Rice Law Office Blog

15:46:29

With the phased lifting of the stay at home order and the ensuing return to business and work, questions about employer and employee rights have begun to surface in increasing numbers. The problem is, all too often the speed, breadth, and impact of the COVID-19 outbreak has outpaced the ability to predict or even respond to the myriad legal questions raised as a result of this pandemic.

The Governor has issued emergency orders to establish protections for some workers and to offer guidance for employers as they begin to reopen. The Federal government has also responded with the CARES ACT, the First Families Corona Virus Recovery Act (FFCRA) and other pieces of legislation aimed at easing the economic impact of this health crisis.

In addition to new laws, orders and regulations, there are existing laws that can provide answers and protection as we all work together to forge a new path forward. Employees and employers can and should still look to the Family Medical Leave Act (FMLA) and sick leave policies as well as collective bargaining agreements to find guidance about leave time related to COVID-19. State and federal laws regarding disability rights and accommodations such as the ADA and New Hampshire RSA 354-A will offer clarity as to rights and responsibilities for employees who have disabilities due to COVID-19 or health complications due to the increased risk of contracting COVID-19. 

For employees who contract COVID-19 at work, there is protection in the form of payments for medical bills and lost wages under our state workers’ compensation laws and between the state and federal government. Many employees will have the right to increased benefits for unemployment.

There are many options, rights and benefits for employees and employers impacted by COVID-19, but the challenge has been in getting that information out to the public and then combing through the options to find the best combination of protections and benefits for each circumstance.

For some employees, workers’ compensation will be the best route to recovery for lost time from work due to illness, but for others, they may find an easier path and better coverage for lost wages by using accrued sick time. Employees with complications that will keep them out of work, but who can still perform their duties remotely, may be able to stay employed by requesting accommodations. These last few months have shown that many businesses can still function with remote workers and thus accommodations that would have been considered a hardship in January, may be perfectly reasonable now. If an employee is ill or vulnerable to becoming ill due to an underlying disability and remote work isn’t an option, it may be possible for the employee to access short- or long-term disability. Some employees who are let go or have to leave work due to COVID-19 will be eligible for unemployment benefits.

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.

From New Hampshire Department of Labor Frequently Asked Questions

Can I see my own doctor? 

This depends on whether or not your carrier is using a managed care program. If they are, you must choose a doctor within the network. If you are not subject to managed care, the choice is yours.

Can my employer fire me?

It depends on your case and circumstances. New Hampshire has various laws which may provide job protection for employees based upon injury, illness or disability. If your employer has 5 or more employees they may be required to reinstate you if you are released by your treating physician within 18 months of the date of injury. See RSA 281-A:25-a or New Hampshire Administrative Rule Chapter Lab 504.05 Reinstatement of Employee Sustaining Compensable Injuries.

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.

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. 

The Supreme Court’s decision to legalize gay marriage nation wide will have sweeping impacts, both immediately and in years to come. One of the immediate effects of the 5-4 ruling in favor of universal marriage rights will come in the realm of employment law. The legalization of gay marriage has necessitated policy changes for employers around the country. 

The new ruling will have immediate effects on benefits for spouses. Companies that extend spousal benefits, either because of state laws or company policy, will be immediately required to provide equal coverage for same-sex marriage spouses. Employers will need to review health insurance, tax status, and spousal leave options for same-sex married couples in the context of the new ruling. 

One specific effect is that companies must extend Family Medical Leave Act (FMLA) benefits to same-sex married couples. FMLA mandates that employers provide up to 12 weeks of leave annually for an employee who is either dealing with a serious medical condition themselves, or caring for an immediate family member (including spouse) with such a condition. Without exception, same-sex couples must now be provided equal benefits.

The ruling clears up what could have been a complicated legal situation for employees and employers alike. Some states had previously legalized same-sex marriage, while others had not—this meant that it was possible for a same-sex couple to be legally married in one state, but receive no spousal benefits if they worked in a state that did not recognize gay marriage.

With the new Supreme Court ruling, there is no lack of clarity—employers must provide same-sex married couples the same rights and access to benefits that heterosexual married couples receive.

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:

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.

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.