Rice Law Office Blog

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)

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.

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.

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.

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 protection
• Evidence is in danger of being destroyed
• Testimony is in danger of being fabricated
• There 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.