On March 7, 2019 the NH Supreme Court ruled that an employee’s worker’s compensation carrier was wrong to deny reimbursement for the cost of medical marijuana to an employee recovering from a work related injury. The employee, Andrew Panaggio, suffered a lower back injury in 1991. He received a lump sum settlement for permanent impairment in 1997 and continued to experience pain as a result of the injury. He experienced negative side effects from prescribed opioids and was issued a NH cannabis registration card approving him for the use of medical marijuana in 2016. He purchased the marijuana and then sought reimbursement from the worker’s compensation carrier which denied payment stating that “medical marijuana is not reasonable/necessary or causally related” to the injury.
In a long awaited decision reversing 26 years of existing precedent, on June 21st the United States Supreme Court ruled in South Dakota v. Wayfair, Inc., that states and other taxing jurisdictions could require out of state retailers to collect sales tax on online sales even though the retailers had no physical presence in the taxing jurisdiction.
Earlier this month, the Supreme Court announced that it had decided not to hear the case of Gavin Grimm – the transgender student who sued his school district seeking access to the restroom and locker room facilities that correspond to his gender identity. The Court’s change in course followed the Trump Administration’s rescission of an Obama-era Department of Education policy on the issue of bathroom access. Although Grimm’s suit involves public school students, private employers have been keeping a close eye on the case for any implications it may have on the rights of transgender employees in the workplace. The answer to that question will have to wait. Continue Reading The Problem with Pronouns
Last month, President Trump nominated Judge Neil Gorsuch from the United States Court of Appeals for the Tenth Circuit to fill the vacant seat left by the late Antonin Scalia on the United States Supreme Court. While Judge Gorsuch’s nomination has been met with both praise and criticism from a divided electorate, it may bring good news to employers wrestling with leave requests under federal disability laws. Continue Reading Supreme Court Nominee’s Record on Disability Leave Favorable to Employers
Earlier this week, the New Hampshire Supreme Court issued an opinion holding that the New Hampshire Law Against Discrimination, RSA Chapter 354-A, can impose liability upon individual employees for aiding and abetting discrimination in the workplace, and for retaliation against another employee in the workplace of a qualifying employer.
The issue came before the New Hampshire Supreme Court in the form of a certified question from the United States District Court for the District of New Hampshire, in connection with a case pending in that court. In the underlying case, a female employee brought suit against her employer for sexual harassment and retaliation under federal law (Title VII) and state law (RSA chapter 354-A). The plaintiff also sued an individual employee under state law. (Under current First Circuit precedent, there is no individual liability under the federal Title VII law.) Because the New Hampshire Supreme Court has never specifically addressed the question of whether individuals can be held liable under Chapter 354-A, the Federal Court asked for clarification on the issue.
The New Hampshire Law Against Discrimination identifies certain acts which, when committed by an “employer,” constitute unlawful discriminatory practices. The New Hampshire Supreme Court pointed out that the law also provides that “any act of aiding, abetting, inciting, compelling or coercing another to commit an unlawful discriminatory practice, or attempting to do so, or obstructing or preventing any person from complying with the [law] is itself an unlawful discriminatory practice.” The Court noted that the law allows an aggrieved person to purse a claim against a “person, employer, labor organization, employment agency or public accommodation alleged to have committed the unlawful discriminatory practice.” Since “person” is defined in the law as “one or more individuals, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, trustees in bankruptcy, receivers, and the state and all political subdivisions, boards, and commissions thereof,” the Court concluded that individuals can be liable under the New Hampshire Law Against Discrimination.
The New Hampshire Law Against Discrimination only applies to employers with six or more employees. The Court addressed the issue of whether an individual employee of an employer with fewer than six employees could be individually liable. The Court held that one can only be found liable for aiding and abetting discriminatory conduct that is illegal under the New Hampshire Law Against Discrimination. Therefore, if the conduct of a smaller employer is not actionable because the employer is exempt from the law due to its size, there can be no liability for aiding and abetting.
The Court came to a similar conclusion with regard to individual liability for retaliation under the New Hampshire Law Against Discrimination. The Court held that the statute’s language makes clear that “as is relevant in the employment context … any ‘person’ may be held liable for retaliation without regard to whether that person is also an ‘employer.’” As it did with the question of aiding and abetting, the Court found that “it would be illogical to hold individual employees liable for retaliation when they are employed by an employer that is exempt from liability” due to the size of the employer, and accordingly, the Court held that only individual employees of qualifying employers (i.e., employers with six or more employees) could be held liable for retaliation.
This week’s holding brings New Hampshire law in line with existing law in the neighboring Bay State on the issue of individual liability. Under the Massachusetts anti-discrimination statute (G.L. Chapter 151B) “any person, whether an employer or an employee or not,” may be held liable for aiding, abetting, inciting, compelling or coercing the doing of any of the acts forbidden under the law.
The case is U.S. Equal Employment Opportunity Commission, et al. v. Fred Fuller Oil Company, et al., Case No. 2015-0258 (Feb. 23, 2016). A copy of the opinion can be downloaded at the Court’s website.
Last month, the United States Supreme Court ruled unanimously in Tibble v. Edison International that retirement plan fiduciaries have an ongoing duty to monitor plan investments. The ruling came in a case involving challenges to plan investment decisions made more than six years before suit was filed. The lower courts had ruled some claims were barred by the statute of limitations.
In a 2007 lawsuit, participants in the Edison 401(k) Savings Plan sued various Edison International entities and the plan fiduciaries alleging numerous claims under ERISA. The claims included that the plan fiduciaries should have offered identical lower-cost institutional shares instead of the more expensive investment options selected in 1999 and 2002.
The Supreme Court reversed the lower courts’ ruling that ERISA’s six-year limitations period barred plaintiff’s claims that the 1999 mutual fund investments were imprudent. Although the Supreme Court stated that the lower court correctly asked whether the last action which constituted a part of the breach or violation of the duty of prudence occurred within the relevant 6-year period, the lower court was incorrect to focus on the act of designating an investment for plan inclusion to start the six year period. Instead, the lower courts should have recognized that a fiduciary is required to conduct a regular review of its investments with the nature and timing of the review contingent on the circumstances. The case highlights the need for retirement plan fiduciaries to monitor plan investments pursuant to written procedures.