Chapter 275-E: Whistleblowers' Protection Act

In this chapter:

I. "Employee" means and includes every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, but shall not include any person exempted from the definition of employee as stated in RSA 281-A:2, VI(b)(2), (3), or (4), or RSA 281-A:2, VII(b), or a person providing services as part of a residential placement for individuals with developmental, acquired, or emotional disabilities, or any person who meets all of the following criteria:

(a) The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter.

(b) The person has control and discretion over the means and manner of performance of the work, in that the result of the work, rather than the means or manner by which the work is performed, is the primary element bargained for by the employer.

(c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to completion schedule, range of work hours, and maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented.

(d) The person hires and pays the person's assistants, if any, and to the extent such assistants are employees, supervises the details of the assistants' work.

(e) The person holds himself or herself out to be in business for himself or herself or is registered with the state as a business and the person has continuing or recurring business liabilities or obligations.

(f) The person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work.

(g) The person is not required to work exclusively for the employer.

II. "Employer" means an individual, partnership, association, corporation, legal representative, trustee, receiver, trustee in bankruptcy, governmental entity, and any common carrier who employs any person. Employer shall include any person acting in the interest of an employer directly or indirectly.

III. "Governmental entity" means any branch, department, commission, bureau, agency, or agent of the government of this state or a political subdivision of this state.

I. No employer shall harass, abuse, intimidate, discharge, threaten, or otherwise discriminate against any employee regarding compensation, terms, conditions, location, or privileges of employment because:

(a) The employee, in good faith, reports or causes to be reported, verbally or in writing, what the employee has reasonable cause to believe is a violation of any law or rule adopted under the laws of this state, a political subdivision of this state, or the United States; or

(b) The employee objects to or refuses to participate in any activity that the employee, in good faith, believes is a violation of the law; or

(c) The employee, in good faith, participates, verbally or in writing, in an investigation, hearing, or inquiry conducted by any governmental entity, including a court action, which concerns allegations that the employer has violated any law or rule adopted under the laws of this state, a political subdivision of this state, or the United States.

II. An aggrieved employee may bring a civil suit within 3 years of the alleged violation of this section. The court may order reinstatement and back-pay, as well as reasonable attorney fees and costs, to the prevailing party.

No employer shall discharge, threaten or otherwise discriminate against any employee regarding such employee's compensation, terms, conditions, location, or privileges of employment because the employee has refused to execute a directive which in fact violates any law or rule adopted under the laws of this state, a political subdivision of this state, or the United States.

I. Any employee who alleges a violation of rights under RSA 275-E:2 or 3, and who has first made a reasonable effort to maintain or restore such employee's rights through any grievance procedure or similar process available at such employee's place of employment, may obtain a hearing with the commissioner of labor or a designee appointed by the commissioner. Following such hearing, the labor commissioner or the designee appointed by such commissioner shall render a judgment on such matter, and shall order, as the commissioner or his designee considers appropriate, reinstatement of the employee, the payment of back pay, fringe benefits and seniority rights, any appropriate injunctive relief, or any combination of these remedies.

II. Decisions rendered by the commissioner of labor under paragraph I may be appealed pursuant to RSA 541.

This chapter shall not be construed to diminish or impair either the rights of a person under any collective bargaining agreement or any common law rights.

This chapter shall not be construed to require an employer to compensate an employee for participation in an investigation, hearing or inquiry held by a governmental entity.

Every employer shall post such notices as are prescribed by the commissioner of labor as a means of keeping such employer's employees informed of their protections and obligations under this chapter. The commissioner of labor shall adopt rules, under RSA 541-A, relative to the form, content, and placement of such notices. Failure to comply with the provisions of this section or rules adopted by the commissioner of labor shall be a violation for each day of noncompliance.

I. The department of labor shall have the authority to receive and investigate complaints or information from any public employee concerning the possible existence of any activity constituting fraud, waste, or abuse in the expenditure of any public funds, whether state or local, or relating to programs and operations involving the procurement of any supplies, services, or construction by governmental entities within the state.

II. The labor commissioner shall make an initial determination as to whether a complaint received under paragraph I is without merit, unfounded, or in need of further information, in which case, the complaint may be dismissed without further action, or held until such time as additional information is received, or dismissed if no further information is received within the time period specified by the commissioner. If the labor commissioner makes an initial determination that the complaint has merit and warrants further investigation, the labor commissioner may undertake such investigation or refer the matter to the appropriate enforcement authority. The identity of the person who filed the complaint shall not be disclosed without his or her written consent, unless such disclosure is to a law enforcement agency that is conducting a criminal investigation.

III. If the labor commissioner undertakes further investigation of the complaint, the commissioner shall have access to all records, confidential or otherwise, reports, audits, reviews, papers, books, documents, recommendations, and correspondence, including information or data that is deemed necessary by the commissioner to carry out the investigation. The labor commissioner may request such information, cooperation, and assistance from any state, county, or local governmental agency and may coordinate activities with the attorney general's office. In carrying out his or her duties and responsibilities, the labor commissioner shall immediately report to the attorney general and either the United States Attorney or local enforcement agency any suspected violation of state or federal criminal law.

IV. No governmental entity shall take any retaliatory action against a public employee who, in good faith, files a complaint under this section and the public employee shall be afforded all protections under RSA 275-E:2.

V. The labor commissioner shall adopt rules under RSA 541-A relative to the complaint investigation process established in this section, including the administrative procedure used for responding to complaints, gathering additional information, and rendering decisions.

VI. For purposes of this subdivision, the labor commissioner shall include any person designated by the labor commissioner to carry out the investigation authorized by this section. Public employee shall mean any employee of a governmental entity, as defined in RSA 275-E:1, III.

No governmental entity shall threaten, discipline, demote, fire, transfer, reassign, or discriminate against a public employee who files a complaint with the department of labor under RSA 275-E:8 or otherwise discloses or threatens to disclose activities or information that the employee reasonably believes violates RSA 275-E:2, represents a gross mismanagement or waste of public funds, property, or manpower, or evidences an abuse of authority or a danger to the public health and safety. Notwithstanding this provision of law, public employers may discipline, demote, fire, transfer, or reassign an employee so long as the action is not arbitrary or capricious and is not in retaliation for the filing of a complaint under this chapter. Any public employee who files such a complaint or makes such a disclosure shall be entitled to all rights and remedies provided by this chapter.