Justia Labor & Employment Law Opinion Summaries

Petitioners Northern New England Telephone Operations, LLC and FairPoint Logistics, Inc. (collectively, “FairPoint”), appealed the final decision of the New Hampshire Department of Employment Security (NHES), claiming that it erred in rulings that: (1) upheld the decision of the commissioner of NHES to reopen the ruling of the appeal tribunal which found (a) certain unionized employees of FairPoint (claimants) were not entitled to collect unemployment benefits during the period they were on strike against the company because the strike resulted in a “stoppage of work” and (b) strike pay received by some of the workers constituted income deductible from their benefits; (2) affirmed a subsequent order of a second appeal tribunal which found that benefits were payable because the strike did not result in a stoppage of work; and (3) reversed the second tribunal’s determination that strike pay was deductible from benefits. After review, the New Hampshire Supreme Court reversed the appellate board’s decision, reinstated in part the order of the first appeal tribunal, and found it unnecessary to address the issue of strike pay. The Court found the commissioner erred in his determination that the first tribunal’s decision resulted from a mistake of law. Contrary to the commissioner’s view that the tribunal based its decision merely on what he described (but did not define) as a “negative impact” analysis, the Court concluded the tribunal had sufficient evidence before it from which it could find that the strike resulted in a substantial curtailment of FairPoint’s operations and thus constituted a stoppage of work under RSA 282-A:36. For the same reason, the Court also concluded the appellate board erred as a matter of law insofar as it ultimately upheld the commissioner’s decision to reopen and did not affirm the decision of the first tribunal with respect to the stoppage of work issue. Because the stoppage of work disqualified claimants from receiving unemployment benefits during the period when they were on strike, it was unnecessary to address the issue of whether the strike pay received by some of the claimants constituted deductible wages. View "Appeal of FairPoint Logistics, Inc." on Justia Law

This appeal stemmed from respondent’s, the New Hampshire Division of State Police (Division), termination of petitioner State Trooper David Appleby, based on petitioner’s abandonment of his extra-duty detail escorting an oversized truck and his conduct in the subsequent investigations of that incident. Petitioner worked an extra-duty detail in which he was assigned to escort an oversized truck from Claremont to the Massachusetts border in Plaistow. The truck’s departure was delayed due to mechanical problems, and petitioner became concerned that he would not be able to complete the escort and also arrive on time for his regularly scheduled duties at Troop F, located in northern New Hampshire. After unsuccessfully seeking substitute coverage, petitioner escorted the truck to exit 7 on Route 101. In order to arrive on time for his regular duties, petitioner abandoned the detail before the truck reached the Massachusetts border. Petitioner appealed his termination to the New Hampshire Personnel Appeals Board (PAB), which reinstated him. The Division appealed, arguing that the PAB’s decision to reinstate petitioner was unjust and unreasonable because: (1) the standard set forth in RSA 21-I:58, I (2012) did not permit the PAB to substitute its judgment for that of the appointing authority; and (2) the PAB failed to consider the factors provided for in the applicable personnel rule and relied upon by the Division in reaching its termination decision, including the petitioner’s prior disciplinary history. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "Appeal of New Hampshire Division of State Police" on Justia Law

Plaintiff Steven Grady appealed a superior court order granting summary judgment to defendants, Jones Lang LaSalle Construction Company, Inc. (Jones Lang), and Liberty Mutual Insurance Company and Liberty Mutual Group, Inc. (collectively, “Liberty Mutual”), in this tort action for damages on the ground that defendants did not owe plaintiff a duty of care to provide supervision, training, or safety equipment. In 2012, Liberty Mutual contracted with Jones Lang to complete a construction project on premises owned by Liberty Mutual in Dover (the general contract). In January 2013, Jones Lang subcontracted the roofing work for the project (the subcontract) to A&M Roofing and Sheet Metal Company, Inc. (A&M). Plaintiff was an A&M employee when A&M began working on the project. On a cold, windy February 21, 2013, plaintiff began to perform flashing and insulation work on the roof. Because of the cold weather, plaintiff wore cotton gloves to keep his hands warm while he worked. After igniting a torch a few times with a lighter without incident, he lit the torch again as a gust of wind came, and the glove on his right hand ignited. As a result, plaintiff was injured. Sometime thereafter, plaintiff received workers’ compensation benefits from A&M for his injuries. In February 2016, he brought the present action for negligence against defendants. In May 2017, the trial court granted summary judgment to the defendants, ruling that they did not owe a duty of care to the plaintiff. Finding no reversible error in that judgment, the New Hampshire Supreme Court affirmed. View "Grady v. Jones Lang Lasalle Construction Co., Inc." on Justia Law

Petitioner Nicole Collins appealed a New Hampshire Personnel Appeals Board (board) decision upholding the New Hampshire Department of Health and Human Services’ (HHS) decision to dismiss her from employment. Prior to her termination, she was given letters of warning in April, October, and November 2015, for failing to meet various work standards and working unauthorized overtime. On April 7, 2016, pursuant to New Hampshire Administrative Rules, petitioner attended an “intent to discipline” meeting with her regional manager and the chief of operations. At this meeting, the regional manager read from prepared notes outlining evidence, including the precise case files, dates, and instances, that she believed supported a decision to dismiss petitioner. Petitioner had an opportunity to refute this evidence at the meeting. According to petitioner, at the meeting, she also requested the documentation that HHS was relying upon in making its decision to terminate her, but HHS did not provide her with the documents at that time. On April 20, HHS issued a letter of dismissal, which included over 100 pages of evidence supporting the decision. Petitioner appealed this decision to the board. In her appeal to the board, petitioner argued HHS violated Per 1002.08(d) and the New Hampshire Supreme Court's decision in Appeal of Boulay, 142 N.H. 626 (1998), when HHS did not provide her with the documents to support its dismissal decision at the meeting. The board conducted a hearing and found that petitioner’s dismissal was lawful. The Supreme Court, after its review, determined petitioner failed to demonstrate that the board’s affirmation of HHS’ dismissal decision was unreasonable or unlawful, and affirmed. View "Appeal of Nicole Collins" on Justia Law

Petitioner, the State Employees’ Association of New Hampshire/Service Employees’ International Union, Local 1984 (Union), appealed a New Hampshire Public Employee Labor Relations Board (PELRB) order dismissing its unfair labor practice complaint against respondent, the Community College System of New Hampshire (CCSNH). The Union argued the PELRB erred in ruling that CCSNH was not obligated to: (1) bargain over wages for on-campus tutoring services performed by adjunct faculty; and (2) compensate an adjunct faculty member for lost tutoring income resulting from his participation in collective bargaining negotiations. The New Hampshire Supreme Court concluded that the tutoring services at issue here were, if anything, more closely related to the normal adjunct faculty members’ duties than the extracurricular activities in Appeal of Berlin Education Association, 125 N.H. 779 (1984) were related to the teachers’ regular duties. "Thus, the result reached in Berlin applies a fortiori to control the outcome here. Either way, the PELRB erred as a matter of law." Because the plain language of RSA 273-A:11, II obligated CCSNH to afford “[a] reasonable number of employees who act as representatives of the bargaining unit . . . a reasonable opportunity to meet” for collective bargaining negotiations “during working hours without loss of compensation or benefits,” the Supreme Court agreed with the Union that CCSNH had to compensate the adjunct faculty for the tutoring hours he missed while attending such negotiations. View "Appeal of State Employees Association/Service Employees International Union, Local 1984" on Justia Law

Appellant International Business Machines Corporation (IBM) appealed a superior court order upholding a wage claim decision issued by the New Hampshire Department of Labor (DOL) in favor of appellee Gary Khoury. As part of his work, Khoury sold IBM’s products to the federal government. Khoury testified that, prior to July 2014, IBM paid its sales representatives commissions based solely upon revenue-generating sales. According to Khoury, under this arrangement, sales representatives lacked an incentive to promote the deployment of IBM products that had previously been sold to an intermediary business partner (for which they received no commission), and a number of sales representatives had quit and found other jobs within IBM. In July 2014, IBM rolled out a new pilot program that allowed sales representatives to earn commissions on both the sale and deployment of IBM’s products. Under this program, sales representatives would receive a “primary” commission for reaching a revenue or sales quota and a “secondary” commission for reaching a deployment quota. Khoury testified that, approximately every six months, IBM sent each sales representative an individualized Incentive Plan Letter (IPL) defining the method by which the sales representative’s commissions would be calculated for sales and new deployments. IBM presented Khoury with an IPL for the period of July 1 to December 31, 2014. Pursuant to the terms of the IPL, Khoury would receive the “secondary” commission at issue in this case after meeting a quota of $571,000 for certain specified signings. The IPL contained several prominent disclaimers. By the end of the IPL period, he had met and surpassed his quota for the specified signings. At the DOL hearing, he testified that, in December 2014, his manager informed him that this entitled him to a commission payment of $154,124.21. That same month, he received $47,619.23 in advances from IBM towards this commission. Khoury testified that he subsequently made repeated unsuccessful inquiries about the additional funds. In March 2015, Khoury filed a wage claim with the DOL for $106,504.65, the balance of the commission. One month later, Khoury was informed that IBM planned to change his IPL terms by increasing the original quota from $571,000 to $1,000,000. Khoury testified that he was told that he could expect to receive a final payment of approximately $35,000 to $36,000. He stated that he then received a payment of $34,558.71 in May. Upon receiving this payment, Khoury reduced his wage claim against IBM from $106,504.65 to $71,946.27. The New Hampshire Supreme Court found no reversible error in the superior court's order, and affirmed it. View "International Business Machines Corp. v. Khoury" on Justia Law

The Nashua School District (District) appealed an order of the New Hampshire Public Employee Labor Relations Board (PELRB) finding that the District committed an unfair labor practice by refusing to bargain with the American Federation of State, County, and Municipal Employees (AFSCME), Council 93, Local 365, Nashua Custodial/Janitorial Staff (Union) concerning the District’s plan to subcontract custodial work at the expiration of the term of the collective bargaining agreement (CBA) between the parties. “Reduced to its essence,” the issue before the New Hampshire Supreme Court in this case was whether its prior decisions in Appeal of City of Nashua Board of Education, 141 N.H. 768 (1997), and Appeal of Hillsboro-Deering School District, 144 N.H. 27 (1999), precluded a public employer from ever unilaterally determining to subcontract work that is performed by Union members under a CBA. The Union, in essence, argued that they did; the District argues that they did not. The Supreme Court agreed with the District, and reversed the Board’s contrary conclusion. View "Appeal of Nashua School District" on Justia Law

Plaintiff Daniel Barry appealed a jury verdict in favor of defendants the New Hampshire Department of Health and Human Services (department) and William Fenniman, Jr., the director of the Division of Juvenile Justice Services during the relevant time period. Plaintiff worked as a youth counselor at the Sununu Youth Services Center (SYSC) until defendants terminated him, claiming that he had used excessive force against a youth resident and had failed to file a report regarding the incident. After the Personnel Appeals Board (PAB) reinstated him, plaintiff filed suit at issue here, alleging a claim for wrongful termination against the department, and a claim for interference with plaintiff’s right to freedom of expression under RSA chapter 98-E against the department and Fenniman in his official and individual capacities. On appeal, plaintiff argued the superior court erred when it: (1) declined to give collateral estoppel effect to the PAB’s findings that plaintiff had not used unreasonable or excessive force against the resident or violated SYSC policies; and (2) allowed defendants’ expert to testify regarding the reasonableness of plaintiff’s use of force. Defendants cross-appealed, arguing the superior court erred when it: (1) concluded that an employee protected by state personnel laws and a collective bargaining agreement could bring a claim for wrongful termination; and (2) declined to make factual findings to resolve the defendants’ motion to dismiss upon the ground of sovereign immunity. The New Hampshire Supreme Court affirmed the trial court’s rulings with respect to the issues raised by plaintiff in his appeal. As a result, the Court did not address the issues raised in defendants’ cross-appeal. View "Barry v. New Hampshire Department of Health &Human Services" on Justia Law

Petitioner Beverly Desmarais appealed the decision of the New Hampshire Compensation Appeals Board (CAB) denying her request for attorney’s fees and costs that she incurred in litigating a fee dispute with the respondents, Utica National Insurance Group (Utica) and AMI Graphics. The CAB determined that, although the Workers’ Compensation Law entitled the petitioner to attorney’s fees and costs associated with litigating the merits of her workers’ compensation claim, it did not further entitle her to fees and costs incurred in successfully litigating the fee dispute. The New Hampshire Supreme Court reversed and remanded, finding that the evident purpose of paragraph VI of RSA 281-A:44 was to encourage claimants to obtain, and attorneys to provide, representation in a certain class of disputes regarding workers’ compensation benefits. The Court remanded to the CAB for a determination as to the reasonableness of the additional fees and costs that the petitioner incurred in litigating the fees and costs issue at the administrative level. Any party aggrieved by the CAB’s order on fees and costs may appeal to the Supreme Court pursuant to RSA chapter 541. View "Appeal of Beverly Desmarais" on Justia Law

Plaintiff Beverly Cluff-Landry appealed a Superior Court order dismissing her case against defendant Roman Catholic Bishop of Manchester d/b/a St. Christopher School (the school). Two new students enrolled in the Pre-K program at the beginning of the 2011-2012 academic year, each of whom exhibited defiant behaviors, including “daily kicking, hitting, slapping, punching, spitting, biting, screaming, throwing things, and verbal abuse. Plaintiff reported to the principal “her concerns that the school was not adequately set up to handle [one of the students] due to his unsafe behaviors and the school’s inability to keep the other students safe, and that the behavior was in violation of the student-parent handbook.” In response to the plaintiff’s concerns, the principal “simply laughed.” The plaintiff continued to complain to the principal about the student, but the principal took no action. After the parents of a student complained that the defiant student was bullying their daughter, the principal expelled the defiant student. Thereafter, the principal’s alleged retaliation toward the plaintiff “escalated.” The principal ultimately placed the plaintiff on a “Teacher Improvement Plan.” She was given notice of the school’s intent to not renew her contract for the following school year in April; plaintiff’s last day of work was June 15, 2012. Plaintiff filed suit against the school alleging: (1) violations under the New Hampshire Whistleblowers’ Protection Act, by failing to renew her contract after she reported violations of school and public policies; (2) wrongful discharge, for failing to renew her contract; and (3) slander, based upon the principal’s comments to A&T. The school moved to dismiss, arguing that: (1) plaintiff’s factual allegations were insufficient to support a violation of the Act; (2) the wrongful discharge claim was barred by the statute of limitations, and also failed because the plaintiff’s employment was governed by a one-year contract; and (3) the alleged defamatory statements were not actionable because plaintiff consented to their publication. Following a hearing, the trial court granted the school’s motion. Finding no reversible error in the Superior Court’s judgment, the Supreme Court affirmed. View "Cluff-Landry v. Roman Catholic Bishop of Manchester" on Justia Law