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Rice Law Office Blog

This blog reviews important legal issues including: personal injury, employee compensation, workers compensation, discrimination and wrongful termination.

Youth Employment FAQ

Youth Employment FAQ

Over the course of the summer many young people will seek out part time or seasonal employment, and businesses welcome the added labor during the busy holiday seasons. There are, however, additional regulations and rules that determine how people under the age of 18 can be employed.

To help employers and young people seeking work understand these guidelines and regulations, the New Hampshire Department of Labor publishes a list of frequently asked questions around youth employment. That list can be found on the NH DOL website here, however we have also included the questions and answers below.

When is the NH Youth Employment Certificate, also known as "Working Papers," required?

The Youth Employment Certificate is required for any youth 12 to 15 years old and must be on file at the employer's place of business within three business days of the first day of employment. Employers are required to have on file at the work place, at the time employment begins, written permission by the parent or guardian of a 16 or 17 year old permitting the youth's employment (RSA 276-A:4).

Do youths under the age of 18 need to have a NH Youth Employment Certificate?

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No COLA Adjustment for Social Security in 2016

No COLA Adjustment for Social Security in 2016

For 2016, there will be no cost-of-living adjustment for Social Security and SSI benefit rates. This means that the government has determined that the cost-of-living has not risen since last year, and benefits will hold steady until the review next year. 

Each year the government assesses cost-of-living around the country through a Consumer Price Index – which measures changes in the price levels of essential goods and services around the country – and then adjusts benefits accordingly. If the cost-of-living goes up, the government must increase Social Security and SSI benefits.

While everyone enjoys seeing an increase in his or her benefits, the good news is that the average cost-of-living has not risen this year. Without an adjustment to cost-of-living, retirement earnings, exempt amounts and the maximum earnings subject to social security tax will also hold steady.

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Office Betting Season is Upon Us

Office Betting Season is Upon Us

With the NFL’s conference championship games this weekend, many Americans will be laying small bets between friends, family, and co-workers. While certain sporting events are ingrained into the very fabric of national culture, the unofficial betting around these events is mostly illegal.

One common phenomenon is the office betting pool or bracket- often a lighthearted and social activity- however it is important to consider the legal status of this practice. Despite the fact that every year billions of dollars are wagered in unofficial office pools during the Super Bowl and March Madness, your office gambling is likely illegal.

Statutes in almost every state prohibit office gambling pools, and in every state but Nevada, gambling on college sports is illegal all together. Despite the questionable legal status of these office pools, they persist across the entire country. 

Some estimates suggest that total betting on the Super Bowl last year exceeded $10 billionCollege football wagers are estimated to total over $60 billionEstimates suggest that 50 million American’s participated in March Madness office pools in 2015, with over $2.5 billion on the lineAll of this activity is dwarfed by fantasy football, which attracts over 30 milllion American’s annually, with over $10 billion changing hands each year

The common thread in all of these cases is that the vast majority of the gambling occurs outside of official venues or channels. While the office sports betting pool is a common practice, and generally thought of fondly, it is still illegal. While some states have considered legislation to allow for small-scale office betting on specific events, such as the Super Bowl or March Madness, policy change has yet to be realized. 

In the meantime, it is important to understand that these gambling rings are not yet legal. Employers who turn a blind eye to the practice expose themselves to legal repercussions, and employees should not feel pressured into participating. With specific inquiries contact Rice Law Office, PLLC for a free phone consultation at 603-528-5299 or visit our website for helpful articles and information.

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Linking Mental Health and Workers' Compensation

Linking Mental Health and Workers' Compensation

There is growing recognition that mental health plays a large role in workers’ compensation, and that care extending to mental health can help people return to work more quickly. Mental health issues account for nearly a third of all new disability claims in Western countries, and are the leading cause of disability in high-income countries. 

A majority of workers pursuing a workers’ compensation claim will experience depressive symptoms within a year after their injury.  An injury that prevents an employee from going back to work also impacts their family—an injured worker’s family members are three times more likely to be hospitalized in the three months following the work injury.

There are things that you and your employer can do to reduce the risk of a mental health extending your disability.  First, its important to acknowledge that mental health is an important part of the recovery process following a work injury. There should be no stigma for workers seeking treatment if they are suffering from a mental health condition.

Employers can put in place screening processes to identify cases in which an injured worker faces an increased likelihood of a mental health condition, and facilitate access to clinical treatment.  As we understand the impact of mental health care in recovering from a work place injury there is an opportunity to improve the care injured workers receive.

If you have any questions regarding a work related injury that you have suffered you should contact an attorney to understand your rights and protections.  Rice Law Office offers free consultations-- give us a call.

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PREGNANCY DISCRIMINATION INFORMATION

PREGNANCY DISCRIMINATION INFORMATION

These frequently asked questions are drawn from the New Hampshire Commission for Human Rights. Visit their website for more information.

Is a pregnant woman entitled to maternity leave?

Yes, an employer must grant a female employee leave for the period of time she is physically disabled due to pregnancy, childbirth or related medical conditions.

 

Is there a set period of time for maternity leave?

No, there is no set period of time for maternity leave. It is based on the period she is disabled as determined by a physician, usually the employee's personal doctor.

 

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Unpaid Interns Settle in Multimillion Dollar Class Action Suit

Unpaid Interns Settle in Multimillion Dollar Class Action Suit

Summer intern season is in full swing, and so are wage claim lawsuits from former interns seeking compensation for their unpaid work. We’ve written about this issue previously, however the latest round of lawsuits features some high profile companies and multimillion-dollar settlements for disgruntled former interns.

In the latest case, Grant v. Warner Music Group, two plaintiffs brought a collective action lawsuit for a group of former interns. The plaintiffs maintained that they should have been classified as employees, but were paid nothing or below minimum wage 

Without the work performed by the interns, the plaintiffs allege, Warner would have been forced to hire paid employees. This is a classic determinant of whether interns must be paid for their work, and Warner Music Group agreed to pay a settlement of $4.2 million.

Similar claims against Viacom and NBCUniversal this spring resulted in two settlements in favor of the unpaid interns—Viacom settled for $7.2 million and NBCUniversal for $6.4 million. For more information on when you should pay your interns see our previous post, or DOL Fact Sheet #71, which addresses internship programs under the Fair Labor Standards Act.

Photo courtesy of Wikimedia user Jericho under a Creative Commons Attribution 3.0 Unported License.

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DOL Updates Expired FMLA Forms

DOL Updates Expired FMLA Forms

Every employer in the country is required to display Family Medical Leave Act (FMLA) forms in a prominent position in the work place, but some employers have been using expired forms since the U. S. Department of Labor (DOL) issued forms expired on February 28, 2015. On May 27th, the DOL issued a new set of FMLA forms with an expiration date of May 31, 2018 to address the lapse. 

The new FMLA forms are the same as the previous set in every way, except that disclosure language has been added for the Genetic Information Nondiscrimination Act (GINA) indicating that medical providers should not share information regarding an employee’s genetic testing or genetic family history.

The new language has been added to several of the FMLA forms, including WH-380-E, WH-380-F, WH-385, and WH-385-V. The issue of genetic testing is a new one for employers, and will likely become a topic of interest in the years to come. The new disclosure language is meant to provide protection for employers who accidentally receive genetic testing or genetic family history information.

The new forms can all be found on the U.S. DOL’s website, www.dol.gov but are also listed here for your convenience:

Certification of Health Care Provider for Employee’s Serious Health Condition (WH-380-E)Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F)Notice of Eligibility and Rights and Responsibilities (WH-381)Designation Notice (WH-382)Certification of Qualifying Exigency for Military Family Leave (WH-384)Certification for Serious Injury or Illness of a Current Servicemember—for Military Family Leave (WH-385)Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385-V)

 

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US Supreme Court Makes Important Ruling in Religious Discrimination Case

US Supreme Court Makes Important Ruling in Religious Discrimination Case

In the case, EEOC vs. Abercrombie & Fitch Stores, Inc., the Supreme Court found that an applicant for a job at the retail store, who wore her hijab to an interview with Abercrombie & Fitch had engaged in a religious act that afforded her protection from religious discrimination.

The young woman in question, Samantha Elauf, interviewed for a position at Abercrombie & Fitch but was not ultimately hired. During her interview she was wearing a hijab, which would have violated Abercrombie & Fitch’s dress code prohibiting head coverings.

While her interviewer did not specifically ask if the hijab was worn for religious purpose, or whether this would necessitate a workplace accommodation, the company suspected that Elauf’s faith would necessitate wearing the hijab in the workplace. After the interview Ms. Elauf was determined to be a sufficiently qualified candidate, however was turned down for employment, as her hijab would have violated Abercrombie & Fitch’s dress policy.

Ms. Elauf filed suit claiming that the decision not to hire her was a violation of law.  In the initial trial the court sided with Ms. Elauf, and found that Abercrombie & Fitch’s decision constituted religious discrimination. That ruling was overturned in the 10th Circuit Court of Appeals, leading the Supreme Court to take up the case. Abercrombie & Fitch argued that its policy applied to all hats, and thus was not a decision made on the basis of religion. The Supreme Court, however, found that her wearing of the hijab was a religious act and therefore protected.

Employees in the United States have long enjoyed protection against religious discrimination, but this new Supreme Court ruling extends this protection even further. Under the old standard employers could not make hiring decisions based upon a prospective employee’s religious practice, but the new ruling will provide this protection even in cases where applicants have not indicated that they will require religious accommodation.

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When Do You Have to Pay Your Interns?

When Do You Have to Pay Your Interns?

There is a long standing, if unspoken, bargain between students seeking work experience and companies looking to identify young talent—internships. Students are given the opportunity to gain hands on experience, as well as a potential “tryout” for full time employment, while employers are given access to low (or no) cost labor as well as the chance to preview young talent for prospective future employment.

This bargain, however, is coming under fire as individuals are successfully challenging their classification as “interns” in the courts. While it is acceptable under the law to provide no pay to an intern, recent court rulings have further specified the types of employees that can be classified as “interns”. Specifically, the Fair Labor Standards Act (FLSA) requires that interns who work in the capacity of a regular employee receive minimum wage and overtime. Failing to meet obligations under FLSA exposes employers to a range of liabilities and legal action.

How, then, do you know when an intern is functioning in the capacity of a regular employee? The distinction can become somewhat difficult to decipher, however there are some general guidelines to follow. Interns shouldn’t be hired into specialized roles that no other employee in the company could fill, nor should an intern replace an employee. The availability of training and mentoring is helpful for distinguishing interns from employees, but the training should be general and not for the immediate benefit of the company.

A defined period with a specific start and end date also helps distinguish internships from employment, and it should be clear that a job is not guaranteed at the end of the internship period. It’s also important that both the employer and intern acknowledge that the position will be unpaid from the outset. Generally, interns are supervised and their work closely reviewed as part of the learning process—this helps distinguish them from paid counterparts.

While these guidelines are useful, there is a growing gray zone between internships and employment, and the Department of Justice is increasingly active in pursuing infractions. From the employer’s perspective, it’s best to consult with counsel on the structure and expectations for unpaid internship programs. For students looking at unpaid internships, consider what you’re being asked to do—it may be that your prospective employer should be paying you to fill that role!

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Top 10 Department of Labor Violations in New Hampshire

Top 10 Department of Labor Violations in New Hampshire

Every year the New Hampshire Department of Labor releases a list of top 10 most common labor law violations. As it turns out, the new list released for 2014 is identical to the 2013 list, however it still provides a good guide as to the common compliance pitfalls in New Hampshire employment. Here’s the list: 

Failure to pay all wages due for hours worked, fringe benefits, breaks less than 20 minutes, etc. (RSA 275:43 and Lab 803.01)Failure to keep accurate record of all hours worked. (RSA 279:27 and Lab 803.03)Failure to have a written safety plan, joint loss management committee and safety summary form, of required. (RSA 281-A:64 and Lab 602.02, 602.02, 603.02, and 603.03)Employment of Undocumented Workers Prohibited. (RSA 275-A: 4-a)Failure to secure and maintain workers compensation coverage and misclassification of employees. (RSA 275:42 I & II and RSA 281-A)Failure to provide written notice to employees of their wage rate, pay period, pay day and a description of fringe benefits, including any changes. (RSA 275:49 and Lab 803.03)Failure to pay 2 hours minimum pay at their regular rate of pay on a given day that an employee reports to work at the request of the employer. (RSA 275:43-a and Lab 803.03 h, i, j)Illegal employment of workers under 18 (not having proper paperwork, hours violations, or working in a hazardous environment). *RSA 276-A: and Lab 1000)Illegal deductions from wages. (RSA 275:48 and Lab 803.03 b, e, f)Failure to pay minimum wage for all hours worked. (RSA 279:21)
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Worker's Compensation: 5 is the Magic Number

The number of employees at a firm significantly alters the rules and regulations governing the way those employees must be treated.  For workers compensation, the number to know is five.  For example, all employers with five or more employees are required to develop temporary alternative work opportunities for their injured employees. This means if an employee is injured on the job and has physical limitations as a result, the employee is entitled to return to work in an accommodated position which takes into account the work injury. If the employer is unable to provide the temporary alternative work then the employee may be entitled to total disability benefits. This makes sense because the employee is capable of working in some capacity and would be back to work if not for the fact that the employer is unable to provide the necessary accommodation. The number five is also relevant when it comes to reinstatement of employees who have suffered a work injury. Employers with five or more employees must reinstate an injured employee back into his or her former position of employment upon request as long as the position still exists, is available and the employee is not disabled from performing the duties of that position with reasonable accommodations. This right to reinstatement extends 18 months from the date of original injury and provides important job protection for injured workers.  There are some exceptions to the right to reinstatement, but for most employees it means that their job must be held open, even if it is temporarily filled by another employee, during the period of absence due to a work injury.  Temporary alternative duty (TAD) provides protection for an employee while the employee is still disabled but able to work in some fashion, while reinstatement provides the opportunity to return to the employee’s original position even if the employee still requires some reasonable accommodation for the employee’s limitations. If you have questions about your right to return to work after a serious work injury, contact Attorney Rice for a free telephone consultation, or visit our website.
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SUPER BOWL OFFICE BRACKETS: FUN, SOCIAL, SUPER ILLEGAL?

In the United States, certain sporting events are ingrained into the very fabric of national culture- each year, hundreds of millions of people tune in for events like the Super Bowl and College Basketball’s March Madness. One common phenomenon is the office betting pool or bracket- often a lighthearted and social activity- however it is important to consider the legal status of this practice. Despite the fact that every year billions of dollars are wagered in unofficial office pools during the Super Bowl and March Madness, your office gambling is likely illegal.

Statutes in almost every state prohibit office gambling pools, and in every state but Nevada, gambling on college sports is illegal all together. Despite the questionable legal status of these office pools, they persist across the entire country.

Estimates suggest that 50 million American’s participated in March Madness office pools this year, with over $2.5 billion on the line

Some estimates suggest that total betting on the Super Bowl was over $10 billion this year

College football wagers are estimated to total over $60 billion

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Summer Hiring: What Work Can Teens Do?

Many businesses in New Hampshire are seasonally driven- tourism and summer residents raise the population and bring money into the state each summer.  Finding good seasonal workers is therefore necessary for businesses in order to meet inconsistent labor demand.  Each year, many of these seasonal workers are teens and students who are free during the summer months.  In terms of timing and availability, the fit seems ideal, however hiring teens has its own set of unique challenges due to state and federal youth employment regulations.  The Department of Labor wants minors to have positive employment experiences, but at the same time employers need to assure that these work experiences are safe and appropriate. In order to meet these twin demands, there are limitations and guidelines governing the type of work teens may perform. For example, 14 and 15 year olds employed in the restaurant or food service industries have very specific tasks that they are permitted and not permitted to perform: •They can perform cooking over an electric or gas stove with no open flame.  Cooking over a flame is not allowed.•They are permitted to operate deep fryers, but only those with automatic raising and lowering devices•Cleaning, repairing, or maintaining non-power driven cooking equipment is generally permitted, however these tasks are not permitted on any power driven slicers, processors, or equipment.•Baking is entirely prohibited to 14 and 15 year olds.  This includes everything from weighing ingredients to operating ovens. The current provisions have been in place since 2005, and it is very important to understand the practical implications for employers seeking to hire teens.  Teens can provide low-cost seasonal work, but employers need to assure that they are in compliance with existing regulation.  The list above is far from exhaustive, and when in doubt you should contact Rice Law Office, PLLC for a free phone consultation at 603-528-5299 or visit our website for helpful articles and information.
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Social Media in the Workplace: what is yours and what is theirs?

The proliferation of social media has now extended into the business world. It is common practice for corporations to connect with consumers through Facebook, Twitter, and other cyber-media channels.   While social media represents the most modern form of promotion and advertising, its explosive growth has left employers and employees with many heretofore unimagined policy challenges.   If an employee has accrued many followers or friends while posting on behalf of the company, what happens to the account after the employee leaves the company?  If an employee has a social media presence on behalf of the company, how can the company manage the content posted by the employee? In order to enjoy the advantages of modern social media channels, corporations need to be prepared with equally modern policy.  Here’s a quick introduction to handling social media related policy challenges:

Specify that the social media account belongs to the company, and that upon termination of employment the employee forfeits al l access to the account.Passwords are considered confidential proprietary information.  Be clear that passwords cannot be changed without explicit direction to do so.Corporate policy restricting the content employees may post on social media sites must be carefully framed.  It is ok to protect confidential information,but recent National Labor Relations Board(NLRB) guidance memos indicate that too much restriction may constitute a violation of employees’ right to discuss terms and conditions of employment.A prospective house bill would prohibit employers from requiring current and prospective employees to disclose social media passwords.Social media offers the opportunity for corporations to connect with consumers and the public on an individual basis, and is particularly effective in targeting the young and computer literate demographic.  While each company is unique, a social media presence is a logical practice is this digital age. If you have questions about your company’s policies, contact Rice Law Office today.
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Internal Investigations

Internal investigations are always sensitive matters, and in many cases employers will request that employees maintain confidentiality regarding the ongoing process.  However,not all policies of this nature are lawful. In 2012 the National Labor Relations Board (NLRB) found that some confidentiality policies constituted a violation of employee’s Section 7 rights.  The landmark case involved Banner Health’s policy of prohibiting employees from discussing any detail of an internal investigation with their coworkers.  The NLRB determined that there must be a “legitimate business justification that outweighs employees’ Section 7 rights” in order for such a policy to be lawful.

It is hard to say when business interests outweigh employees’ rights, and judgment regarding the validity of confidentiality policy will certainly be on an ad hoc basis.  However, the NLRB has released a set of guidelines under which confidentiality policy for internal investigations maybe valid. These include circumstances under which:

Witnesses need protectionEvidence is in danger of being destroyedTestimony is in danger of being fabricatedThere is need to prevent a cover up

There is a further a distinction which allows employers to request confidentiality, although they may not require it.  In all circumstances, internal investigations require careful and appropriate handling on the part of the employer so as not to violate employee rights. If you are uncertain or uncomfortable with the requirements of your employer during an ongoing internal investigation, you should not hesitate to contact legal assistance.

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Employers

Poster Rule Postponed

A recent National Labor Relations Board (NLRB) rule requiring private employers to display a poster describing employee’s right to unionize has been postponed indefinitely. The new rule, previously slated to come into effect April 30 of this year, faced strong opposition from business groups. These groups alleged that the NLRB had overstepped its bounds in attempting the institute the new regulation, that the rule served to create a new unfair labor practice beyond what was intended when Congress passed the National Labor Relations Act (NLRA), and that the regulation infringed upon employers right to free speech. Corporate interests additionally contended that the NLRB failed to perform satisfactory evaluation of the effects this new rule will have on small businesses. The NLRB refutes these claims, maintaining that the rule falls within the scope of the mandate Congress provided them under the NLRA.

Federal courts in both the District of Columbia and South Carolina examined the issue, each providing rulings which have delayed the poster rule’s promulgation. The U.S. District Court for the District of Columbia determined that while the NLRB was within its authority to create the new rule, classifying failure to display the poster as an unfair labor practice was a violation of the NLRA. South Carolina’s district court went a step further by deeming the NLRB’s attempt to institute the poster rule as an overreach of the directive provided by the NLRA. The South Carolina court clarified its belief that Congress intended the NLRB to serve in a reactionary role, stepping in to regulate only after a representation petition had been filed or there had been a charge of an unfair labor practice.

As it stands, there is no time line for the rule to come into effect. The NLRB plans to appeal the decisions from both the South Carolina and D.C. courts, however the appeals process is likely to take some time. For now, the issue remains unresolved, and the posters need not be displayed in places of employment.

Smoking Discrimination?

The Michigan company Weyco made headlines in 2003 by refusing to hire smokers, banning smoking on the premises, and then requiring all employees take random blood and urine tests for nicotine which if failed would result in termination. Weyco received a great deal of publicity and criticism for its new policy, but no law prevented them from firing employees who smoked. While this policy may seem attractive to some employers due to the ever rising cost of healthcare, it would not be permitted in NH. New Hampshire law makes it illegal for, "an employee to require as a condition of employment that any employee or applicant abstain from using tobacco products outside the course of employment, as long as the employee complies with any workplace policy." New Hampshire has laws that regulate workplace smoking, but also has the anti-discrimination law.

DOL Safety forms

Safety Summary Forms must be filed biennially by businesses with 10 or more employees. If you have filed in 2008, you will need to file for 2010 Safety Summary Form To see if you already filed, enter your Federal Id #, email address and year of submission. Safety Summary Form If you have any questions, email the Department of Labor at Safety. Those who file electronically should keep the NH Department of Labor updated concerning changes in the contact person s email address as well as any other pertinent information. You can receive updates and messages such as this by subscribing to the New Hampshire Department of Labor's Email Alerts  www.labor.state.nh.us/email_alerts.asp

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