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.

Friday, November 21, 2014

REGISTRATION OF FOREIGN DIVORCE DECREES

In the recent case of In re: Yaman, the New Hampshire Supreme Court issued a lengthy opinion discussing the process to registering a foreign divorce decree in New Hampshire. A foreign divorce decree is only effective in the state or country in which it is issued. It is not effective outside of the state or country in which it is issued unless it is registered in the new state or country.

Registration is important because it will enable a New Hampshire court to treat the foreign decree as if a New Hampshire court had originally issued it. Therefore, the New Hampshire court will enforce the decree as if it were issued in New Hampshire. This is important because the New Hampshire court has such powers as contempt for non-payment of child support or failure to comply with alimony or property division decree, to issuing arrest warrants seizing individuals who may have removed a child into New Hampshire to escape the application of a foreign divorce order.

In almost all cases, divorce decrees that are issued from one of the other 50 United States or territories will be easily registered in New Hampshire. This is because the New Hampshire court can be certain that the other state’s court afforded the parties the due process rights guaranteed by the United States Constitution. The difficulty occurs when a divorce decree from another country is registered in New Hampshire. Most New Hampshire judges will be unfamiliar with the law that was applied in the foreign country and may not have assurance that the foreign country allowed the litigants the same type of rights that would have been afforded a New Hampshire litigant in a New Hampshire courtroom.

The Yaman case involved the registration of a divorce decree that was issued in Turkey. The wife attempted to argue that the Turkish decree should not be registered because she did not have the opportunity to be heard in Turkey and was not allowed access to an interpreter during part of the proceedings, which were conducted entirely in Turkish. The Supreme Court disagreed and held that one of the critical issues to be determined in the registration of a foreign decree is whether the parties had the “opportunity to be heard.” The New Hampshire Supreme Court held that the phrase opportunity to be heard is not analyzed through American standards of due process rather it is a flexible concept which should be applied in a manner which is appropriate under the proceedings in the foreign court. In other words, did the parties have a full and fair opportunity to be heard before an impartial tribunal which conducted the proceeding in its regular fashion? Other factors include whether the parties had the opportunity to be represented by counsel in the foreign court.

The Supreme Court in Yaman concluded that the Turkish proceedings were conducted in the regular course of a divorce proceeding in that country and aside from a procedural hearing, the wife at all times had access to an interpreter who could translate the proceedings into English.

Registering or objection to the registration of a foreign divorce decree in New Hampshire can be a very serious undertaking. If the decree is registered, a New Hampshire court will be obligated to generally enforce the decree as written. The opposing party may not have the opportunity to undue the foreign court’s order. In the Yaman case for example, the mother, who did not have custody of the children under the Turkish Order, she was not allowed to challenge the custody order that had been issued by the Turkish court. The New Hampshire Supreme Court determined that the Turkish court would be the appropriate jurisdiction to modify the custody order. Therefore in registering or opposing the registration of the decree, an attorney should do extensive research into the procedures that were used in the foreign court and to obtain a detailed account of how the proceedings were initiated, whether the parties had access to attorneys, and whether the parties had the ability to communicate effectively with their attorneys.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at apiela@nashualaw.com.

Wednesday, November 12, 2014

BE CAREFUL ABOUT TALKING POLITICS IN WORK PLACE

Politics are on the minds of many of all of us now, yet we should be cautious about if and how we share our political opinions in the workplace. Most employees in New Hampshire and Massachusetts are at-will employees, which means they can be fired with or without cause and with or without notice except for certain limited reasons under the law. A private employee is not protected from being fired for expressing his political opinions in the workplace. Freedom of speech prevents the government from taking actions to affect certain speech of you, including your speech about politics, but does not force a private employer to allow your political speech in the workplace.

That being said, employee morale would likely decrease thereby decreasing productivity if an employer fired an employee because the owner’s views of politics differ from the expressed views of his employee. Furthermore, if a fired employee believes that he has been treated unfairly and goes to an attorney, that attorney may find other reasons to bring claims against the employer unrelated to the firing and also firing an employee for merely having conflicting political views from the owner will not prevent that employee from receiving unemployment compensation as a result of the firing which ultimately increases the costs to the employer.

A political dispute, whether it is with your fellow co-employee, subordinate, or a boss, in which you overtly state or infer that her political views are inferior to your own because she picked, in your opinion, the wrong political party or candidate can create friction between you and that fellow co-employee. Management should intervene when it receives notice of such a heated political dispute just as it would with another workplace conflict. Further, if one of the employees is going around espousing his political views to his fellow co-employees, even though he is not having a heated dispute with his co-employees, if management believes he is being disruptive, management can and should intervene. Lastly, employees should be careful as to how they express their political beliefs in social media outside of the workplace. Expressing your support for a particular candidate in social media should have no impact on your work just as putting a sign on your front lawn should not. However, expressing your frustration as to a particular political figure to the level where you are suggesting violence against political figure not only could result in your getting a visit from certain government officials, but the employer may, justifiably, decide that your at-will employment is terminated because you could be a risk to other fellow employees or customers. While management is generally not permitted to gain access to the private social media accounts of its employees, if one of those workers reports to management that another co-employee on his account made a threat of violence management should speak with its attorney to see what steps, if any, are appropriate to take. Once management has knowledge of a threat or indications of potential violence by an employee, management needs to make an assessment as to what, if anything, should be done based upon the information obtained. Ignoring the information because of its source is not a viable option.

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.

Friday, November 7, 2014

The Impact of Cell Phone Records on Adultery Cases in New Hampshire

Contrary to many people's impressions, New Hampshire law does not require proving adultery by photographic or videotape evidence. If this were so, adultery cases would be virtually non-existent. Instead, New Hampshire law recognizes that circumstantial evidence often times provides credible, reliable facts for a court to determine whether the marriage was irretrievably broken down due to adultery.

Accordingly, the law only requires that the person alleging adultery to prove that his or her spouse had the opportunity and the desire for the affair. Cell phone records are often instrumental in establishing that the cheating spouse had the desire for an affair. Cell phone records often establish the desire of the spouse by showing contact with an individual for long durations and during unusual hours. By way of example, a husband who is contacting another woman at 2:00 am is probably good evidence that the husband is in a romantic relationship with that woman. Similarly, a wife who is contacting another man every day on her way to work and on her way home from work is probably good evidence that the other man is more than just a friend. Cell phone records are often supported by other evidence such as e-mails and text messages that would support the proof of desire.

If you have any questions regarding any divorce, whether it be on adultery or other grounds, please contact one of the qualified attorneys at Hamblett & Kerrigan for a 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, November 6, 2014

SUPREME COURT CLARIFIES VOLUNTARY UNEMPLOYMENT FOR CHILD SUPPORT PURPOSES

In the recent case of In re: Susan Spenard and David Spenard, decided October 17, 2014, the New Hampshire Supreme Court clarified the authority of a trial court to impute income to a party for the purposes of calculating child support.

By statute, a trial court may calculate child support using a higher gross income number than what the party reports on their financial affidavit if the court concludes that the party is voluntarily refusing to work to their full potential.

In Spenard, the mother was previously employed as an “entertainer” and earned up to $1,000 a night. She claims to have lost her job some time prior to the final divorce hearing due medical reasons. However, she could not provide medical records demonstrating that she was, in fact, disabled from working. She also continued to spend lavishly during this alleged period of unemployment.

At trial, the court imputed income to mother of $4,000 per month. The court did not, however, make an express finding that the mother was voluntarily under-employed. On appeal the New Hampshire Supreme Court upheld this order stating that even though there was no express finding of voluntary under-employment, enough facts were introduced at trial to support this finding and make it implicit in the Order. These facts include the mother’s inability to produce medical evidence showing that she was disabled from work, her level of education, and her prior earning history which was confirmed by both the husband’s testimony and the testimony of a private investigator.

Spenard stands for the proposition that when presented with sufficient evidence a trial court has great latitude in recalculating child support using imputed income when it finds that a party is not working to their current potential. In cases where such an issue arises, it is important to have enough supporting information, such as prior employment history, spending history, a vocational expert, and other facts which would lead the court to conclude that a party is both unwilling to work to what their full potential could be.

Spenard also stands for the proposition that a party’s oral assertion that they are disabled may not lead to a trial finding that the person is disabled from working and therefore avoid imputing income. In the Spenard case, the wife repeatedly argued that she was disabled, but could not produce medical records to support her claim largely she claimed because the husband did not provide health insurance coverage. The trial court and the New Hampshire Supreme Court were not swayed by this argument and therefore the divorce attorney should prepare to consult with a medical provider who can testify to the degree of the client’s impairment and/or retain a vocational expert to demonstrate that with this degree of impairment, the client’s current earnings will be unlikely to reach their prior earnings.

If you have any questions regarding child support, please do not hesitate to contact an attorney at Hamblett & Kerrigan to discuss. The attorneys at Hamblett & Kerrigan have experience in handling such situations. Let Hamblett & Kerrigan use their experience to your advantage.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at apiela@nashualaw.com.