CHAPTER
Lab 900 WHISTLEBLOWERS’ PROTECTION ACT
Statutory
Authority: RSA 275-E: 7, RSA 275-E: 8 and RSA 541-A: 16, I (b)(2)
PART
Lab 901 PURPOSE
Lab 901.01 Purpose. The
purposes of these rules are to define terms contained in RSA 275-E, to describe
the form content and notices required to be posted by RSA 275-E:7, and to
notify workers how to file a complaint for relief under the statute.
Source. #4685, eff 12-09-88; EXPIRED 12-09-94
New. #7351, eff 8-24-00, EXPIRED: 8-24-08
New. #9257, eff 9-11-08; ss by #10522, eff 2-15-14;
ss by #13731, eff 8-25-23
PART
Lab 902 DEFINITIONS
Lab 902.01 "Violation"
means an infringement of a rule or law adopted by the state of New Hampshire, a political subdivision of the state, or, provided
no preemption exists, the United States.
Source. #4685, eff 12-09-88; EXPIRED 12-09-94
New. #7351, eff 8-24-00, EXPIRED: 8-24-08
New. #9257, eff 9-11-08; ss by #10522, eff 2-15-14
(formerly Lab 902.03); ss by #13731, eff 8-25-23
Lab 903.01 Poster. Under
the provisions of RSA 275-E:7, every employer of employees shall display a
poster, in conspicuous places at all
workplaces within New Hampshire, in order to inform employees of protections
and obligations under the statute. The content of the poster shall be as set
forth in (a) - (f) below.
(a) The poster shall
include a statement that under the Whistleblowers' Protection Act, RSA 275-E,
protection is available to employees who, in
good faith, report what they reasonably believe is a violation of a law or a
rule, participate in an investigation or hearing, or who refuse to execute an
illegal directive;
(b) The poster shall
include a notification to the employees stating that an employer shall be
prohibited from discharging, threatening, or discriminating against any
employee if:
(1) The
employee, in good faith, reports or causes to be reported an alleged
violation of any law or rule adopted under the
laws of this state, a political subdivision of this state, or the United
States;
(2) The
employee objects to or refuses to
participate in any activity that the employee, in good faith, believes is a
violation of a law or rule;
(3) The
employee refuses to execute a directive which the employee in good faith, believes violates any law or rule adopted under
the laws of this state, a political subdivision of this state or the United
States; or
(4) The
employee participates in an investigation, hearing, or inquiry conducted by any
governmental entity or any 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.
(c) The poster shall notify
employees that they can request a hearing with the department of labor which
can result in a judgment to order reinstatement, payment of fringe benefits,
restoration of seniority rights, and any appropriate injunctive
relief, but only after the employee has made a reasonable effort to maintain or
restore his or her rights through any grievance procedure available;
(d) The poster shall notify
public employees that they may file a complaint with the department of labor
concerning the possible fraud, waste, or abuse in the expenditure of public
funds, and no governmental entity shall take any retaliatory action against a
public employee who, in good faith, files such a complaint;
(e) The poster shall
include the address and telephone numbers of the inspection division of the
department of labor; and
(f) The poster shall include a
statement that the notice shall be posted in a conspicuous place.
Source. #4685, eff 12-09-88; EXPIRED 12-09-94
New. #7351, eff 8-24-00, EXPIRED: 8-24-08
New. #9257, eff 9-11-08; ss by #10522, eff 2-15-14;
ss by #13731, eff 8-25-23
PART Lab 904 REQUIRED COMPLAINT
FORM
Lab 904.01 Complaint
Form. Any person defined as an employee under RSA 275-E:1, I or
a public employee defined under RSA 275-E:1, III filing a whistleblowers'
complaint under the provisions of RSA 275-E:4 shall supply the following on the
“Whistleblowers’ Complaint Form” provided by the department of labor:
(a) The
complainant's name;
(b) The
complainant's mailing address and telephone number;
(c) The
name and mailing address of the employer/company that the
complaint is filed against;
(d) The
name and telephone number of the employer representative to whom the complaint
should be directed;
(e) A
description of the complaint, describing the alleged
violation of rights under RSA 275-E:2 or RSA 275-E:3;
(f) If
applicable, the date of the discharge;
(g) A
description of the alleged discrimination,
retaliation or threat made;
(h) An
indication whether the employer has a grievance
procedure available;
(i) If there was a grievance procedure available,
an indication of whether the complainant followed the employer's procedure before filing the
complaint;
(j) The
specific relief the complainant is seeking by
filing the complaint;
(k) In
addition to (a) – (j) above, the following
information if the complaint is filed under RSA 275-E:2, I (a) for reporting or
causing to be reported an alleged violation:
(1) The
alleged violation of the law or rule
that was reported;
(2) The name
and title of the person to whom the alleged violation of
law or rule was reported;
(3) The
name of the person or persons who allegedly violated the law or rule;
(4) The
date the alleged violation of law or rule
occurred;
(5) How
the alleged violation of law or rule occurred;
(6 The date the alleged violation of the law or rule was
reported;
(7) How
long the employer was given to correct the alleged violation
before reporting it; and
(8) If
the alleged violation was not reported to the employer, the reason why it was
not.
(l) In
addition to (a) – (j ) above, the following
information if the complaint is filed under RSA 275-E:2, I (b):
(1) The
alleged illegal activity that the complainant objected to or refused to
participate in;
(2) The
name and title of the person or persons who asked the complainant to
participate in the alleged illegal activity; and
(3) The
date on which the complainant objected or refused to participate in the alleged
illegal activity.
(m) In addition to (a) – (j)
above, the following information if the complaint is filed under RSA 275-E:2, I
(c):
(1) Whether
or not the complainant participated in an investigation, hearing, inquiry, or
court action;
(2) The
specific action, whether investigation, hearing, inquiry, or court action in
which the complainant participated;
(3) The
date or dates upon which the complainant participated in an investigation,
hearing, inquiry, or court action; and
(4) The
name of the agency or court where the complainant’s participation in an
investigation, hearing, inquiry, or court action,
took place.
(n) In
addition to (a) – (j) above, the following information if the complaint is
filed under RSA 275-E:3 for refusal to execute an illegal directive:
(1) The
alleged illegal directive ordered by the
employer;
(2) The
name and title of the person or persons who ordered the
alleged illegal directive; and
(3) The
date the alleged illegal directive was ordered.
(o) In
addition to (a) – (j) above, the following information if the complaint is
filed by a public employee under RSA 275-E:9:
(1) The
date on which the public employee first reported the alleged violation of
fraud, waste, or abuse in the expenditure of public funds,
or in relation to programs involving procurement of supplies, services or
construction by a governmental entity in the state to the department of
labor;
(2) The
case number provided to the complainant when the above complaint
was filed with the department of labor; and
(3) For
complaints filed for violation of RSA 275-E:2, for the gross mismanagement or
waste of public funds, property, or manpower, or for evidence of an abuse of
authority or a danger to the public health and safety, the complainant shall
provide the information on the form as described in (k), above.
(p) The
signature and date of the complainant certifying
that the complaint is a truthful statement of the facts involved.
Source. #7351, eff 8-24-00, EXPIRED: 8-24-08
New. #9257, eff 9-11-08; ss by #10522, eff 2-15-14;
ss by #13731, eff 8-25-23
Lab 904.02 Public Employee Complaint Form.
(a) A public employee filing a
complaint under the provisions of RSA 275-E:8 shall supply the following on the
“Complaint Form for Public Employees” provided by the department of labor:
(1) The
complainant's name;
(2) The
complainant's mailing address and telephone number;
(3) The
name and address of the employer/public entity the complaint is filed against;
(4) The
name and telephone number of the contact person for a potential investigation;
(5) An
indication as to whether the complaint concerns possible fraud, waste, or abuse
in the expenditure of public funds or
relating to programs and operations involving the procurement of any
supplies, services, or construction by governmental entities within the state;
(6) A detailed description of
the possible fraud, waste, or abuse in the expenditure of public funds relating
to programs and operations involving the procurement of any supplies, services,
or construction by governmental entities within the state;
(7) The name and title of the person to whom the
alleged possible fraud, waste, or abuse in the expenditure of public funds was
reported;
(8) How
long the employer was given to correct the alleged possible
fraud, waste, or abuse in the expenditure of public funds before reporting it
to the department of labor;
(9) If
the alleged possible fraud, waste, or abuse in the expenditure of public funds was
not reported to the employer, the reason why it was not;
(10) The signature and date of the complainant
certifying that the complaint is a truthful statement of the facts involved;
and
(11) The signature and date of the complainant if
authorizing the department of labor to disclose the complainant’s identity to the
appropriate enforcement authority if the compliant is deemed by the department
of labor to have merit.
(b) The
form shall include a statement notifying the complainant,
pursuant to RSA 275-E:8, II, that if the complaint is referred to a law
enforcement agency for a criminal investigation the complainant’s identity
shall be disclosed to the agency without the complainant’s consent.
Source. #7351, eff 8-24-00, EXPIRED: 8-24-08
New. #9257, eff 9-11-08; ss by #10522, eff 2-15-14; ss by #13731, eff 8-25-23
Lab 904.03 Processing
A Complaint under RSA 275-E:4.
(a) If an employee files a
complaint under RSA 275-E:4, the complaint shall be presented to the department
of labor in the form prescribed by Lab 904.01 (a) through (o), with all
substantiating documents attached.
(b) The department of labor shall
process the complaint as set forth in (1) – (4) below:
(1) The
department of labor shall notify the employer by
serving the complaint via US mail, email, or in hand along with an order to
file an objection to the complaint with the department of labor within 10 days
of receipt of such complaint, specifying the grounds thereof;
(2) The
department of labor shall forward a copy of
the objection to the claimant, who shall be notified of the claimant’s right to
request a hearing in the matter;
(3) If
the employer fails to respond to the notification above under Lab 904.03 (b)
(1), the claimant shall also be informed by the department of labor
of the claimants’ right a hearing;
(4) If the claimant fails to request
formal hearing on the matter, the claim will be dismissed without a finding, and
(5) If a hearing is requested by
the claimant the request shall be in writing pursuant to Lab 204.01.
Source. #7351, eff 8-24-00, EXPIRED: 8-24-08
New. #9257, eff 9-11-08; ss by #10522, eff 2-15-14
(from Lab 904.02); ss by #13731, eff 8-25-23
Lab 904.04 Processing A Public
Employee Complaint under RSA 275-E:8.
(a) If an employee files a
complaint under RSA 275-E:8, the complaint shall be presented to the department
of labor in the form prescribed by Lab 904.02, (a) (1) through
(8), with all substantiating documents attached.
(b) The department of labor
shall process the complaint as set forth in (1) – (7) below:
(1) If
the department of labor makes an initial determination that the complaint is
without merit or unfounded, the complainant shall be notified
and the complaint shall be dismissed without further action;
(2) If
the department of labor is in need of further information or clarification, the
department of labor shall make such request of the complainant and hold the
complaint for 15 days from the date of the request;
(3) If
no information is received within the above timeframe, the complaint shall be
dismissed without further action;
(4) The
case shall be reopened if the commissioner or commissioner’s representative
determines there was good cause for failing to respond,
including:
a. Serious illness;
b. Hospitalization;
c. Incarceration;
d. Death
of a family member; or
e. Any other unforeseeable
circumstance beyond the complainant’s control that prevents the complainant
from providing the required information or clarification to the department of
labor;
(5) If
the department of labor suspects any violation of state or federal criminal
law, it shall be reported immediately to the attorney
general and either the United States Attorney or local law enforcement agency;
(6) If
the department of labor determines that the complaint would be more
appropriately investigated by another authority having
jurisdiction over the subject matter, the department of labor may refer the
complaint to that authority and notify the complainant in writing;
(7) If
the department of labor determines that the complaint has merit and it is not
referred to another agency under (b) (5) or (6) above, the department of labor shall
undertake further investigation as set forth in d. below:
a. The department
of labor shall contact the public entity the complaint is filed against and
request all records, confidential or otherwise, reports, audits, reviews,
papers, books, documents, recommendations, and correspondence, including
information or data that is deemed necessary to carry out the
investigation;
b. If
deemed necessary for a complete investigation, the department of labor shall
perform an onsite audit of the records of the employer;
c. If
deemed necessary for a complete investigation, the department of labor shall
conduct confidential interviews;
d. If
the investigation results in a final determination that validates the
complaint, the department of labor shall notify the appropriate enforcement
authority;
(8) The
department of labor shall notify the complainant, and the public entity against
which the complaint is filed, in writing of the results of the investigation by
the department of labor; and
(9) The
department of labor shall maintain the complaint on file for a period of at
least 3 years.
Source. #10522, eff 2-15-14 (from Lab 904.02); ss by
#13731, eff 8-25-23
Lab 904.05 Hearings.
(a) Hearings held under RSA
275-E:4 and Lab 904.03 shall be conducted according to the rules established by
Lab 201-204, and the requirements of RSA 541-A.
(b) Following such hearing, the
labor commissioner or designee shall order such remedies as are appropriate,
including reinstatement of the employee, payment of back pay, fringe benefits,
seniority rights, attorney fees, any appropriate injunctive relief, or any
combination of these remedies.
Source. #10522, eff 2-15-14 (from Lab 904.03); ss by
#13731, eff 8-25-23
Appendix
Rule |
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Lab 901-902 |
RSA 275-E:2 |
Lab 903 |
RSA 275-E:7 |
Lab 904 |
RSA 275-E:4, RSA
275-E: 8; RSA 541-A:16 I, (b) (2) |
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