Employees
New Hampshire as a Right-to-Work State?: NH House Considers a Dozen Bills to Reduce Union Power
Last year, New Hampshire’s House barely sustained the governor’s veto of right-to-work legislation, which barred unions from requiring nonunion members to pay a share of collective bargaining costs. Though the right-to-work bill did not prevail, a dozen more like it might this year due to the Republican super majorities at the State’s House. There are currently twelve significant labor bills in the house.
Right-to-work Legislation
House Bill (HB) 1663, 1677 would make it illegal for unions to collect an agency fee from nonunion members. These bills, in particular, are targeted at public employees as opposed to all employees.
Collective Bargaining
HB 1645 eliminates the right of public employees to participate in collective bargaining.
HB 1570 relieves unions of the duty to represent non-member employees, potentially allowing individual employees to separately negotiate their terms of employment.
HB 1174 requires union members of a county delegation to be present for negotiations with county employees.
HB 1237 bars any former union member from serving on an advisory committee for the state negotiator, who negotiates with state employees.
Union Dues and Health Insurance
HB 1163 would make it illegal for an employer to voluntarily withdraw union dues from an employee’s wages. Instead the employee would be required to write a separate check for union dues.
HB 1206 prohibits the state from making automatic deductions for union dues from state employees’ paychecks.
HB 1246 provides for a special arbitration process and legislative involvement if a public employee intends to unilaterally change health insurance plans against the union’s wishes.
Miscellaneous Bills
HB 1427 allows a public employer to out source union work without it being considered an unfair labor practice.
HB 1685 changes the state law definition of "supervisor" to exclude more public employees from being represented by an union during collective bargaining.
HB 1513 would reorganize the New Hampshire Public Employee Relations Board by removing the Governor’s power of board selection process and reallocating the decision to solely the House, Senate, and Executive Council.
Retaliation Protection
Title VII of the Civil Rights Act prohibits any discrimination based upon "race, religion, sex, or national origin," and also protects an employee from retaliation because he/she "oppose any practice" made unlawful under the same. The case, Burlington Northern & Sante Fe Railway Co. v. White, determined how harmful the adverse actions must be in order to fall under the anti-retaliation provision. The Supreme Court ruled that an employee need only show "that a reasonable employee would have found the challenged action materially adverse, which in this context means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination." The employer can also be found liable for taking action that would cause the employee harm outside the workplace. This case sets new standards which are exceptionally favorable for the employee.
Question: Can I be fired for filing a discrimination complaint at work?
Answer: No, employees have the right to "oppose any practice" which violates Title VII of the Civil Rights Act free from retaliation. In fact, according to the U.S. Court, an action which might have dissuaded a reasonable worker from making or supporting a charge of discrimination constitutes an adverse action under the anti-retaliation provision of Title VII of the Civil Rights Act of 1964.
OSHA and Employees Working from Home
Question: I work out of my home office three days a week and out of the corporate office on the other two. Am I covered for injury while I’m working at home?
Answer: Injury and illness that occur while an employee works at home may be considered work-related and thus covered under NH Workers’ Compensation and/or OSHA. An injury or illness may fall under workers’ compensation if it occurred in the course of employment. Home office injuries are covered under OSHA if: (1) the injury or illness occurs while the employee is performing work for pay or compensation in the home and (2) the injury or illness is directly related to the performance of work rather than to the general home environment or setting. For example, if an employee dropping a box of work documents on his/her foot (work-related), as opposed to tripping over the family dog while trying to answer a phone call for work (not work-related).
Question: What is OSHA?
Answer: Under OSHA employers are required to provide safe and healthful working conditions for employees, and if a particular situation is not specifically covered employers still have a general duty under the act to provide employees with a healthy and safe place of work.
Question: Am I covered by OSHA?
Answer: Very nearly all employers are covered under the Occupational Safety and Health Act, which includes any, "person engaged in business affecting commerce, including an individual, partnership, association, corporation, business trust, legal representative, and any organized group of persons with employees."
Liquidated Damages: Be Aware
Claims for liquidated damages in the wage and hour setting offer Plaintiffs the opportunity to receive up to twice the amount of the wages due in the event the employer "willfully and without good cause" delays payment of wage beyond the time frame indicated by the law. While this provision of the law is long standing, liquidated damages claims are appearing before the New Hampshire Department of Labor (NHDOL) with greater frequency and early representation is a must for success. This trend of increasing liquidated damages claims is one that plaintiffs need to be aware of if they are to take full advantage of their rights and protections afforded under the law.
Under NH law, employees who leave employment as a result of termination are entitled to payment of all wages due within 72 hours. Employees who leave employment due to resignation must be paid by the next regular payday except where the employee gives a full pay period of notice in which case the wages are due within 72 hours of the last day of work.
Employers who "willfully and without good cause" fail to make payment within these time frames are liable to pay liquidated damages to the employee in the amount of 10% per day up to two times the amount due. Moreover, the employer may be obligated to pay the employee’s attorney fees associated with the wage claim.
In 1985 the New Hampshire Supreme Court delivered a ruling in Ives v. Manchester Subaru, Inc. which addressed the circumstances under which an employee might be eligible for liquidated damages as a result of late payment of wages. The Court defined the phrase "willfully and without good cause." Indicating that an employer who failed to deliver payment within the given time frame "voluntarily, with knowledge that the wages are owed and despite financial ability to pay them" would be liable for a claim of liquidated damages.
Two recent cases have demonstrated the importance of the willful and knowing standard: in both circumstances the terminated employees received payment after the 72 hour deadline, however, in one case the employee sent a letter to the employer informing them of the obligation to pay within 72 hours whereas the other did not. The plaintiff who sent the letter was awarded liquidated damages, the one who did not lost the suit. Another recent case addressed liquidated damages and the doctrine of res judicata, which prevents plaintiffs from filing a second suit involving or arising from the same claim. Following a successful unpaid wages claim, the plaintiff filed a subsequent liquidated damages claim. The claim was denied by the NHDOL, which cited res judicata in indicating that the issue of liquidated damages should have been raised in the initial suit.
The lesson learned is that employees must know their rights from the outset in order to get the full protection of the law. This means it is ever more important to seek legal advice as early as possible. At Rice Law Office, we work to keep you abreast of all the latest developments the field of employment law.
Military Leave
Under a 2006 ruling by the First Circuit Court in regards to unlawful termination due to Military Leave (Velazquez-Garcia v. Horizon Lines), the employee need only show that his/her military service was a factor in the termination to prove liability. This holds true unless the employer can show that the action would have been taken regardless of military service. This makes it necessary for the employer to prove they would have taken the same action regardless of military status, not just that it had a legitimate reason for terminating its employee. The question changes from whether or not the employer is "entitled" to dismiss the employee to whether it would have taken the same action had the employee not been in the military.
This standard demonstrates the need for employers to proceed with caution before discharging an employee protected under USERRA.
COBRA PREMIUM REDUCTION UNDER ARRA
The Department of Labor has issued a News Statement that the COBRA eligibility period under the American Recovery and Reinvestment Act (ARRA) has been extended through February 28, 2010. For more information, visit the DOL's dedicated COBRA web site www.dol.gov/cobra, or feel free to give the office a call.
Harassment of Teen Workers
The Equal Employment Opportunity Commission (EEOC) announced in late 2004 its intention to crack down on discrimination and harassment of youths in the workplace. Since then, they have made good on their promise and brought the issue into the limelight.
Teen workers are often targeted for harassment because they don’t know enough about their rights, and don’t know the appropriate way to respond to and report the harassment. Shortly following the EEOC’s announcement of its crackdown on harassment of teen workers, it entered into the settlements of several very large and well publicized harassment and discrimination cases in which teen workers were the plaintiffs. The hope is, with the increased attention upon this issue more employers will put preventive and educational measures in place to protect teen workers from harassment and discrimination.
