Rice Law Office Blog

For executive and high-wage employees facing termination, layoff, or retirement, navigating the world of severance agreements can be complex and overwhelming. The decisions made during this period can have lasting consequences on your financial stability and professional future. To make informed choices, you must gather and review essential documents that can shed light on your rights, benefits, and obligations. In this blog, we'll detail the five documents you should carefully examine before signing any severance agreement.

1. A Complete Copy of Your Personal File

In New Hampshire, employees are entitled to a complete copy of their personnel file under RSA 275:56. This file includes all documents related to your employment, regardless of their location. It's vital to ensure that your employer provides you with all relevant information, such as notes from supervisory meetings or evaluations. Knowing what's in your personnel file can be instrumental in understanding the basis for your termination.

2. Employee Handbook or Manual

Your employer's handbook or policies contain valuable information about your rights, benefits, and obligations. Many handbooks are now online, and once you're terminated, you may lose access to this crucial resource. These policies cover everything from payment for unused paid leave to rights that may have been overlooked, such as protected leaves or workplace accommodations. Understanding these policies can be the key to securing your entitled benefits and rights.

Navigating the world of disability insurance claims can be challenging, especially when your disability benefits have been denied or terminated. Whether you're working with an attorney or going it alone, there are four essential documents you must obtain to improve your chances of a successful appeal.

Let's dive into the documents needed for your disability benefits appeal!

1. A Copy of Your Complete Insurance Policy - Many employees only receive a summary of their disability insurance plan, but to appeal a denial or termination effectively, you'll need the entire policy. Here's what you should look for:

• Statute of Limitations: Find out the time frame you have to file a claim or an appeal. Strict rules apply, so understanding and following them is crucial.
• Definition of Disability: Each policy defines disability differently, often comparing it to your job description and earnings. Pay attention to the terms related to your ability to perform the essential duties of your job and any income reduction requirements.
• Coverage Period: Know how long you can be covered under the policy if you're found disabled.
• Short-term disability coverage typically lasts 12-26 weeks before transitioning to long-term disability if applicable. Be aware of any limitations for mental health conditions and the change in eligibility criteria after one to two years.
• Pre-existing Conditions and Date of Eligibility: Check if there are waiting periods before your coverage starts and any exclusions for pre-existing conditions. Some policies may not cover conditions that existed before your employment or insurance under the plan.
• Offsets: Understand the list of offsets the insurance company can use to reduce your benefits, including social security, other insurance policies, or even withdrawals from retirement funds.
• Limitations to Coverage: Be aware of exclusions for work-related injuries or illnesses. There may be exceptions, so know the rules. For instance, if your workers' compensation claim is denied, you might be eligible for short-term disability while you appeal the workers' compensation decision.

2: Your Job Description and Personnel File - When preparing to appeal a denied disability claim, your job description and personnel file are vital. They help demonstrate your inability to perform the essential duties of your job due to your disability.

Here's what you should do:

• Request Your Personnel File: Begin by obtaining copies of your personnel file, which includes details about your employment history, evaluations, and any disciplinary actions.
• Obtain Your Written Job Description: Get a copy of your job description, as it outlines the specific tasks and responsibilities associated with your position. Your attorney will analyze this document to identify essential duties you can no longer perform due to your disability.
• Provide Evidence of Work-Related Struggles: To establish eligibility for disability insurance benefits, you must demonstrate that you struggled at work, failed to meet expectations, or encountered difficulties completing tasks.
• Gather evidence such as performance reviews, work-related emails, and any documentation reflecting these challenges.
• Rely on Medical Evidence: Medical evidence is crucial in supporting your disability claim. Consult your physician, who can review your job description and offer their professional opinion on tasks you can't perform due to your medical condition.
• Highlight Discrepancies: Your attorney will scrutinize the discrepancies between your job requirements and your abilities resulting from your disability. Any tasks in your job description that you can't perform are essential for your appeal.
• Document Missed Work and Productivity Decline: Keep records of missed work days and declining productivity, as this evidence links your disability to work-related issues.

3: Gathering Your Complete Medical Records - One of the most common reasons for denied disability claims is incomplete medical records. You can improve your appeal by obtaining your complete medical records. Here's how:

New Hampshire does not require employers give paid sick leave to their employees, and that can lead to some complicated situations as we enter flu season. The flu can pose an inconvenience for any employer by impacting employee availability and productivity, but it also poses a challenge from a legal perspective as employers sort through how to manage absences and flu shots.

Certainly many employers provide their employees with paid sick time voluntarily. This practice is good business for several reasons which go beyond philanthropy.  With the lowest employment rates in the country, New Hampshire employers have to remain competitive to attract and keep the best employees, and fair and even generous benefit packages are part of this effort. The other reason, of course, is that employers who might not want to offer paid sick leave as a cost savings measure may find they have made a penny wise, pound foolish decision.  The fact is, employers are more likely to lose money when they scrimp on sick leave by encouraging sick employees who can’t afford to lose a day’s pay to come into work, spreading their germs for all to share.  Many would argue the small cost of a well-managed paid sick leave policy more than pays for itself in greater employee satisfaction and less disruption to productivity.  

As an added measure to reducing the impact of flu season, some employers also offer flu shots to employees.  Still other employers go so far as to make vaccinations mandatory.  While mandatory vaccination policies are generally viewed as lawful, there must be exceptions available. Specifically, employees may seek to opt out of vaccinations on the basis of religious beliefs and the protections offered under Title VII of the Civil Rights Act.  Employees may also opt out if they have a qualifying medical issue that would be exacerbated by the flu shot.  If your employer requires flu shots and you’d rather not participate, ask if there is an ability to opt out.

For employees who need more than just a few days off from work, there may be other benefits or protections available to supplement sick leave. Extended illness or injury that is considered serious of disabling may qualify an employee for disability insurance payments and or job protection under the Family Medical Leave Act or the state or federal laws on discrimination. Employees who have been employed one year, have worked 1250 hours, and work for an employer at a location with more than 50 employees within 75-mile radius, are eligible for up to twelve (12) weeks of unpaid leave under the FMLA. The ADA and NH’s Disability Protection Statute RSA 354-A may offer right to accommodations or protection from unfair treatment related to your disability.  

Finally, employees who become ill or are injured in and during the course of work may be eligible for workers’ compensation, which offers not only payment for lost wages and medical bills, but compensation for permanent injuries and job protection in the form of alternative work and right to reinstatement.

As one employer recently found out, neither "primary" nor "secondary" employers may retaliate or discriminate based on FMLA protected conduct in a joint employment setting.

A recent fourth U. S. Circuit Court of Appeals decision addressing primary and secondary employer responsibilities under the Family and Medical Leave Act (FMLA) brings into question: Who's really responsible for the proper implementation of these important employee rights in the setting of joint employment?

In the case of Quintana v. City of Alexandria, No. 16-1630 (4th Cir., June 6, 2017), The fourth US Circuit Court of Appeals reversed the lower court's decision on summary judgement and found that the plaintiff, had provided strong evidence that the city of Alexandria, Virginia was her primary employer despite the fact that it had engaged a third-party administrator and staffing company to administer the payroll for her position.

Facts of the Case

With summer here and school out, more and more of us are on the move in cars with kids in tow. 

As our little ones travel back-and-forth between daycare, camp, the beach and play dates, they'll also find themselves riding in other people's cars. According to the Center for Disease Control, 150 children between ages 0 and 19 are being treated in emergency departments across the country for injuries sustained in motor vehicle crashes every hour. With this in mind, it's important that we do everything we can to keep our children safe from road traffic injuries. Thankfully, there are small steps we can take which have a huge impact in securing that our children will get from place to place safely this summer. One of most obvious places to start is with our childrens’ car seats.

We all know it's important that we make sure our children are properly buckled up in a car seat. However, it can be a challenge to install a car seat correctly and even more of a struggle sometimes to wrangle wiggly kids into their restraints.  As a result, friends or caregivers who are tasked with transportation this summer but who aren't as familiar with your car seat, might have a hard time tucking your children in safely. 

When an employee gets hurt during and in the course of work, it is usually true that the "exclusive remedy" for the worker’s losses comes from the workers' compensation laws and the workers' compensation insurance company. However, that isn't entirely true. While the employee’s exclusive remedy against the employer comes from workers' compensation (assuming the employer carries workers' compensation insurance), the employee may also obtain damages or benefits from another person who is not the employer and who is responsible for the damages suffered. This is what's known as a "third-party claim."

Workers’ Compensation As The “Exclusive Remedy” for Injuries At Work.

Usually, if an employee gets hurt at work, the employee can make a claim for workers' compensation, but the employee cannot file a lawsuit against the employer. This is generally thought of as a good thing, because it means that employees who are hurt at work typically do not have to file a lawsuit with the time and cost that entails in order to get benefits.  Lawsuits are tough, and in order to get paid under a personal injury claim, the injured person has to prove that someone else was negligent and responsible for the injury. That’s a problem for two reasons.

• First, not all injuries at work ARE caused by someone else. Often they are just bad luck, or might even be due to the employee’s own mistake.  Under workers’ compensation, these injuries are covered regardless of whose fault it is or if there is any fault.  As long as the injury is work related, it is covered, and that is a tremendous benefit. 
• Second, personal injury cases can take years. In the meantime, the injured person might not be able to work, and the medical bills will continue to stream in.  In a personal injury claim (for an injury that happens outside of work), there is no built in coverage to help pay medical bills or to cover the lost wages that occur while the lawsuit is going on.  If the injured person doesn’t have health insurance, they are in a difficult place, as they can’t force the other person to pay for those bills until they can prove their case and show the other person was at fault. Similarly, lost wages are not paid as they occur, but only after settlement or a favorable judgment in court.  Last but not least, there is no guarantee of job protection for a person who is out of work for an extended time during the pendency of a personal injury law suit. 

As a result, people with serious injuries that occur outside of work have to hope they can prove someone else was liable, but they also have to figure out how to hold on financially while the lawsuit is pending.  This can be a huge stress, as the courts are backed up and this process can take time.

Its been a busy month at Rice Law Office with speaking engagements, a busy litigation calendar and radio spot with WEMJ. 

Attorney Rice had the honor of being invited to speak at the State NEA teachers' fall convention earlier this month, followed by a presentation for the New Hampshire Bar Association the next Friday, where she spoke about employment litigation from the Plaintiff's point of view.  She was joined by a panel of employment attorneys from both sides of the table, representing the issues most important to employers and employees alike.  The month was capped off with a guest spot @WEMJ1490 radio for open mic with Pat Kelly, where Anne and Pat talked about the ins and outs of employment law basics, here in New Hampshire. 

At the NH bar seminar Anne talked about the intake process and how critical it is to choose cases carefully and then to consider what is best for the client as the driving force for moving forward. Trial attorneys love to litigate, its what we do, but for most "normal" people the process can be stressful, expensive and time consuming.  There are alternative routes to resolution and good counsel should talk to clients about different ways to get the best outcome, with the least time, stress and cost. We should talk to clients about all the remedies available, including disability insurance, retirement, social security, worker's compensation as well as options for litigation like, claims for wrongful termination, discrimination, or wage violations and the like. 

Each type of claim has its pros and cons.  Some take longer, some are harder to prove and some have greater or lesser remedies available.  A claim for discrimination or wrongful termination can take years to bring for example, but disability insurance, unemployment or worker's compensation may provide a faster source of income to tide an employee over in the meantime.   Employees need to know how they will pay their mortgage and keep help insurance pending litigation, but law suits take time!  As employment attorneys we need to help sustain our clients as they await justice by providing information, resources and other options for help.

It starts with listening.  It's important to listen to clients to help them determine which choice might be best.  Employees who are hurt at work, treated poorly or fired, often feel like they have lost all control.  Their world is turned upside down when their job is at risk.  The truth is, our jobs define our schedule, our security and sometimes who we are.  When a job is threatened or pulled out from underneath us, it is frightening and it affects every aspect of our lives and the lives of our family. 

There is a sophisticated phone scam targeting taxpayers, including recent immigrants, throughout the country and it is targeting NH residents as well. 

Victims are told they owe money to the IRS and it must be paid promptly through a pre-loaded debit card or wire transfer. If the victim refuses to cooperate, they are then threatened with arrest, deportation or suspension of a business or driver’s license. In many cases, the caller becomes hostile and insulting. These scammers may even have caller ID numbers that appear to be from the IRS, the court or the police Deprtment and their tactics are aggressive.

Don't fall prey to this scam. 

Here's what you need to know:

1. The IRS does not and will not ask for credit card numbers over the phone, nor request a pre-paid debit card or wire transfer, says IRS Acting Commissioner Danny Werfel.
2. “If someone unexpectedly calls claiming to be from the IRS and threatens police arrest, deportation or license revocation if you don’t pay immediately, that is a sign that it really isn’t the IRS calling.”

People should know that according to the IRS, the first IRS contact with taxpayers on a tax issue is likely to occur via mail and not the phone.

Rice Law Office and its team of walkers and runners braved the early morning rain to bring attention to the quest for the cure at the Tanger walk/run for the cure, held on September 22nd.  With nearly 40 participants, Rice Law Office was able to make a meaningful contribution to LRGH healthcare in support of breast cancer for every member of the team while enjoying the company of an amazing group of friends and family!  Thank you for joining us to bring funds and awareness to this important cause.  Check out our photos, they're sure to make you smile!