Rice Law Office Blog

If you’ve been injured on the job, and especially in cases where there is some level of permanent impairment that limits your ability to work, you need to rely on your workers’ compensation to make ends meet. This compensation is so personal in nature that generally, creditors cannot seek a claim against it as they would a typical asset.

Only claims for medical bills and legal fees associated with the compensated injury may be made against workers’ compensation settlements in New Hampshire. There is another significant exception, however.

Since workers’ compensation is meant to be a safeguard for injured employees AND their dependents, spouses and dependent children are viewed as different from normal creditors in the eyes of the law. Claims for child support, therefore, may be enforced against workers’ compensation awards.

Even following a divorce, your former spouse may have a right to claim some portion of your workers’ compensation. It’s critical that you let your workers’ compensation attorney know from the outset if you might have any debts or obligations related to a divorce and or child support. The more your attorney knows, the more capable she will be in helping you to obtain and keep your benefits.

Image courtesy of Compliance and Safety under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

The Supreme Court chose to uphold to Affordable Care Act (ACA) in a 6-3 ruling that will have lasting impacts for President Obama’s legacy. The more immediate impact of the ruling, however, was to prevent millions of American’s from losing health insurance coverage purchased on federal exchanges. From the perspective of employers and health insurance providers, the ruling means a continuation of the status quo. Most companies have already made the necessary adjustments to comply with ACA standards, and won’t need to make any further changes.

There are, however, ongoing points of contention relating to the Affordable Care Act. Specifically, there has been some question as to whether all employers are required to cover contraceptive care for women without cost sharing. Currently, non-profit religious organizations as well as some “closely held corporations” may apply for an exemption to the contraceptive mandate.

On July 10, the government released final regulations for the coverage of preventative contraception services. Under these regulations, non-exempt employers must provide coverage without cost sharing for “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”

The regulations went on to define which “closely held for-profit entities” would be exempt from this requirement. Specifically, the company cannot be publicly traded and must have an ownership structure under which five or fewer individuals hold more than half of total ownership. In these cases, companies may file for an exemption, and separate coverage for contraceptive services will be provided to employees without involving the employers. 

While the ACA has likely faced its final major legal challenge, there will be ongoing questions around some of the more specific measures included under the law. Coverage of contraceptive services, in particular, remains a complicated point.

The Supreme Court has agreed to hear the case, Tyson Foods, Inc. v. Bouaphaeko, to determine whether time spent putting on and taking off protective equipment required for work is compensable work time under the Fair Labor Standards Act (FLSA). The suit is a collective action claim, and claimants include a number of Tyson employees who allege the company did not properly compensate them for time spent changing before and after their shift.

Many jobs require special protective clothing and equipment, however it is unclear whether the time spent putting on and taking off this equipment is compensable work time. In some cases, “donning and doffing” protective equipment can add up to a lot of time, and represents significant potential unpaid wages.

In Tyson Foods, Inc. v. Bouaphaeko, the company did pay its employees for time spent changing by estimating the duration of the activity and then adding wage based on that estimate to the employees paycheck.   Employees allege that Tyson’s estimates are far below the actual time required. A jury in a lower court agreed, and awarded nearly 6 million dollars in damages, 

Tyson has maintained the suit should not be granted collective action status as many of its employees take different amounts of time to change, and in fact wear different types of equipment. The plaintiffs have responded by referencing statistical sampling to demonstrate average changing times, a method the eighth Circuit Court has deemed allowed under the FLSA.

The Supreme Court will begin hearing oral arguments in the coming months, and their ultimate decision will have implications for workers wearing required protective equipment across the country.

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.

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 27^th, 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)

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 10^th 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.

A recent survey of employees around the world looked into the top reasons employees quit their jobs, and uncovered some interesting results that cross the globe—employees are most likely to quit their jobs over concerns around compensation and the potential for advancement.

The top 5 reasons employees leave their job in the United States are:

1. Minimal Wage Growth (78%)
2. Lack of opportunity to advance (75%)
3. Excessive overtime hours (72%)
4. A work environment that doesn’t encourage teamwork (66%)
5. A boss who doesn’t allow you flexibility (66%)

Particularly among millennials, who are now beginning to enter management roles, flexibility is a key consideration in employment. This group of workers represents the future of the global economy, and according to this study, while they want flexible work opportunities; they feel that their employers view flexible working as slacking off.

The new focus on flexible working is important for employers to understand because talented employees represent companies’ most important asset. With the rise of mobile technology and connectivity, the workplace is changing, as we’ve written before. Employers would be wise to take note of their employees’ feedback on this issue as a low impact way to retain young talent.

Photo courtesy of Wikimedia user Jacklee under a Creative Commons Attribution-Share Alike 3.0 Unported License.

A series of recent court rulings have begun to examine whether online contacts and profiles used for business purposes should be classified as trade secrets. Increasingly, online networking and media presence are critical assets for businesses. Some argue that while an employee’s LinkedIn and Twitter profiles bear the individual’s name, the contacts and network established in the course of employment should ultimately belong to the company.

In a recent case where an employee left his company to start a competing venture, the US Central District Court of California ruled that the employee’s LinkedIn contacts could be considered a trade secret. Another California court ruled in 2011 against an employee who continued using the Twitter account he’d used for his employer even after leaving the company. There is some division on the issue between states—in 2011 a Pennsylvania court found that LinkedIn contacts were not trade secrets.

The current reality is that legal understanding and precedent have not caught up with new business models that rely on online outreach as a critical commercial tool. Every major brand and corporation has a significant online presence used to build visibility, establish contacts, and ultimately drive business. 

While there is a lack of legal clarity around the question, employers should seek to establish clear confidentiality agreements with employees that clarify ownership over social media accounts and profiles. Employees should also seek a clear understanding of their ownership of online resources, and if necessary establish separate personal and professional accounts.

Photo Courtesy of U.S. Department of Agriculture under a Creative Commons Attribution 2.0 Generic License.

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!

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: 

1. Failure to pay all wages due for hours worked, fringe benefits, breaks less than 20 minutes, etc. (RSA 275:43 and Lab 803.01)
2. Failure to keep accurate record of all hours worked. (RSA 279:27 and Lab 803.03)
3. 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)
4. Employment of Undocumented Workers Prohibited. (RSA 275-A: 4-a)
5. Failure to secure and maintain workers compensation coverage and misclassification of employees. (RSA 275:42 I & II and RSA 281-A)
6. 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)
7. 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)
8. Illegal employment of workers under 18 (not having proper paperwork, hours violations, or working in a hazardous environment). *RSA 276-A: and Lab 1000)
9. Illegal deductions from wages. (RSA 275:48 and Lab 803.03 b, e, f)
10. Failure to pay minimum wage for all hours worked. (RSA 279:21)

With Mother’s Day just behind us, most of us probably spent some time and money in appreciation of our Mom. On average Americans spent $169 on Mother’s Day in 2013— a better use of our resources might be reviewing the current state of gender equality in the workplace. Despite our heavy spending on Mother’s Day, the US could do significantly more to ensure that moms everywhere have equal opportunity, pay, and protections in the workplace. Here are some areas we could improve on:

1. Women still earn significantly less than their male counterparts. Full-time, year round female employees earn 77 percent of their male counterparts, and while this gap has narrowed over time, there’s still significant work to be done.
2. Women are significantly underrepresented at the highest levels of corporate management, and female executives are still a rarity. Only 7 percent of S&P 1500 companies have a top female manager, up from 1.6 percent in 1992. Unfortunately, most companies with a woman in their top five executive positions had only one woman in that group.
3. The United States is one of only two countries in the world that provided no paid time off for new mothers. While we do have laws in place that ensure women can take time off without risking their job following the birth of a child, it is not paid, and lengthy leaves are often frowned upon.

Some states do provide greater protections for women in the workplace, extending beyond what is federally required. The state of California has mandated 6 weeks of partially paid maternity leave since 2002, and more than 90% of companies in the state have reported positive or neutral effects.

New England states also tend to provide greater protections for female employees—a 2015 study included Vermont (#1), New Hampshire (#4), Massachusetts (#5), and Maine (#8) in its top ten most friendly states for working mothers.

While most moms appreciate flowers, chocolate, and jewelry on Mother’s Day, there are bigger (and more meaningful) gifts we could be giving to mothers across the country. Equal pay, greater professional opportunity, and paid maternity leave would be good starting points.

Image courtesy of Wikimedia user Unforgettableid under a Creative Commons Attribution-Share Alike 2.0 Generic License.

Several weeks ago Floyd Mayweather cashed in on the largest purse in boxing history by pummeling Manny Pacquiao. His victory in the ring brought back into the spotlight his unfortunate history of domestic abuse. Mayweather joins a growing list of high profile athletes who have been thrust into the national spotlight as a result of alleged or actual domestic abuse. 

In New Hampshire domestic abuse is no longer viewed as private problem, and New Hampshire legislators have taken action to make it unlawful for employers to discriminate against victims of domestic abuse.

New Hampshire already had a longstanding law which prohibited employers from discriminating against victims of a crime, but RSA 275:71, passed on September 9, 2014 extends specific protection for those who have suffered domestic violence, sexual assault, harassment, or stalking.

As a result of the new law, victims of domestic abuse will have protections that ensure against discrimination in decisions around hiring, promotions, and discharge or demotion. Earlier versions of the bill included more expansive protections, but the Senate and House ultimately compromised to pass the bill in its current form.

It is estimated that one in every four women will suffer domestic abuse in their lifetimes, and the vast majority of these cases will go unreported. There is still a lingering stigma around discussing issues of domestic abuse, and enshrining protection for victims in employment law is a positive step.

As of January 1 2015, New Hampshire employers are required to give equal pay for equal work, regardless of gender. The new law prohibits employers from paying employees of one sex less than employees of the other sex for equal work that (1) requires equal skill, effort, and responsibility and (2) is performed under similar working conditions.

The law also provides protection for those involved in an equal pay dispute, and makes it easier for employees to obtain wage information. Employers in New Hampshire will need to review their wage practices to ensure compliance with the new law. Violation of the new laws could result in a fine up to $2,500, but employers would also be liable for unpaid wages and liquidated damages. 

This law is part of an effort to close the gender pay gap nation wide—women still make about 78 percent of what their male counterparts take home. In many ways, the states have taken the legislative lead on addressing this issue. New Hampshire is one of 45 states to enact legislative protection for gender equal wages.

There are exceptions that allow for employers to pay at different rates when the differential is determined based upon a factor of demonstrable value. Differences in seniority, performance, and education (among other factors) would still be acceptable reasons for pay differential.

President John F. Kennedy signed the Equal Pay Act in 1963, but women's wages still lag behind their male counterparts.  In the wake of this new state law, employers need to be sure that pay raises, promotions, and HR processes reflect their new legal obligations. Doing so will not only provide legal protection, but constitute a step towards establishing equal pay as a reality.

A recent decision by the first circuit court of appeals found that a bisexual employee of Bank of America was discriminated against and wrongfully terminated based upon her sexual orientation. While the past decade has seen real advances on the debate around sexual orientation and gender identity, including strengthened legal protections in the workplace, there is still progress to be made. Shelly Flood’s story highlights how non-heterosexual workplace relationships can lead to employment discrimination.

Shelly Flood, a Bank of America call center employee in Maine, began a relationship with a female member of the janitorial staff while employed by Bank of America. After her supervisor saw a photo of the couple, Ms. Flood began to notice hostile treatment, including declining work performance reviews and warnings against fraternization with her significant other in the work place.

These warnings came despite the fact that heterosexual employees regularly discussed their relationships, marriages, and sexual activities in the workplace. The final blow came after she was forced to attend a work meeting in which other employees discussed plans for an upcoming bridal shower, including graphic details regarding sexually explicit party favors and lingerie. Ms. Flood failed to report to work the next day.

After that, Ms. Flood maintained that she was too distraught to return to work due to the hostile work environment. Her supervisor recommended that Bank of America follow the procedures for job abandonment, which resulted in Ms. Flood’s firing from Bank of America. 

The first circuit court ultimately found that Ms. Flood was harassed and wrongfully discharged on the basis of her sexuality under the Maine Human Rights Act. The higher court reversed the district court’s decision. Although this case was specific to Maine law, New Hampshire state law also provides protection for afforded its employees against discrimination on the basis of sexual orientation under RSA 354-A.

Uber, the mobile app based transportation service, had more than 150,000 active drivers as of December 2014, but no employees. Uber maintains that all of its drivers are “independent contractors”, a status which allows Uber to pass off liability to drivers while also avoiding the need to provide the drivers benefits. This stance has been controversial, and is being challenged in San Francisco Federal Court.

Should the court rule that drivers are employees and not independent contractors it would be a significant blow to Uber’s business model. Today, Uber does not have to provide drivers with workers’ compensation, social security, or unemployment—that would change if the court ruled drivers are indeed employees.

The decision facing the court is not a simple one. Uber drivers supply their own cars and work on flexible schedules, typical hallmarks of independent contractor status. However, the drivers perform the core function of the company and are subject to detailed requirements and regulations, leading drivers to argue that they should be classified as employees.

A ruling distinguishing the drivers as employees would have significant implications for not only Uber, but other network based service delivery companies including Lyft, cleaning service Homejoy, and delivery service Postmates. These companies represent a new type of flexible employment opportunity facilitated by the digital age, and legal determinations now will set the rules of the road moving forward.

In New Hampshire, Uber is now active in Nashua, Portsmouth, and Manchester. While most agree that it provides a convenient service, it is already facing pushback against its driver screening process, something that has led it to exit other states. As Uber and companies like it continue to grow, there will be more legal questions in need of answering.

A recent ruling from the Eleventh Circuit Court of Appeals has expanded protections to allow for extended recovery for veterans suffering from Post-Traumatic Stress Disorder (PTSD).

The decision from the Eleventh Circuit Court means that protections for injury or illness must now include PTSD. Employers are required to accommodate veterans who need extended recovery time for PTSD, reflecting the growing appreciation and recognition for this serious challenge.

The U.S. Department of Veteran’s Affairs estimates that between 11% and 20% of all U.S. veterans returning from Iraq and Afghanistan suffer from PTSD. Department of Defense data indicates that 2.5 million men and women were deployed to Iraq and Afghanistan between 2001 and 2013, meaning there are 275,000-500,000 veterans who have struggled with PTSD as a result of the two conflicts. 

Military veterans enjoy certain protections and privileges when it comes to reemployment following a period of military service. The Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Uniformed Services Employment and Reemployment Rights Act (USERRA) all enshrine this status in statutory law. 

Under USERRA, an employee returning from a period of uniformed service lasting longer than 180 days has 90 days to apply for reemployment following the completion of their service, at which point the employer must allow the returning employee to resume work.

With the NBA playoffs in full swing, and the NCAA tournament just behind us, employers have the opportunity to review policies around office betting pools. While friendly office bets around March Madness, the Super Bowl, and other events are often seen as harmless fun, there are serious downsides to that type of activity.

The first concern comes down to worker productivity. While this is admittedly less of a concern for a one-off event like the Super Bowl or the Academy Awards, a betting pool based on events like the NBA playoffs or NCAA Basketball Tournament can offer a month long distraction. Given the very real ability to monitor (or even watch) every game from your computer at work, all workers face the temptation stay informed throughout the day at the expense of their work related duties.

The second worry centers around the legality of office betting pools. Many states have laws that prohibit office gambling, and while it is unlikely that local law enforcement officials would spend significant resources enforcing this law given the widespread prevalence of office gambling, it may still be illegal under the letter of the law.

Companies concerned with potential legal infraction, or the almost certain decrease in productivity, associated with office betting pools have the option of posting clear company policy prohibiting the activity. While office betting pools can be fun, they’re likely neither worth the risk nor the distraction.

On March 25, 2015 the Supreme Court ruled that employers must provide the same work accommodations for pregnant employees with work limitations as they do non-pregnant employees with a similar inability to work. The ruling clarifies and extends employee protections under the Pregnancy Discrimination Act, requiring employers to provide “legitimate, non-discriminatory” reasons when denying accommodation to a pregnant employee.

In Young v. United Parcel Service, Inc. (UPS) the plaintiff worked as a part time UPS driver, and after becoming pregnant her doctor advised that she should not lift more than 20 pounds as she had suffered several miscarriages in the past. UPS would not accommodate this restriction, and Young ultimately lost her job for choosing to stay out of work. As a result, the plaintiff lost her health insurance and was forced to take on the costs of her pregnancy without coverage. 

Young brought an action against UPS, but the company maintained that they were only required to provide work accommodations for employees that were injured on the job, had lost their Department of Transportation Certificates, or were disabled under the Americans with Disabilities Act. After the Fourth Circuit Court of Appeals sided with UPS, the case was picked up by the Supreme Court, which ruled in Young’s favor.

NH law already provides pregnant employee with extensive job protection and time off with right to return to work after, this ruling clarifies accommodations for pregnant employees while they are on the job.

What does this mean? Companies that offer light or accommodated work duty for employees with work limitations have to provide similar accommodation for pregnant employees. Employers need to be proactive in updating their policies, and pregnant employees should be aware that they might have the right to accommodated work during the course of their pregnancy.

Since August 2014, New Hampshire has had a law in place that requires most health care facilities and licensed providers to create a written drug testing policy that also addresses the issue of diversion of controlled substances. While the legislation does not spell out the specifics for the internal policy, it does require that it apply to all employees who “provide direct or hands-on care to clients.”

Last spring USA Today reported that there were more than 100,000 medical professionals abusing prescription drugs, and that this abuse posed a threat to patient care and health. One of the core findings was that, in many cases, it was extremely easy for these healthcare professionals to access prescription, and that they were particularly adepts at hiding their addiction. Understandably, the report sparked a national debate on how best to combat this problem.

The law also requires testing when there is reasonable cause to believe an employee is impaired, but generally leaves room for facilities to select their own policy so long as it is “appropriate to its size, the nature of services provided and its particular setting.”

The ultimate implementation of these policies will vary a great deal across the state, but all healthcare providers need to be aware of the new requirements. Developing a policy which protects patients means establishing procedures to monitor controlled substances in the medical facility, provide confidential employee assistance programs, as well as maintain consistent reporting and discipline standards will be critical for all health care providers in New Hampshire.

Photo courtesy of FtWashGuy under a creative commons license.