Revision: Nov. 6, 2017, 11:07 a.m.
HB 1330 - AS INTRODUCED
HOUSE BILL 1330
SPONSORS: Rep. Richardson, Coos 4
COMMITTEE: Labor, Industrial and Rehabilitative Services
This bill establishes a procedure for the wrongful discharge of an employee.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eighteen
Be it Enacted by the Senate and House of Representatives in General Court convened:
Wrongful Discharge From Employment
275:77 Definitions. In this subdivision:
I. "Constructive discharge" means the voluntary termination of employment by an employee because of a situation created by an act or omission of the employer which an objective, reasonable person would find so intolerable that voluntary termination is the only reasonable alternative. Constructive discharge shall not mean voluntary termination because of an employer's refusal to promote the employee or improve wages, responsibilities, or other terms and conditions of employment.
II. "Discharge" means constructive discharge and any other termination of employment, including resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason.
III. "Employee" means a person who works for another for hire. The term shall not include a person who is an independent contractor.
IV. "Fringe benefits" means the value of any employer-paid vacation leave, sick leave, medical insurance plan, disability insurance plan, life insurance plan, and pension benefit plan in force on the date of the termination.
V. "Good cause" means reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason.
VI. "Lost wages" means the gross amount of wages that would have been reported to the Internal Revenue Service as gross income on form W-2 and includes additional compensation deferred at the option of the employee.
VII. "Public policy" means a policy in effect at the time of the discharge concerning the public health, safety, or welfare established by constitutional provision, statute, or administrative rule.
275:78 Elements of Wrongful Discharge. A discharge is wrongful only if:
I. It was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy;
II. The discharge was not for good cause and the employee had completed the employer's probationary period of employment; or
III. The employer violated the express provisions of its own written personnel policy.
I. If an employer has committed a wrongful discharge, the employee may be awarded lost wages and fringe benefits for a period not to exceed 3 years from the date of discharge, together with interest thereon. Interim earnings, including amounts the employee could have earned with reasonable diligence, shall be deducted from the amount awarded for lost wages.
II. The employee may recover punitive damages otherwise allowed by law if it isestablished by clear and convincing evidence that the employer engaged in actual fraud or actual malice in the discharge of the employee in violation of RSA 275:78, I.
III. There shall be no right under any legal theory to damages for wrongful discharge under this subdivision for pain and suffering, emotional distress, compensatory damages, punitive damages, or any other form of damages, except as provided for in this section.
275:80 Limitation of Actions.
I. An action under this subdivision shall be filed within one year after the date of discharge.
II. If an employer maintains written internal procedures, other than those specified in paragraph III under which an employee may appeal a discharge within the organizational structure of the employer, the employee shall first exhaust those procedures prior to filing an action under this subdivision. The employee's failure to initiate or exhaust available internal procedures shall be a defense to an action brought under this subdivision. If the employer's internal procedures are not completed within 90 days from the date the employee initiates the internal procedures, the employee may file an action under this subdivision and, for purposes of this section, the employer's internal procedures shall be considered exhausted. The limitation period in paragraph I shall be tolled until the internal procedures are exhausted. The provisions of the employer's internal procedures shall not extend the limitation period in paragraph I for more than 120 days.
III. If the employer maintains written internal procedures under which an employee may appeal a discharge within the employer's organizational structure, the employer shall, within 7 days of the date of the discharge, notify the discharged employee of the existence of such procedures and shall supply the discharged employee with a copy of the procedures. If the employer fails to comply with this paragraph, the provisions of paragraph II shall not apply to the employee.
275:81 Exemptions. This subdivision shall not apply to a discharge:
I. That is subject to any other state or federal law that provides a procedure or remedy for contesting the dispute. Such laws include those that prohibit discharge for filing complaints, charges, or claims with administrative bodies or that prohibit unlawful discrimination based on race, national origin, sex, age, handicap, creed, religion, political belief, color, marital status, and other similar grounds.
II. Of an employee covered by a written collective bargaining agreement or a written contract of employment for a specific term.
275:82 Preemption of Common-law Remedies. Except as provided in this subdivision, no claim for discharge shall arise from tort or express or implied contract.
I. Pursuant to a written agreement of the parties, a dispute that otherwise could be adjudicated under this subdivision may be resolved by final and binding arbitration as provided in this section.
II. An offer to arbitrate shall be in writing and contain the following provisions:
(a) A neutral arbitrator shall be selected by mutual agreement or, in the absence of agreement, as provided in RSA 542.
(b) The arbitration shall be governed by RSA 542. If there is a conflict between RSA 542 and this subdivision, this subdivision shall control.
(c) A statement that the arbitrator agrees to comply with RSA 542 and this subdivision.
III. If a complaint is filed under this subdivision, the offer to arbitrate shall be made within 60 days after service of the complaint and the respondent may accept in writing within 30 days after the date the offer is made.
IV. A party who makes a valid offer to arbitrate that is not accepted by the other party and who prevails in an action under this subdivision shall be entitled to reasonable attorney fees incurred subsequent to the date of the offer.
V. A discharged employee who makes a valid offer to arbitrate that is accepted by the employer and who prevails in such arbitration is entitled to have the arbitrator's fee and all costs of arbitration paid by the employer.
VI. If a valid offer to arbitrate is made and accepted, arbitration is the exclusive remedy for the wrongful discharge dispute and there is no right to bring or continue a lawsuit under this subdivision.