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An employee's waiver of the right to bring a separate action against her employer in exchange for workers' compensation benefits is not intended to include the employee's right to privacy in her own home. Concluding otherwise would allow an employer to use non-work related communications occurring in the privacy of an employee's home to discipline or perhaps fire the employee, then claim an otherwise socially beneficial, remedial statute as a shield for such an invasion of privacy. The Workers' Compensation Law, N.H. Rev. Stat. Ann. § 281-A:1 et seq., was not intended for such purposes and it would stretch it to the logical breaking point to reach such a conclusion.
A telephone conversation between plaintiff Karen Karch and a co-worker was overheard by John and Jane Doe on their radio scanner. The conversation took place during non-working hours and involved mostly personal matters; however, some observations about working at BayBank FSB were discussed. The Does reported the content of the conversation to BayBank and R. Elaine Gordon, a vice president of the bank. Based upon the Does’ disclosure, the defendants accused the plaintiff of misconduct and threatened her with termination and placed a “Counseling Statement” in her permanent personnel record. Believing that the defendants were interfering illegally with her rights, the plaintiff hired an attorney who wrote a letter to Gordon alleging that the defendants had violated RSA chapter 570-A (1986) and the plaintiff's right to privacy by intercepting, disclosing and continuing to use the contents of the telephone conversation. In response, the plaintiff's work environment became pervasively hostile. Suffering from the physical and emotional effects of stress caused by the hostile work environment, the plaintiff took a medical leave of absence in October 1993 and resigned when her leave concluded. Subsequently, plaintiff filed suit against BayBank, Gordon, and John and Jane Doe, alleging violations of New Hampshire's wiretapping and eavesdropping statute, wrongful discharge, invasion of privacy and intentional or negligent infliction of emotional distress. The Superior Court dismissed all claims except those alleging intentional infliction of emotional distress against Gordon, and the wiretapping and eavesdropping and invasion of privacy claims against the Does. The plaintiff's motions for reconsideration and leave to amend were denied. Plaintiff filed a second writ and appealed the trial court’s rulings on her first writ. The defendants moved to dismiss the second writ claiming, among other things, that it was procedurally barred by ERG, Inc. v. Barnes, 137 N.H. 186, 624 A.2d 555 (1993). In its decision on the defendants' motion to dismiss the second writ, the trial court dismissed the plaintiff's wiretapping and eavesdropping, intentional infliction of emotional distress and invasion of privacy claims against BayBank on the basis that they were barred by the Workers' Compensation Law; dismissed the plaintiff's negligent infliction of emotional distress claim against BayBank and Gordon as barred by the Workers' Compensation Law; denied the defendants' motion to dismiss the wiretapping and eavesdropping, intentional infliction of emotional distress and invasion of privacy claims against Gordon; and denied the defendants' motion to dismiss the wrongful discharge claim. The consolidated appeals followed.
The Court noted that as a general rule, any claim based upon negligence by an employee or co-employee for personal injuries arising out of or in the course of employment was barred by the Workers' Compensation Law, RSA 281-A:8, I (1999). Contrary to the plaintiff’s assertion, the statute contained no exception even if there was an allegation of illegal activity. Moreover, the Court held that plaintiff’s allegation of intentional infliction of emotional distress against BayBank was also barred by Workers' Compensation Law since an employee may not bring a separate tort action against her employer. According to the Court, the Worker’s Compensation Law expressly provided that an employee subject to the chapter waived the right to bring such a separate action in exchange for the acceptance of benefits. With regard to plaintiff’s claim for intentional infliction of emotional distress against Gordon, the Court held that the plaintiff has sufficiently stated a claim. The Court noted that an employee’s waiver in exchange for benefits did not bar intentional tort actions against co-employees. Anent the third and fourth issue, the Court held that plaintiff’s use of a cordless phone in her conversation did not exempt it from the protections of N.H. Rev. Stat. Ann. ch. 570-A, prohibiting eavesdropping. Plaintiff sufficiently alleged that the Bank and Gordon intercepted, disclosed, and used her private conversation. She did not waive these claims in N.H. Rev. Stat. Ann. § 281-A:8, I(a) of the Workers' Compensation Law. Although the alleged disciplinary and retaliatory actions by BayBank and Gordon occurred at the workplace, such actions flowed directly from the use of a personal, non-work related telephone conversation that took place in the privacy of the plaintiff’s home. Concluding that the plaintiff's wiretapping and eavesdropping claims were barred by the Workers' Compensation Law would confound the essence of the requirement that a compensable injury arise out of and in the course of employment. With respect to the plaintiff’s wrongful discharge claim, the Court held that plaintiff’s allegation against BayBank was reasonably susceptible of a construction that would permit recovery. The Court further noted that the plaintiff alleged facts from which a jury could find that she was terminated for performing an act that public policy would encourage. Accordingly, the trial court's judgment dismissing the employee's wiretapping and eavesdropping claim against the employer was reversed; otherwise, the trial court’s judgment was affirmed.