly firing the accused individual depending if the allegations are proven true and the severity of the conduct. For example, if a worker at a bar gropes a co-worker, he may find himself out of a job on Monday morning even though the conduct was off premises and off the clock. “Hooking up” at a party or bar with a co-worker could also result in a false claim of sexual harassment because one of the participants regrets the conduct afterwards and does not want to admit it was consensual. While the worker may be proven right and not a harasser, most of us would prefer to not be the target of a sexual harassment investigation.

In summary, ‘tis the season to be jolly, but not boorish, snarky, opinionated, or drunk in that not only would that decrease your reputation among your co-workers, but it may result in you being out of a job or, at a minimum, having a setback in your career path because of one night’s bad choices.

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 dmarr@nashualaw.com.

Monday, December 1, 2014

YOU SHOULD LET PEOPLE KNOW THEY ARE DEALING WITH AN LLC IN CONTRACTS OR RISK NO LLC PROTECTION

A recent decision from the Appellate Division of the Massachusetts State Court illustrates the dangers of a business either incorporating or creating a limited liability company and then not disclosing that fact to people with whom they contract. Often individuals decide to create a corporation or a limited liability company and register it with the secretary of state’s office in the state where they do business so that they may avoid personally liability for debts of the company. In the case of Keane v. Waggoner, the Keanes purchased a miniature long-haired dachshund bred by Vom Daxi Haus, LLC; a Wisconsin company owned by Jacqulyn and Mark Waggoner. The Keanes alleged that they were deceived as to the dog’s pedigree and sued the Waggoners in small claims court in Massachusetts. The Waggoners removed the case to the Cambridge District Court and, among other things, sued the Keanes under the Waggoner’s limited liability company, Vom Daxi Haus, LLC for breach of contract alleging that the Keanes had failed to honor the company’s breeding rights of the dog as reserved under the terms of the sales agreement. The judge dismissed the fraud claims against the Waggoners on the grounds that they were immunized from personal liability since they operated within an LLC. The Keanes asked the judge at trial to remove the case from a potential jury’s verdict stating that there was insufficient evidence that the company was a party to the contract. The contract listed the seller as Jacqulyn Waggoner without any indication of a representative capacity and they had no other knowledge that she was acting as an agent of the LLC. The judge denied that motion and the jury returned a verdict in favor of the LLC on the breach of a contract. On appeal, the Appellate Division decided that the breach of contract claim should not have gone to the jury because there was insufficient evidence that the LLC was a party to the contract and further revived the Keanes’ fraud claims against the Waggoners for the same reasons. Simply put, individuals cannot enter into contracts for their LLC business without disclosing to the other contracting party that they are dealing with a limited liability company and not individuals. If the Waggoners had entered into the sales agreement under the LLCs name and signed the contract as a member or manager of the LLC, the case would have had a substantially different outcome. The net effect was a lot of wasted time and money and potential exposure of the Waggoners because they did not let the Keanes know that the Waggoners planned on the Keanes doing business with a limited liability company.

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 dmarr@nashualaw.com.

Wednesday, November 26, 2014

Forced Tip Pooling

It is not uncommon in restaurants for the wait and bus staff, bartenders, and other employees to share tips; however, New Hampshire has a specific rule in regards to same. The current rule in statute NH RSA 279:269-b states that tips are wages and property of the employee receiving the tip. Any tip-pooling or sharing arrangement has to be done without coercion from the employer. In a decision dated November 13, 2014 in the case of Ichiban Japanese Steak House, Inc. v. Kimberly Rocheleau and Samantha Greaney the New Hampshire Supreme Court did not reverse the Department of Labor’s decision that Ichiban violated the tip-pooling statute when it had a tip-pooling arrangement in which a prospective employee would not be hired into a wait staff position if they did not sign the tip distribution sheet agreeing to the disbursement of their tips. The Supreme Court found that the Department of Labor’s determination that those facts created coercion by the employer as to the tip-pooling arrangement were not erroneous as a matter of law and therefore must be upheld. Simply put, New Hampshire restaurant owners should be aware that disclosing tip-pooling arrangements to prospective employees to give them the opportunity to either agree or find other employment is not enough.

Furthermore, this November 13, 2014 decision also clarifies that when any employee files a Department of Labor wage claim and thereafter has to go to Court to enforce it they are entitled to attorney’s fees in the Court. The 2012 amendments to the tip-pooling statute clarify that in order to make the tip-pooling arrangement invalid, the coercion has to be by the employer so the pressure of going along with the fellow employees with a tip-pooling arrangement may not be enough to prove coercion that would make the arrangement unenforceable to the pressured employee. This decision makes it more difficult for restaurant owners to have tip-pooling arrangements.

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 dmarr@nashualaw.com.