Rice Law Office Blog

As we have addressed in our other Blogs about work place injury, Worker's Compensation insurance in New Hampshire covers nearly every injury suffered by employees as long as the injury is suffered during and in the course of employment.  However, we have also told you there are exceptions. 

Among the exceptions to coverage are for example, instances in which an injury is caused in whole or in part by the employee’s intoxication.  In such cases, the law says an employer and it's insurance company is NOT liable for that injury even if it occurred in and during the course of work.

However, as it turns out, the conversation doesn’t end there.  There is an exception to the exception!

Here's The Twist:

The intoxication exception does not apply if the employer knew that the employee was intoxicated. That’s right, if the employer knows about the intoxication and the employee gets injured at work, there still might be coverage under worker’s compensation.

At first it might seem hard to imagine how this could occur, but upon further consideration, a few circumstances might come to mind...

1) The first three days of an injury might go unpaid

Did you know that even if an injured employee's claim was accepted by the workers' compensation insurance carrier, the employee is not entitled to be paid any compensation for lost wages for the first three days of disability unless the disability continues for 14 days or longer? 

It's true. The first three days of disability go unpaid unless the employee's injury lasts for 14 days or more. This means that employees may need to make use of sick leave to supplement workers' compensation for injuries that don't result in prolonged time out of work.

2) Compensation rates can vary by profession

New Hampshire does not require employers give paid sick leave to their employees, and that can lead to some complicated situations as we enter flu season. The flu can pose an inconvenience for any employer by impacting employee availability and productivity, but it also poses a challenge from a legal perspective as employers sort through how to manage absences and flu shots.

Certainly many employers provide their employees with paid sick time voluntarily. This practice is good business for several reasons which go beyond philanthropy.  With the lowest employment rates in the country, New Hampshire employers have to remain competitive to attract and keep the best employees, and fair and even generous benefit packages are part of this effort. The other reason, of course, is that employers who might not want to offer paid sick leave as a cost savings measure may find they have made a penny wise, pound foolish decision.  The fact is, employers are more likely to lose money when they scrimp on sick leave by encouraging sick employees who can’t afford to lose a day’s pay to come into work, spreading their germs for all to share.  Many would argue the small cost of a well-managed paid sick leave policy more than pays for itself in greater employee satisfaction and less disruption to productivity.  

As an added measure to reducing the impact of flu season, some employers also offer flu shots to employees.  Still other employers go so far as to make vaccinations mandatory.  While mandatory vaccination policies are generally viewed as lawful, there must be exceptions available. Specifically, employees may seek to opt out of vaccinations on the basis of religious beliefs and the protections offered under Title VII of the Civil Rights Act.  Employees may also opt out if they have a qualifying medical issue that would be exacerbated by the flu shot.  If your employer requires flu shots and you’d rather not participate, ask if there is an ability to opt out.

For employees who need more than just a few days off from work, there may be other benefits or protections available to supplement sick leave. Extended illness or injury that is considered serious of disabling may qualify an employee for disability insurance payments and or job protection under the Family Medical Leave Act or the state or federal laws on discrimination. Employees who have been employed one year, have worked 1250 hours, and work for an employer at a location with more than 50 employees within 75-mile radius, are eligible for up to twelve (12) weeks of unpaid leave under the FMLA. The ADA and NH’s Disability Protection Statute RSA 354-A may offer right to accommodations or protection from unfair treatment related to your disability.  

Finally, employees who become ill or are injured in and during the course of work may be eligible for workers’ compensation, which offers not only payment for lost wages and medical bills, but compensation for permanent injuries and job protection in the form of alternative work and right to reinstatement.

As one employer recently found out, neither "primary" nor "secondary" employers may retaliate or discriminate based on FMLA protected conduct in a joint employment setting.

A recent fourth U. S. Circuit Court of Appeals decision addressing primary and secondary employer responsibilities under the Family and Medical Leave Act (FMLA) brings into question: Who's really responsible for the proper implementation of these important employee rights in the setting of joint employment?

In the case of Quintana v. City of Alexandria, No. 16-1630 (4th Cir., June 6, 2017), The fourth US Circuit Court of Appeals reversed the lower court's decision on summary judgement and found that the plaintiff, had provided strong evidence that the city of Alexandria, Virginia was her primary employer despite the fact that it had engaged a third-party administrator and staffing company to administer the payroll for her position.

Facts of the Case

We get this question all the time, because although New Hampshire law requires employers (with 5 or more employees) to provide injured workers with temporary alternative duty and an 18 month right to reinstatement, this is no guarantee that the employer will take the employee with restrictions back.

In fact, employers often refuse to provide work to injured employees who want to return but who require accommodations due to restrictions associated with the injury.  If this happens to you, there is help available.  An attorney experienced in both worker’s compensation and employment law can help injured employees traverse the rocky road of reinstatement by combining these two areas of law to maximize recovery and job protection.

ALTERNATIVE WORK OPPORTUNITIES & TEMPORARY ALTERNATIVE DUTY

Under New Hampshire worker’s compensation law, all employers with five or more employees are required to develop alternative work opportunities for injured workers.  This temporary alternative duty (TAD) is aimed at transitioning employees back to work during their period of recovery after a work injury.

RIGHT TO REINSTATEMENT FOR 18 MONTHS

Employers (with five or more employees) are also obligated to offer reinstatement to their  injured employees for up to 18 months from the date of injury.  The employee must request a return to the former position and establish that he or she is not disabled from performing the duties of the position with reasonable accommodation. 

Employees who suffer an injury at work may be eligible for additional coverage and workers' compensation benefits.  It’s important to be informed right from the start to get the greatest protection possible.

Worker’s compensation benefits include:

• Wage replacement benefits
• Payment for medical bills
• Job protections 
• Payments for permanent injuries

In addition, some cases end up settling for what is called a lump sum settlement.  This is only entered into when both sides agree and it usually involves a final payment with an agreement to end the right to many of the benefits. 

The process for making a claim begins when the employee files a first report of injury to give notice to their employer of the fact that an injury took place at work. This notice then triggers a claim being filed with the Worker's Compensation insurance company who will then review the claim and make a determination as to whether they will cover the claim or not. 

When an employee gets hurt during and in the course of work, it is usually true that the "exclusive remedy" for the worker’s losses comes from the workers' compensation laws and the workers' compensation insurance company. However, that isn't entirely true. While the employee’s exclusive remedy against the employer comes from workers' compensation (assuming the employer carries workers' compensation insurance), the employee may also obtain damages or benefits from another person who is not the employer and who is responsible for the damages suffered. This is what's known as a "third-party claim."

Workers’ Compensation As The “Exclusive Remedy” for Injuries At Work.

Usually, if an employee gets hurt at work, the employee can make a claim for workers' compensation, but the employee cannot file a lawsuit against the employer. This is generally thought of as a good thing, because it means that employees who are hurt at work typically do not have to file a lawsuit with the time and cost that entails in order to get benefits.  Lawsuits are tough, and in order to get paid under a personal injury claim, the injured person has to prove that someone else was negligent and responsible for the injury. That’s a problem for two reasons.

• First, not all injuries at work ARE caused by someone else. Often they are just bad luck, or might even be due to the employee’s own mistake.  Under workers’ compensation, these injuries are covered regardless of whose fault it is or if there is any fault.  As long as the injury is work related, it is covered, and that is a tremendous benefit. 
• Second, personal injury cases can take years. In the meantime, the injured person might not be able to work, and the medical bills will continue to stream in.  In a personal injury claim (for an injury that happens outside of work), there is no built in coverage to help pay medical bills or to cover the lost wages that occur while the lawsuit is going on.  If the injured person doesn’t have health insurance, they are in a difficult place, as they can’t force the other person to pay for those bills until they can prove their case and show the other person was at fault. Similarly, lost wages are not paid as they occur, but only after settlement or a favorable judgment in court.  Last but not least, there is no guarantee of job protection for a person who is out of work for an extended time during the pendency of a personal injury law suit. 

As a result, people with serious injuries that occur outside of work have to hope they can prove someone else was liable, but they also have to figure out how to hold on financially while the lawsuit is pending.  This can be a huge stress, as the courts are backed up and this process can take time.

Most employees know that if they are hurt during and in the course of work that they are likely entitled to workers' compensation benefits to help them with their lost wages and medical bills as a result of their personal injury. Few employees are aware, however, of the time limitations for providing a notice of personal injury or filing a workers' compensation claim and the consequences of late filing are huge.

Employees who fail to complete a notice of injury or fail to also file a workers' compensation claim within the appropriate time limits might lose out completely in their benefits if they are not careful. 

Here is what you need to know about filing a notice, claim and appeal if you get hurt at work:

1. Notice of injury.  

Claims for workers' compensation injuries begin with something called a "notice of injury."

The Department of Labor has announced its labor law training seminars. They are open to the public, free and a great way for employers and employees alike to learn about the rights and obligations in the New Hampshire work place. Registration is easy, just follow the link: 

http://www.nh.gov/labor/news-events/events/index.htm

The seminars are offered on different dates and in different locations throughout the State of NH, and for your convenience are listed below. Please note that some sessions are already full, so visit the above link to check availability and to sign up.

Session dates and locations:

New thresholds for overtime pay have some up in arms, while others are jumping for joy, claiming it's about time!

After 12 years, the United States Department of Labor has taken steps to extend overtime pay protections by updating the regulations defining which white-collar workers are protected by the Fair Labor Standards Act's minimum wage and overtime standards. As of December 1, 2016, any worker engaged in interstate commerce or employed by a business with more than $500,000 in revenues, must either be paid a minimum salary of $47,500 per year or be paid time and a half for any hours worked over 40. Likewise, the total annual compensation requirement for highly compensated employees (HCE) will increase from $100,000 per year to $134,004 per year. Future automatic updates to those thresholds will occur every three years, beginning on January 1, 2020.

The minimum standard salary and compensation levels needed for executive, administrative and professional workers to be exempt had been $455 a week or $23,660 a year. As of December 1st, those weekly salaries will have to be a minimum of $913 a week. The rule does allow for employers to reach this minimum with lower weekly salaries, in some cases, such as non discretionary bonuses.

For those who question whether this new threshold has any fair relation to actual market rates or job descriptions, the DOL has an answer. This salary level and those to follow will be set to the 40th percentile of earnings for a full-time salaried worker in the lowest wage census region. (Currently that region is the south where workers in the 40th percentile earn $913 per week on average and $47,476 for a full year). The rule will require those salary levels be adjusted as necessary every three years.

Critics argue this rule change could lead to disastrous consequences for the economy as employers seeking to avoid the increased costs of salary or overtime will inevitably demote salaried workers to hourly positions and then cut or limit their work week to 40 hours per week. That may be true, but to meet demands of the work, they will likely have to create more jobs to take up the slack.

I recently read an article on LinkedIn by a recruiter, Bruce Hurwitz, entitled "When interviewing for a job, lose the ring!"

From his bio, he is clearly a well respected leader in his field and his article caught my eye first because it touched on my areas of practice in plaintiff employment law, but it also struck me in a more personal way.  I’ve linked his article so you can read it for yourself, but for me, as a married working woman and a mom to three optimistic initiates to the workforce, it was sad to hear this kind of advice being given to people starting out, so I’d like to offer another perspective. 

You see, when I graduated from law school, this was common advice-- which I promptly ignored. Not only were we, as future female attorneys, told to take off our wedding rings for the interviewing process, but I had some friends who were actually told to start this practice well before the interviewing season, in order to avoid a ring tan line. Yes, seriously. None of our male classmates were giving this advice. In fact, I suspect if they had asked, the advice would have been to the contrary. Most likely, where gender stereotypes prevail, wearing a ring might be considered a positive thing for a young male. 

Let's face it, this advice was entirely based on prominent stereotypes about gender, marital status, and the assumed impact of these things on performance in the workplace. The assumption was engaged or married females would somehow be less committed, productive or dedicated to their job. Likewise, married male attorneys would benefit from this institution, creating greater stability and a desire to earn more to support their growing family. The assumption was that marriage meant babies, distraction and a decrease in quality and quantity of legal output when it came to women. By comparison, no one considered that fathers might choose to take time off or seek the dreaded "balance" in their work and family life. Instead, there was a bold assumption that men would work on, without distraction when and if babies came into the picture.

Back then, I took the truth of this advice for granted. I assumed that many if not most of the firms with which I interviewed, would judge me in some manner, probably to the negative, if I were to interview wearing my wedding band. (I will note, no one ever mentioned the size of the "rock" as also being intimidating to women or potentially belittling to my character even back then). While I acknowledged the fact of prejudice, I was not willing to hide my truth to avoid the consequence of it. Perhaps I was naive (I was), but despite being young and unsure of myself in many ways, I was clear about one thing; I didn't want to work for a firm that would hire me (or not hire me) on the basis of my marital status. I chose to marry, I had the right to marry (as many did not back then) and I was happy with my choice. 

1) Try to resolve the situation informally by meeting with your supervisor to discuss your concern.

Of course, this only works if the person that you believe is responsible for the discrimination is not your supervisor. If the person treating you unfairly is your supervisor, you might try contacting a human resource staff person or whomever is designated in your employee handbook to address workplace issues.

It's a great idea to review your employee handbook policies on discrimination before you undertake this step.  Further, if you are a member of the union, you will want to consult with your union representative. If the informal approach is inappropriate for your circumstances, you may want to consider more formal steps to resolve the situation, such as filing a discrimination charge.

2) Educate yourself about your rights 

Get educated about the laws and policies that impact your wage rights. You can visit the Equal Employment Opportunity Commission website which enforces the Equal Pay Act and Title VII of the Civil Rights Act of 1964. You might also want to visit the federal, or your state Department of Labor website, or contact an attorney who provides free consultations.  

1) Men and women must be paid equal wages if they perform substantially the same work under the Equal Pay Act.  

"Equal pay" refers to more than just your paycheck. Under this law, all employers must provide "equal pay" including: equal salary, overtime pay, bonuses, stock options, profit-sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses and benefits.

2) Your employer cannot discriminate against you on the basis of your race, color, religion, sex or national origin in any terms or conditions of your employment, including compensation hours and benefits. 

 Under title VII of the civil rights act of 1964, any employer with at least 15 workers is required to provide equal employment opportunity. This means employers are prohibited from offering different pay for individuals doing the same or similar job or from employing other practices which would result in discrimination on the basis of a protected class such as denying promotions or taking other actions which would unfairly impacted employees' pay, work conditions or job security.

Under New Hampshire's discrimination law, RSA 354 – A the list of employees covered under the law is expanded to include a prohibition of discrimination on the basis of marital status, sexual orientation and pregnancy.

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?

Today, female workers earn more than 20 cents less on every dollar of income as compared to male counterparts performing similar work. This pay gap has proven persistent despite previous policy efforts to bring gender equity to the pay scale. But, recent legislative action in California and Ohio as well as at the federal level has the potential to close the pay gap between men and women in the U.S. workforce.

The U.S. already has federal legislation, the Equal Pay Act, in place to prevent against gender based wage discrimination. While the Equal Pay Act does provide protections for workers seeking equal wages, many feel that we need to go further given the continued gap. The pending Paycheck Fairness Act could be passed this year, and would strengthen protections provided under the Equal Pay Act.

Ohio currently has a bill pending, House Bill 330, which would provide these types of protections. If passed, state and local governments would be required to determine the value of comparable work across job categories. The law in Ohio would also require companies receiving state contracts or receiving state funds to meet an even higher standard along with providing protections for employees against retaliation for discussing or sharing salary information.

California’s new Fair Pay Act may be the most expansive fair pay law in the country, and has the potential to set a new standard for other states considering this type of action. Women across the country want be paid at the same rate for the same work as their male peers, and employees and employers alike should be aware of their obligations when it comes to gender equal pay.

 Photo courtesy of Flickr user Seattle Municipal Archives under a Creative Commons Attribution 2.0 Generic License.

As the end of one year wraps up and a new one approaches, employers and employees alike often find themselves setting new goals for the new year. For employers looking to tighten their belts and increase profit, this sometimes means a decision to reduce or reorganize the workforce.  Some employers try to ease the shock (and reduce their risk of lawsuit) by offering employees a severance package in exchange for a release of all claims. These offers can be just the bridge and employee needs to make it to their next job or a Trojan horse offering a shiny package with very little value.

It can be frightening if you're the one caught in this tide of change, but you're not alone. Take a deep breath and consider getting a consultation with an experienced employment attorney- a few hundred dollars could save you thousands in the long run. Here are a few tips to get you started:

The First thing you need to know: Employees in New Hampshire are not automatically entitled to severance in the event of a reduction in force or layoff. 

That said, where employers establish a severance program voluntarily, it may become a right in accordance with the union collective-bargaining agreement or under ERISA, a federal law governing employee benefits. Therefore, if you've been selected for a layoff, you will want to ask your HR representative if the company offers a severance package.

Second, employers rarely offer severance without asking for something in return. 

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 billion
• College football wagers are estimated to total over $60 billion
• Estimates suggest that 50 million American’s participated in March Madness office pools in 2015, with over $2.5 billion on the line
• All 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.

Pregnancy and childbirth demand huge amounts of time and energy from both parents, and the law provides for special benefits and protections for employees having a child. Many companies don’t have a clear understanding of their obligations towards employees expecting a child, and as protections expand in the wake of a new Supreme Court ruling employees should seek to understand the protections they are offered under the law. 

Employees should actively educate themselves on their rights, and be sure they receive the benefits they are owed before and after the birth of their child. Employers are obligated to provide accommodated work duties for pregnant employees with physical limitations and allow leave time for employees expecting a child. 

Companies cannot discipline or discharge an employee based upon pregnancy.  New Hampshire law has long been at the leading edge of protecting rights of pregnant employees and provides protections for the entire period of disability related to pregnancy which could include time out of work for conditions such as pre-term labor or postpartum depression.

Employees who have not been provided with the appropriate benefits and protections may be owed compensation—AutoZone recently lost a case and was forced to pay $185 million in damages after firing an employee following childbirth.  Companies have an obligation to their employees, and there are legal consequences to not meeting them.

As an employee, if you’re expecting a child and want to understand more about your rights and protections at work you should contact a lawyer.  You have a right to time off and protection of your job status.

The Occupational Safety and Health Administration (OSHA) may soon have a rule in place that will result in centralized electronic records for all workplace injuries and illnesses.  The rule, “Improve Tracking of Workplace Injuries and Illnesses” was submitted to the Office of Management and Budget for final review in October and could be approved by late 2015.

OSHA first proposed the new rule requiring certain employers to submit electronic records of injury and illness in the workplace on either a quarterly or annual basis in November 2013.   OSHA would then establish a website open to the public where anyone could search injury and illness records for employers required to submit the records.

The rule was amended in 2014 to include protections for employees reporting illness or injury.  The amendment prevents the employer from taking retaliatory action or requiring an unduly burdensome process for any employee reporting injury or illness.

The rule is in the final stages of approval, and will likely come into effect soon.  A publicly accessible record of workplace injuries and illnesses is a great resource, and something employees should take advantage of as they consider employment opportunities.

 Image used under a Creative Commons Zero License.