2004 Fall, 20. Ambiguous Language in Communications to Employees Can Deny New Hampshire Employers the Benefits of At-Will Status.

AuthorBy Jon N. Strasburger

New Hampshire Bar Journal


2004 Fall, 20.

Ambiguous Language in Communications to Employees Can Deny New Hampshire Employers the Benefits of At-Will Status

New Hampshire Bar Journal Fall 2004, Volume 45, Number 3 Ambiguous Language in Communications to Employees Can Deny New Hampshire Employers the Benefits of At-Will Status By Jon N. Strasburger


New Hampshire's law of at-will employment has been recently refined by the recent New Hampshire Supreme Court opinion in Dillman v. N.H. College.1 In an employment at-will situation, either the employer or the employee is free to end the relationship at any time with or without cause.2 In New Hampshire, the at-will status of an employment relationship is "one of prima facie construction."3 It is applied when the parties' contract for employment is silent as to duration.4 Many employers prefer this arrangement because they are able to end the relationship without having the burden of terminating the employee for cause.

However, this relationship can be modified by formation of a new, unilateral contract if the employer makes any sort of communication that could be construed as an offer to modify the employment terms.5 New Hampshire employers have frequently guarded against this problem through the use of disclaimers and acknowledgments in employee handbooks that specifically state that the language in the handbook does not express or imply any sort of contract for employment. The New Hampshire Supreme Court upheld this approach a decade ago in Butler v. Walker Power.6 In that case, the Court found that the language in the disclaimer evinced the employer's obvious intention to maintain the at-will status.7

This landscape may have changed. The Dillman decision indicates that an employer's reliance on disclaimers, acknowledgments and waivers in employee handbooks may be misplaced if there is imprecise language in other employment documents, particularly subsequent communications extending or changing terms of employment. Practitioners in New Hampshire should be aware of the refinements that this case brings to this vital employment law issue.


David Dillman was hired as the audio-visual director at New Hampshire College (now known as Southern New Hampshire University) in December of 1988. Beginning in 1991, the college and Mr. Dillman executed annual "letters of reappointment." These letters contained the terms of employment for the upcoming year and identified the nature of the services that Mr. Dillman was to provide, the duration of employment and the compensation to be received.

The College terminated Mr. Dillman without cause in May of 1999. The letter of reappointment in effect during this period provided: This letter is written to confirm New Hampshire College's intent to employ you as Director of AV Studio which is a ten/twelve (please circle one) position. For the period commencing September 1, 1998 and continuing through August 31, 1999 your salary will be . . . to be paid in 12 installments . . .This is a non-contracted staff appointment which is covered under the policies and procedures outlined in the New Hampshire College Unified Handbook.8

After being terminated, Mr. Dillman sued the college for breach of contract. He contended that that he could only be terminated for good cause and that the college arbitrarily refused to hire him for the next academic year. At trial, New Hampshire College moved for a directed verdict at the close of evidence arguing that, as a matter of law, Dillman was an at-will employee. The directed verdict was denied and the jury returned a verdict in favor of Dillman.9

On appeal, the college argued that the trial court erred by denying its motion for a directed verdict. It took the position that Dillman was at an at-will employee who could be terminated without cause and that the letters of reappointment and disclaimers in the handbooks further supported its argument. In other words, New Hampshire College contended that "non-contracted" means employee at- will and the handbook did nothing to alter this employment status because of its express disclaimer. The disclaimer in the college's 1994 handbook stated: "[t]his Handbook shall not be considered a contract of employment." 10 Additionally, the college pointed to a signed receipt for the handbook which stated: "[t]his Handbook is not intended to be a contract or part of a contractual agreement between you and the College."11 The college further contended that the Court's previous holding in Butler controlled this case and that the holding in Butler allowed employers to escape contractual liability for handbook terms through the use of disclaimers.


The Court began by applying basic contract principles. The interpretation of a contract is an issue of law for the Court to resolve.12 However, if disputed issues of fact are present as to the existence and terms of the contract, they should be resolved by the jury.13 Furthermore, if contract terms are ambiguous, the trial court may properly look to extrinsic evidence to determine the intent of the parties.14 The determination of the meaning of ambiguous terms should be left to the discretion of the jury unless the extrinsic evidence is so clear that a reasonable person could only arrive at one conclusion.15 Prior to the case being submitted to the jury however, the trial court must determine whether there is any evidence by which a reasonable jury could find that the parties had formed a contract.16

The Court used this approach and ultimately found that sufficient evidence had been presented to the trial court to enable the jury to find for the plaintiff, David Dillman. First, both...

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