On Tuesday, the New Hampshire Supreme Court issued an opinion in EEOC v. Fred Fuller Oil Company, Inc., No. 2015-0258 (N.H. Feb. 23, 2016), in which it found that an individual employee of a New Hampshire employer with six or more employees can be held individually/personally liable for employment discrimination and retaliation.

The opinion itself relies primarily on multiple sections of New Hampshire’s anti-discrimination and anti-retaliation statute to conclude that the legislative intent was to hold individual employees liable for the aiding and abetting of discriminatory conduct by employers, as well as hold individual employees liable for any termination or other adverse action that may be taken against another employee in retaliation for protected activity. A thorough discussion of the opinion itself is available here, however there are a few things that clients and friends with New Hampshire employees should do as soon as possible:

  • Check your insurance policies. If you have Employment Practices Liability Insurance (“EPLI”) or Directors and Officers liability insurance (“D&O”) check your coverage to find out whether your coverage extends to individual employees—and managers—who are accused of discrimination or retaliation.
  • Manager Training. Help your managers to understand the serious consequences of an employment lawsuit to your company—and to them individually.
  • Point of Contact. Make sure that harassment complaints (or all general complaints) are being reported to a central individual so that he or she can help to guard against follow-up retaliation claims.
  • Harassment/Retaliation Training. While New Hampshire statutorily does not require annual harassment and retaliation training, best practices is to make sure all new employees are appropriately trained and that annual “refresher” courses occur.