It was disconcerting to learn that the City of Nashua School District was unable to honor a recent request by the Nashua Telegraph to produce emails created and sent between its former Superintendent of Schools Christopher Hottel and Chief Operating Officer James Mealey. That failure led to an equally disconcerting disclosure that the city and the state’s Right to Know Commission are of the opinion that the law and policies in this area are vague, unclear and in need of revision. While that may be so, I would suggest that the basis for the appropriate policy is readily available and has been for some time.
South of our border, Mayor Menino has problems due to what appears to be a failure on his aide’s part to retain emails in compliance with Massachusetts’ state law which cites a two year retention period. Massachusetts may be ahead of New Hampshire in its statutory articulation of the storage period, but it is my position that both are out of whack with what should be the guiding principle. One need look no further for that principle than what is required to be produced at least in federal court if you are a party to litigation there. To the extent state courts may be behind on this issue, be assured that they are catching up quickly. Emails are discoverable in every court, assuming they bear some pertinence to the case. In federal court, emails were one of the discoverable items that rule writers had in mind when they revised federal Rule 34(a) in 2006. That Rule includes “Electronically Stored Information” in its title as one of the things which parties may request in the discovery phase of a lawsuit.
In the Notes regarding the 2006 Amendments the authors state that the Rule is “expansive and includes any type of information that is stored electronically. A common example often sought in discovery is electronic communications, such as e-mail.” I would submit to you that all it will take to immediately change the policy is for the Boston Mayor’s office or the City of Nashua School District’s office to be involved in a single lawsuit where this email material is requested and is not able to be produced because it has been destroyed. That is because it is likely that the requesting party will seek sanctions against the nonproducing party, sanctions that are likely to be granted by the judge presiding over the case. The sanctions for such spoliation of evidence are of wide array, ranging from a minor slap on the wrist to harsh and eye-opening, for example facing the prospect of a jury being instructed by the judge that they can assume that the destroyed evidence was harmful to the nonproducing party’s case. Worse yet, there are instances where it is reported that the destroying party’s sanction was that they were simply and finally defaulted on the lawsuit as in game, set and match!
I suspect that one such lawsuit would quickly straighten out any question policy makers have about how long emails should and must be stored. As to the City of Nashua, I have no great fear that this problem, now uncovered, will not be quickly solved. This is because the new City Attorney is James McNamee, a bright and capable attorney who has spent thirty years in litigation, the first several in the office next door to mine when he was here at Hamblett & Kerrigan. I rest assured that with this problem out in the open, he will resolve the issue in a fashion that protects his client and the public now and going forward.
If you have a question about your company’s email policy or other electronic storage concerns, you should give one of the experienced lawyers at Hamblett & Kerrigan a call to set up a meeting to discuss and analyze the issues to make sure the issue is properly addressed.
Timothy G. Kerrigan is a director at Hamblett & Kerrigan, P.A. His present practice focuses on complex legal situations both in the litigation and in the ADR context. He is available as a litigator, client advocate or as an ADR neutral. Mr. Kerrigan is certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can reach Attorney Kerrigan by e-mail at tkerrigan@nashualaw.com
Thursday, November 5, 2009
Holiday Party Advice
With the arrival of the holiday season, there will be events and issues which employers and employees should think about in advance. If you attend a work holiday party, it is extremely important to remember to exhibit the same good judgment and discretion that you exhibit at work. While the party is a time to relax and socialize with your co-workers, including superiors and subordinates, it is certainly not a time to over-indulge in alcohol. It is important to remember that your co-workers will be watching and you have the potential to lose a great deal of respect and perhaps even your job if you allow alcohol to lead you to inappropriate behavior.
A company should act prudently to ensure that people do not get intoxicated at the company party and then get behind the wheel of an automobile. Make sure that there are lots of non-alcoholic drinks available. Providing taxi service might be a sensible option if alcohol is to be served. The loss of a good employee from alcohol-related injuries or criminal charges is a high price for a holiday event. Keep in mind that if the company serves alcohol to an intoxicated party patron, the company might be liable for any damage to others caused by the patron’s drunk driving.
During the holiday season, it is also important for co-workers exhibit respect for other’s religious beliefs. This certainly includes employers attempting to reasonably accommodate an employee’s legitimate requests for worship on a particular religious holiday. It is incumbent on the employee to give as much advance notice as possible to the employer and to be prepared to support the contention that the request is truly based upon religious reasons.
A final note to employers who may be considering terminating an employee’s employment because of a long-standing performance problem. Providing an employee a clear, final warning with a deadline in January often makes much more sense than terminating an employee during the holiday season. This not only helps to sustain employee morale during the holidays but also is consistent with three general concepts to consider in dealing with personnel; fairness, diligence, and dignity. Giving an employee a clear, final written warning about a long-standing performance problem (rather than a serious act of misconduct) fits both into the concepts of fairness and diligence. It would be more difficult for an employee to claim that the performance-based reason for being terminated was pretextual and that the real reason for termination was for some prohibited purpose when that employee had been given the chance to meet the employer’s clearly expressed expectations but did not. Finally, the more dignity and respect you show an employee before terminating his employment, the less likely he is to pursue a legal claim which, meritless or not, can be costly to the company in legal fees and in lost productivity.
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
A company should act prudently to ensure that people do not get intoxicated at the company party and then get behind the wheel of an automobile. Make sure that there are lots of non-alcoholic drinks available. Providing taxi service might be a sensible option if alcohol is to be served. The loss of a good employee from alcohol-related injuries or criminal charges is a high price for a holiday event. Keep in mind that if the company serves alcohol to an intoxicated party patron, the company might be liable for any damage to others caused by the patron’s drunk driving.
During the holiday season, it is also important for co-workers exhibit respect for other’s religious beliefs. This certainly includes employers attempting to reasonably accommodate an employee’s legitimate requests for worship on a particular religious holiday. It is incumbent on the employee to give as much advance notice as possible to the employer and to be prepared to support the contention that the request is truly based upon religious reasons.
A final note to employers who may be considering terminating an employee’s employment because of a long-standing performance problem. Providing an employee a clear, final warning with a deadline in January often makes much more sense than terminating an employee during the holiday season. This not only helps to sustain employee morale during the holidays but also is consistent with three general concepts to consider in dealing with personnel; fairness, diligence, and dignity. Giving an employee a clear, final written warning about a long-standing performance problem (rather than a serious act of misconduct) fits both into the concepts of fairness and diligence. It would be more difficult for an employee to claim that the performance-based reason for being terminated was pretextual and that the real reason for termination was for some prohibited purpose when that employee had been given the chance to meet the employer’s clearly expressed expectations but did not. Finally, the more dignity and respect you show an employee before terminating his employment, the less likely he is to pursue a legal claim which, meritless or not, can be costly to the company in legal fees and in lost productivity.
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
Thursday, October 8, 2009
Res Ipsa Loquitur And Watch Out Below!
A recent Massachusetts court decision is instructive as a reminder that you need more than just an “accident” to occur in order to have a claim against a third party for your injuries. The BMC Appellate Division ruled in Gosselin v. Colonial Shopping Center, et al. that there was no reasonable likelihood of proving any breach of a duty of reasonable care when a plaintiff was struck by falling ice and snow while on a walkway that was owned by a defendant shopping center and that fronted a defendant donut shop. Therefore, the appeals court found, the trial judge acted correctly in holding that the plaintiff could not recover damages from the defendants and awarded the defendants summary judgment.
The defendants had moved for summary judgment based on evidence gathered during discovery. While it was clear that while the plaintiff could show injury to herself, they claimed plaintiff could not show a breach of duty by either defendant. Plaintiff tried to preserve her claim by arguing that even without direct proof of negligence, the doctrine of res ipsa loquitur applied. The court pointed out the doctrine of res ipsa loquitur does no more than recognize that negligence and causation, like other facts, may be established by circumstantial evidence. Further, and more pointedly, the court disagreed with plaintiff's argument that an inference of negligence should be drawn from the fact that she was struck with ice and snow which she claimed came from the roof or awning of the premises. The doctrine of res ipsa loquitur applies only in cases in which the accident would not have happened, in the ordinary experience of mankind, without the negligence of the defendant or those for whom the defendant was responsible. Simply stated, evidence that an accident occurred without more is insufficient to satisfy the doctrine.
The case is helpful in reminding people that just because an accident happens does not make someone liable for your injuries. The plaintiff in Gosselin wanted to have the court find her case analogous to Graci v. Massachusetts Gas & Elec. Light Supply Co., 7 Mass. App. Ct. 221 (1979). In Graci , there were two plaintiffs who were standing on a sidewalk in front of a building when wood, bricks, glass and other debris fell from above and struck them. In that case the court found that such an accident “may be of a kind that in the ordinary course of things would not have happened in the absence of negligence on the part of the person in control of the agency or instrumentality causing it.” In essence the court was saying that it agreed that objects such as those in Graci do not ordinarily fall from buildings upon travelers if due care is exercised. The court, applying the doctrine of res ipsa loquitur, found that the fact that such objects fell was sufficient evidence to establish a lack of due care if no other adequate explanation of the falling otherwise appeared.
While the court in Gosselin agreed that the property owner's owed a duty of due care, the plaintiff failed to show any evidence indicating a breach of that duty and therefore the court did not follow the Graci ruling. As to her claim that the doctrine of res ipsa loquitur applied, the court found that this was not an appropriate application of the doctrine. Specifically, the court found that "[w]hile it may be unusual, in the absence of negligence, for wood and debris to fall from a building, the same cannot be said of snow, especially in New England .” Therefore, the court found that this was a situation where the doctrine of res ipsa loquitur did not apply, leaving the plaintiff to her burden of proof to identify the source of the ice and snow that struck her as a dangerous condition resulting from the defendants' negligence. The plaintiff was unable to so testify because she never observed the source of the ice and snow and therefore her case was summarily concluded by the court in favor of the defendants.
The lesson is simple. Accidents can happen and sometimes one is unable to prove someone breached a duty which caused the accident. If that is the case, as it was in Gosselin , the court will be apt to find that the plaintiff's claim “rested on nothing more than the mere occurrence of an accident, which is insufficient to establish the defendants' negligence.”
However, this analysis is not best accomplished by a layperson. It is a highly specialized examination and often requires a detailed analysis by experienced legal counsel. It is driven by the facts involved in a particular situation and may even require the examination of not only the lawyer but also by an expert in the particular field involved. This may include experts from the fields of construction, architecture, snow removal, other property maintenance specialists or accident reconstruction experts.
With many years of representing both plaintiffs and defendants involved in such situations. the personal injury attorneys at Hamblett & Kerrigan are highly skilled at managing the intricacies of analysis in personal injury claims. We have been successful in marshalling the available evidence favorable to an injured plaintiff seeking compensation for injuries due to negligence and providing, where appropriate, expert analysis and testimony to prove a breach of the duty of care. We have also been successful in defeating claims brought by injured parties against our clients by providing the court with a careful analysis that exposed the plaintiff's inability to prove negligence despite their injuries.
Timothy G. Kerrigan is a director at Hamblett & Kerrigan, P.A. His present practice focuses on complex legal situations both in the litigation and in the ADR context. He is available as a litigator, client advocate or as an ADR neutral. Mr. Kerrigan is certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can reach Attorney Kerrigan by e-mail at tkerrigan@nashualaw.com
The defendants had moved for summary judgment based on evidence gathered during discovery. While it was clear that while the plaintiff could show injury to herself, they claimed plaintiff could not show a breach of duty by either defendant. Plaintiff tried to preserve her claim by arguing that even without direct proof of negligence, the doctrine of res ipsa loquitur applied. The court pointed out the doctrine of res ipsa loquitur does no more than recognize that negligence and causation, like other facts, may be established by circumstantial evidence. Further, and more pointedly, the court disagreed with plaintiff's argument that an inference of negligence should be drawn from the fact that she was struck with ice and snow which she claimed came from the roof or awning of the premises. The doctrine of res ipsa loquitur applies only in cases in which the accident would not have happened, in the ordinary experience of mankind, without the negligence of the defendant or those for whom the defendant was responsible. Simply stated, evidence that an accident occurred without more is insufficient to satisfy the doctrine.
The case is helpful in reminding people that just because an accident happens does not make someone liable for your injuries. The plaintiff in Gosselin wanted to have the court find her case analogous to Graci v. Massachusetts Gas & Elec. Light Supply Co., 7 Mass. App. Ct. 221 (1979). In Graci , there were two plaintiffs who were standing on a sidewalk in front of a building when wood, bricks, glass and other debris fell from above and struck them. In that case the court found that such an accident “may be of a kind that in the ordinary course of things would not have happened in the absence of negligence on the part of the person in control of the agency or instrumentality causing it.” In essence the court was saying that it agreed that objects such as those in Graci do not ordinarily fall from buildings upon travelers if due care is exercised. The court, applying the doctrine of res ipsa loquitur, found that the fact that such objects fell was sufficient evidence to establish a lack of due care if no other adequate explanation of the falling otherwise appeared.
While the court in Gosselin agreed that the property owner's owed a duty of due care, the plaintiff failed to show any evidence indicating a breach of that duty and therefore the court did not follow the Graci ruling. As to her claim that the doctrine of res ipsa loquitur applied, the court found that this was not an appropriate application of the doctrine. Specifically, the court found that "[w]hile it may be unusual, in the absence of negligence, for wood and debris to fall from a building, the same cannot be said of snow, especially in New England .” Therefore, the court found that this was a situation where the doctrine of res ipsa loquitur did not apply, leaving the plaintiff to her burden of proof to identify the source of the ice and snow that struck her as a dangerous condition resulting from the defendants' negligence. The plaintiff was unable to so testify because she never observed the source of the ice and snow and therefore her case was summarily concluded by the court in favor of the defendants.
The lesson is simple. Accidents can happen and sometimes one is unable to prove someone breached a duty which caused the accident. If that is the case, as it was in Gosselin , the court will be apt to find that the plaintiff's claim “rested on nothing more than the mere occurrence of an accident, which is insufficient to establish the defendants' negligence.”
However, this analysis is not best accomplished by a layperson. It is a highly specialized examination and often requires a detailed analysis by experienced legal counsel. It is driven by the facts involved in a particular situation and may even require the examination of not only the lawyer but also by an expert in the particular field involved. This may include experts from the fields of construction, architecture, snow removal, other property maintenance specialists or accident reconstruction experts.
With many years of representing both plaintiffs and defendants involved in such situations. the personal injury attorneys at Hamblett & Kerrigan are highly skilled at managing the intricacies of analysis in personal injury claims. We have been successful in marshalling the available evidence favorable to an injured plaintiff seeking compensation for injuries due to negligence and providing, where appropriate, expert analysis and testimony to prove a breach of the duty of care. We have also been successful in defeating claims brought by injured parties against our clients by providing the court with a careful analysis that exposed the plaintiff's inability to prove negligence despite their injuries.
Timothy G. Kerrigan is a director at Hamblett & Kerrigan, P.A. His present practice focuses on complex legal situations both in the litigation and in the ADR context. He is available as a litigator, client advocate or as an ADR neutral. Mr. Kerrigan is certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can reach Attorney Kerrigan by e-mail at tkerrigan@nashualaw.com
Minimize Chances To Steal From Company
Employers need to recognize the reality that not all of their workers will be honest. They should take precautions to minimize the chance that a worker can steal from the company.
One of the most costly thefts to an employer can be embezzlement of funds by someone with access to the company bank account. The most basic example of this is when someone with check writing authority on the company account writes checks to himself. If he has first access to the bank account statements when they come in, he can destroy the processed check(s) payable to himself that are enclosed with the statements and enter a false payee into the company's records. Those payments will then appear to be to legitimate suppliers or vendors of the company.
A simple procedure to minimize this type of theft is to direct the company's bank to send all statements directly to the house of a trusted officer in the company who neither has check-signing authority nor enters accounts payable into the company records. The officer will review bank statements along with the processed checks for any irregularities. once reviewed he will turn them over to the company's accounting department for processing and recording.
Another source of worker theft is in inventory, equipment and supplies. Sporadic, unannounced internal inventory audits of equipment and supplies usually turn up any irregularities that then can be investigated further as necessary.
As for expenses, it is appropriate to require receipts and expense reports for expenses over a particular dollar amount to be submitted by workers prior to reimbursement. It would again be prudent to conduct sporadic, unannounced internal audits of employees' expense reports to confirm that receipts submitted for reimbursement on expenses incurred on a business trip coincide with the date and location of an actual trip.
All of such protective measures may not only may catch a dishonest worker before he has an opportunity to further damage the company but also act as a deterrent for those who may be tempted to consider stealing from the company.
Employers should understand that not all worker embezzlement matters are criminally prosecuted but may be handled with private and confidential restitution agreements between the employer and the worker. These agreements do not become public so long as the worker complies with the payment schedule of the restitution agreement. Since many company owners after terminating a dishonest worker are more interested in restitution than the retribution, such agreements sometimes make sense. However, business owners should be aware that such thefts, while in no manner commonplace, are more prevalent than as published in the media.
Employers should acknowledge that they are not immune to being a victim of such thefts and should organize their procedures accordingly.
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
One of the most costly thefts to an employer can be embezzlement of funds by someone with access to the company bank account. The most basic example of this is when someone with check writing authority on the company account writes checks to himself. If he has first access to the bank account statements when they come in, he can destroy the processed check(s) payable to himself that are enclosed with the statements and enter a false payee into the company's records. Those payments will then appear to be to legitimate suppliers or vendors of the company.
A simple procedure to minimize this type of theft is to direct the company's bank to send all statements directly to the house of a trusted officer in the company who neither has check-signing authority nor enters accounts payable into the company records. The officer will review bank statements along with the processed checks for any irregularities. once reviewed he will turn them over to the company's accounting department for processing and recording.
Another source of worker theft is in inventory, equipment and supplies. Sporadic, unannounced internal inventory audits of equipment and supplies usually turn up any irregularities that then can be investigated further as necessary.
As for expenses, it is appropriate to require receipts and expense reports for expenses over a particular dollar amount to be submitted by workers prior to reimbursement. It would again be prudent to conduct sporadic, unannounced internal audits of employees' expense reports to confirm that receipts submitted for reimbursement on expenses incurred on a business trip coincide with the date and location of an actual trip.
All of such protective measures may not only may catch a dishonest worker before he has an opportunity to further damage the company but also act as a deterrent for those who may be tempted to consider stealing from the company.
Employers should understand that not all worker embezzlement matters are criminally prosecuted but may be handled with private and confidential restitution agreements between the employer and the worker. These agreements do not become public so long as the worker complies with the payment schedule of the restitution agreement. Since many company owners after terminating a dishonest worker are more interested in restitution than the retribution, such agreements sometimes make sense. However, business owners should be aware that such thefts, while in no manner commonplace, are more prevalent than as published in the media.
Employers should acknowledge that they are not immune to being a victim of such thefts and should organize their procedures accordingly.
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
Thursday, October 1, 2009
It's Simple: Lying Is Lying
If a company requests or demands that an employee create a story or change a document to bolster the company's posture in a lawsuit, the worker must refuse. Falsifying evidence in a legal proceeding is a crime and it is a crime for anyone who participates in such acts.
There are many variations of falsifying information that may occur in a business litigation situation. Falsifying a writing created by someone else may be the crime of forgery even if it does not involve the signing of another's name. For example, in a contract lawsuit the plaintiff states the contract gives him certain rights against the defendant company. Defendant company requests its worker to change a written term of the contract (or insert a different page or a new appendix) so that it appears that changed term was an original term when the parties signed the contract. If the worker does so, he has committed forgery even though he has not signed the plaintiff's name to the contract.
Testifying falsely in an official proceeding may constitute the crime of perjury or a false swearing. Please note that an individual's testimony that "I don't remember" when he does in fact remember is as false as misrepresenting how certain events actually transpired.
Altering, destroying, concealing, or removing evidence or creating false evidence to hide the truth in an official proceeding or investigation may also constitute the crime of falsifying evidence. For example, shredding documents with the intent to prevent plaintiff from getting damaging evidence against your employer would constitute the crime of falsifying evidence. This type of spoliation of evidence, when presented to the court in the civil trial, may also result in sanctions against the defendant including the possibility that a verdict for the plaintiff may be entered on all or part of his claim without a trial because of the spoliation.
If a worker (including a company officer or other management) attempts to induce a person to provide false testimony, withhold testimony, or to make themselves absent from any proceeding or investigation to which he has been summoned, this can constitute the crime of witness tampering. You do not have to intimidate or threaten the witness to be guilty of this crime.
If a worker is asked by an employer to assist in a criminal act, the worker must refuse. It would be wise to immediately seek legal counsel to both determine the best way to inform the appropriate governmental authorities and to be advised of appropriate legal remedies, including rights under the New Hampshire Whistleblowers' Protection Act, RSA-275-E, should the employer retaliate against that worker.
If a worker has been instructed by her employer to falsify her time records to only show up to 40 hours per week rather than overtime, for which she is entitled to overtime pay equal to 1½ times her hourly rate, she still has a valid overtime claim and she should speak to an attorney about her options. The employer is responsible for ensuring accurate time records are kept and if the worker, at the employer's direction, is indicating fewer hours on her time records than actually worked, she is the victim not the wrongdoer and should be treated as such by applicable state and federal governmental agencies and the courts.
Falsifying evidence is a crime in both civil or criminal proceedings. Employers must understand that, in addition to possible criminal penalties, the consequences of the discovery of an attempt to falsify evidence by the opposing party in civil litigation might be that this becomes the best evidence against the employer. It may be used to show legal fault. In certain situations it may even entitle the opposing party to a range of court-imposed sanctions including a judgment in that party's favor, an award of all or a portion of attorney's fees incurred by that party, and/or an award of punitive damages.
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
There are many variations of falsifying information that may occur in a business litigation situation. Falsifying a writing created by someone else may be the crime of forgery even if it does not involve the signing of another's name. For example, in a contract lawsuit the plaintiff states the contract gives him certain rights against the defendant company. Defendant company requests its worker to change a written term of the contract (or insert a different page or a new appendix) so that it appears that changed term was an original term when the parties signed the contract. If the worker does so, he has committed forgery even though he has not signed the plaintiff's name to the contract.
Testifying falsely in an official proceeding may constitute the crime of perjury or a false swearing. Please note that an individual's testimony that "I don't remember" when he does in fact remember is as false as misrepresenting how certain events actually transpired.
Altering, destroying, concealing, or removing evidence or creating false evidence to hide the truth in an official proceeding or investigation may also constitute the crime of falsifying evidence. For example, shredding documents with the intent to prevent plaintiff from getting damaging evidence against your employer would constitute the crime of falsifying evidence. This type of spoliation of evidence, when presented to the court in the civil trial, may also result in sanctions against the defendant including the possibility that a verdict for the plaintiff may be entered on all or part of his claim without a trial because of the spoliation.
If a worker (including a company officer or other management) attempts to induce a person to provide false testimony, withhold testimony, or to make themselves absent from any proceeding or investigation to which he has been summoned, this can constitute the crime of witness tampering. You do not have to intimidate or threaten the witness to be guilty of this crime.
If a worker is asked by an employer to assist in a criminal act, the worker must refuse. It would be wise to immediately seek legal counsel to both determine the best way to inform the appropriate governmental authorities and to be advised of appropriate legal remedies, including rights under the New Hampshire Whistleblowers' Protection Act, RSA-275-E, should the employer retaliate against that worker.
If a worker has been instructed by her employer to falsify her time records to only show up to 40 hours per week rather than overtime, for which she is entitled to overtime pay equal to 1½ times her hourly rate, she still has a valid overtime claim and she should speak to an attorney about her options. The employer is responsible for ensuring accurate time records are kept and if the worker, at the employer's direction, is indicating fewer hours on her time records than actually worked, she is the victim not the wrongdoer and should be treated as such by applicable state and federal governmental agencies and the courts.
Falsifying evidence is a crime in both civil or criminal proceedings. Employers must understand that, in addition to possible criminal penalties, the consequences of the discovery of an attempt to falsify evidence by the opposing party in civil litigation might be that this becomes the best evidence against the employer. It may be used to show legal fault. In certain situations it may even entitle the opposing party to a range of court-imposed sanctions including a judgment in that party's favor, an award of all or a portion of attorney's fees incurred by that party, and/or an award of punitive damages.
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
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