Rice Law Office Blog

With the primary less than a year away, and candidates from both parties launching their campaigns, many American are beginning to turn attention towards the 2016 elections. Despite the mass of attention the process will attract, many voters are unaware of their state’s policy towards providing time off to vote.

New Hampshire employers aren’t obligated to give their workers time off to vote, there are options for NH voters. Employees who must either be physically present at work or in transit to or from work during polling hours have the right to vote by absentee ballot.

New Hampshire is one of 20 states without a specific law addressing voting leave from work. Most states do have some policy towards voting leave from work, including the 23 states that mandate paid time off for voting.

Voter turnout in the U.S. has underwhelmed in recent years, and understanding your rights is an important step towards making it to the polls. Democracy works best when citizens engage in the political process, and most of all, vote!

Photo courtesy of Wikimedia user Tom Arthur under a Creative Commons Attribution Share-Alike 2.0 Generic License.

This January the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) released proposed updates for regulations on sex discrimination for federal government contractors and subcontractors. The updated guideline aims to align with changes in the law and the workplace that have taken place since the guidelines were last revised.

The OFCCP hadn’t substantively updated its Sex Discrimination Guidelines since their original adoption in 1970, resulting in a set of guidelines that was confusing and difficult to apply to the modern workplace.

Some of the shortfalls of the old guidelines include: failure to address the full range of discriminatory wage practices; failure to address accommodations for workers affected by pregnancy, childbirth, or related medical conditions; and failure do address sex-based stereotyping related to caregiving.

The OFCCP factsheet addressing the proposed guidelines highlights some of the changes, and indicates the proposed rule would: 

• Clarify that leave for childcare must be available to men on the same terms as it is available to women.
• Confirm that contractors must provide workplace accommodations to women affected by pregnancy, childbirth, and related medical conditions comparable to the accommodations that they provide to other workers similar in their ability or inability to work, such as workers with disabilities or occupational injuries.
• Confirm that contractors must provide equal benefits and equal contributions for male and female employees participating in fringe-benefit plans.
• Clarify that adverse treatment of employees because they do not conform to gender norms and expectations about appearance, attire, and behavior is unlawful sex discrimination.

For the full fact sheet, follow this link. If you have are a contractor or subcontractor of the Federal Government, and have any further questions regarding these changes, you may want to contact an attorney.

From New Hampshire Department of Labor Frequently Asked Questions

What is the main difference between paying a salary vs. by the hour?

An hourly employee is paid for all the time worked including overtime, if applicable. A salaried employee receives a fixed amount of money constituting compensation regardless of the quantity or quality of the work performed or of the number of days and hours over which the work is performed.

What is the minimum wage?

Effective since August 8, 2011 no employee shall be paid at an hourly rate lower than that set forth in the federal minimum wage law, which is currently $7.25 per hour.

This is the final blog in our four part series reviewing the changes technology has brought to the workplace, and employment law.

Many employees answer emails outside of work hours every day, and in some cases, their employers are liable to pay for those hours worked. Most American adults own a smartphone, and even if their employers don’t require it, checking email outside of work can eat up hours of time. For companies that don’t have policies to address how offsite emailing affects wages and hours, this is a significant liability. 

Employers must pay their employees for time that they are required to be on duty at the work premises. The Fair Labor Standards Act also indicates that employers are liable to compensate hourly employees for time that they are “suffered or permitted to work”. The bottom line is that if your employer knows you’ve been emailing for work, event if its only a few minutes, then your time spent is likely compensable. When emailing outside of work pushes you into overtime hours the extra wages due can be significant. See DOL factsheet

Not all employees need to be paid for their time emailing outside of work. Exempt employees are paid are paid a set salary to complete a job regardless of the number of hours it takes. Therefore, answering work emails from home does not affect a salaried employee’s right to pay.

Technology is changing the way we interact with the world, including the way in which we work. This change has helped drive business productivity, but as we’ve noted throughout our series of blogs on the topic, it has also blurred the line between work and personal time. Employment law is still adjusting to the new dynamics created by mass mobile connectivity, and there will be more attention on this issue in the coming years.  

In situations where an employer can reasonably anticipate a lawsuit there is a legal obligation to preserve evidence that may be relevant to the case. Failing to do so can have serious consequences. These consequences can range from jurors being instructed to assume missing evidence was unfavorable to the employer, all the way to dismissal of the employer’s entire defense. 

Under what circumstances is an employer expected to preserve evidence? Companies should err on the side of caution, and the following situations are strong signs that a lawsuit might be coming:

• A workplace injury
• A disputed suspension, termination, or demotion
• Notice from an attorney outlining a claim
• A complaint from a state or federal agency

What evidence does the employer have an obligation to preserve? Employers might be required to maintain and or make available such as: 

• Pictures
• Video
• Equipment
• Physical Documents
• Electronically Stored Information (ESI)

Likewise, there is growing attention on an employee’s obligation to maintain evidence in his or her own possession that might be relevant to their lawsuit. This is particularly true when it comes to electronic evidence and or statements that might have been made via social networking.

Both employers and employees need to consult early on with their council regarding the important issue of evidence preservation.

This blog is the third post in a four part series looking at technology and the changing American workplace.

Sir Richard Branson has a policy that allows all Virgin employees to “take off whenever they want for as long as they want.” Several high profile companies and CEOs have championed flexible working conditions—that is to say, a program whereby employees have the opportunity to spend some portion of their time working from home.

The degree of flexibility can vary a great deal. Branson maintains that mobile technology has made it impossible to track how much time employees spend on the job anyway, and that the focus should be on what the employee achieves, not how long they spend working. Virgin’s program was inspired by Netflix, which instituted a similar policy in 2010 with great results.

Today, companies have the option to provide flexible workplace programs that allow employees to work from home with limited disruption to normal office operation. In many cases, periodic work from home can help drive employee productivity and morale. Nearly nine out of ten HR leaders believe these programs improve employee satisfaction, and while many companies have some sort of flexible work program, employers still fear they will be taken advantage of when employees are allowed to work from home.

The reality is that work and personal time are becoming blended, and it’s not a process that can be reversed. As employers demand responsiveness from employees at all times of day (in the office or out), they should also consider ways to empower their workers with more flexible work conditions.

This blog is the second in a four part series examining technology and the changes it has wrought on the American workplace and American employees.

More than two thirds of all HR professionals think that their employees enjoy balanced lives, but nearly half of all employees disagree. Where does this disconnect come from? The 24/7 connectivity facilitated by mobile technology, and the resulting ability to work remotely, have blurred the lines between work and personal time. As a result, employees feel like they’re working more. 

Modern technology and an evolving understanding of work productivity are changing both employees and employers view of work life balance. With near universal access to smart phone technology in the United States, employees are capable of staying connected and productive even while outside of the office. While this enables a greater degree of work flexibility, it can also drive employees to spend large portions of their personal time working. 

How to strike a work life balance in this new environment is a tough question, and unsurprisingly, employers and employees see the challenge differently. While mobile technology can facilitate flexible working schedules, it also means work is never farther than the cell phone in your pocket.

There have undoubtedly been changes in the work-life structure in recent years, and for now, employees and employers look at the current arrangement from distinct perspectives. Many employees spend 10 and 20 hours a week working during “personal time”, and the ability to work flexibly is lagging behind the current reality of work-life balance.

Employees must be paid for work “suffered or permitted” by the employer even if the employer does not specifically authorize the work. If the employer knows or has reason to believe that the employee is continuing to work, the time is considered hours worked. See Regulation 29 CFR 785.11.

Example 1:

A residential care facility pays its nurses an hourly rate. Sometimes the residential care facility is short staffed and the nurses stay beyond their scheduled shift to work on patients’ charts. This results in the nurses working overtime. The director of nursing knows additional time is being worked, but believes no overtime is due because the nurses did not obtain prior authorization to work the additional hours as required by company policy. Is this correct? No. The nurses must be paid time-and-one-half for all FLSA overtime hours worked.

Example #2:

An hourly paid office clerk is working on a skilled nursing home’s quarterly budget reports. Rather than stay late in the office, she takes work home and finishes the work in the evening. She does not record the hours she works at home. The office manager knows the clerk is working at home, but since she does not ask for pay, assumes she is doing it “on her own.” Should the clerk’s time working at home be counted? Yes. The clerk was “suffered and permitted” to work, so her time must be considered hours worked even thought she worked at home and the time was unscheduled. See Regulations 29 CFR 785.12.

This is the first in a series of three blog posts that will explore how mobile technology is changing the relationship between employers, employees, and the workplace. The basic premise of this series is that mobile connectivity is transforming the way people work—this includes work life balance, location of work performed, vacation time, and even the definition of an employee.

While we’ve touched on this topic before, this series of posts will review some of the most intriguing and salient employment related questions that have emerged in the wake of the mobile technology revolution. Today, the office is only ever as far away as the cell phone in your pocket. Modern communication tools have made it so that an employee can work virtually anytime and from any place. Employment law and corporate standards have largely lagged behind this rapid tech driven change.

Today, companies are struggling to find new standards for employees who are increasingly connected via mobile technology. How can employers determine hourly compensation for an employee who mostly works from home? How can employees find balance between professional and personal time when they’re expected to constantly monitor email? What is an appropriate amount of vacation time for an employer to provide when employees can work from anywhere?

Technology has radically shifted the way Americans work, interact with each other, and live their daily lives. The pace of change has been impressive, and in many ways, we’re still working to understand this new world we’ve created. Technology has the potential to improve efficiency and provide greater freedom in terms of how and where work is completed, but it must be embraced with knowledge and caution.

The future American worker will rely on technology in new and unprecedented ways, and understanding some of the challenges that come along with this change is critical. This blog series will look at some of these questions, but the conversation won’t end here.

Some employers track employee hours worked in 15-minute increments, and the FLSA allows an employer to round employee time to the nearest quarter hour. However, an employer may violate the FLSA minimum wage and overtime pay requirements if the employer always rounds down. Employee time from 1 to 7 minutes may be rounded down, and thus not counted as hours worked, but employee time from 8 to 14 minutes must be rounded up and counted as a quarter hour of work time. See Regulations 29 CFR 785.48(b).

Example #1:

An intermediate care facility docks employees by a full quarter hour (15 minutes) when they start work more than seven minutes after the start of their scheduled shift. Does this practice comply with the FLSA requirements? Yes, as long as the employees’ time is rounded up a full quarter hour when the employee starts working from 8 to 14 minutes before their shift or if the employee works from 8 to 14 minutes beyond the scheduled end of their shift.

Example #2:

An employee’s schedule is 7 a.m. to 3:30 p.m. with a thirty minute unpaid lunch break. The employee receives overtime compensation after 40 hours in a workweek. The employee clocks in 10 minutes early every day and clocks out 7 minutes late each day. The employer follows the standard rounding rules. Is the employee entitled to overtime compensation? Yes. If the employer rounds back a quarter hour each morning to 6:45 a.m. and rounds back each evening to 3:30 p.m., the employee will show a total of 41.25 hours worked during that workweek. The employee will be entitled to additional overtime compensation for the 1.25 hours over 40. 

QUESTION:

I live in NH and work in Massachusetts. I understand there is a new law that will allow employees to earn up to 40 hours of sick leave each year. Is that true and how does that work?

ANSWER:

It’s true; the law goes into effect July 1^st of this year, 2015. As of that date, all employees in Massachusetts will be able to earn sick leave, however not all employees will earn paid sick leave. Only where the employer has 11 or more employees, will employees be entitled to paid leave time. Employers with 10 or fewer employees will have to provide earned sick leave, but this time will be unpaid.

QUESTION:

Every year the Occupational Safety and Health Administration (OSHA) publishes a list of the most common standard violations at construction sites. The list for 2014 is shown here:

1. Fall protection, construction
2. Hazard communication standard, general industry
3. Scaffolding, general requirements, construction
4. Respiratory protection, general industry
5. Powered industrial trucks, general industry
6. Control of hazardous energy (lockout/tagout), general industry (
7. Ladders, construction
8. Electrical, wiring methods, components and equipment, general industry
9. Machinery and Machine Guarding, general requirements
10. Electrical systems design, general requirements, general industry

The construction industry accounted for over 20 percent of the 4,101 worker fatalities in US private industry for 2013. Compliance with OSHA standards can be the difference between life and death—this means effective training, maintenance, and supervision from the employer. Failing to meet any of the relevant OSHA standards at construction sites puts employees at risk, and poses a liability concern for the employer.

On June 30 the Department of Labor (DOL) released a proposed rule that would result in nearly 5 million additional American workers receiving overtime compensation. As it stands, an employee making more than $455 a week is exempt from Fair Labor Standards Act (FLSA) requirements for overtime pay. The new rule raises the exemption floor to $921 a week, meaning many more workers will qualify for overtime pay if they exceed 40 hours of work per week.

The new rule has been expected since President Obama directed the DOL to review white-collar exemptions to the FLSA in March 2014. Under the previous exemption requirements, a white-collar employee earning more that $23,660 a year could not qualify for overtime compensation. The new rule raises the annual earning floor for exempt employees to an estimated $47,892 a year. This income level represents the 40^th percentile for full-time salaried workers in the U.S. 

The DOL has posted a fact sheet reviewing key provisions of the new rule. Specifically, the fact sheet lays out three changes proposed under the new rule: 

1. Set the standard salary level at the 40th percentile of weekly earnings for full-time salaried workers ($921 per week, or $47,892 annually);
2. Increase the total annual compensation requirement needed to exempt highly compensated employees (HCEs) to the annualized value of the 90th percentile of weekly earnings of full-time salaried workers ($122,148 annually); and
3. Establish a mechanism for automatically updating the salary and compensation levels going forward to ensure that they will continue to provide a useful and effective test for exemption.

While the rule is not yet final—it will remain open to comments for 60 days once published on the Federal Register, at which point comments will be reviewed and the rule finalized—it will likely remain close to its current form. This could mean big changes in compensation for millions of American workers, and will necessitate change in compensation policies for companies around the country.

To understand if you qualify for overtime under the new regulations, or whether your business needs to change how it compensates employees, you may want seek the guidance of your attorney.

Here’s a selection of frequently asked questions from the New Hampshire Employment Security website.

What is unemployment insurance?

Answer: Unemployment insurance is temporary income for eligible workers who become unemployed through no fault of their own and who are looking for new jobs. The money for unemployment insurance benefits comes from revenue paid by employers. No deductions are ever made from a worker's paycheck for it.

How do I File for Unemployment Benefits?

Filing for Unemployment Compensation can be done:

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

1. 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.

2. 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.

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.