Rice Law Office Blog

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. 

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.

Question: How do I apply for a new or replacement Social Security number card? 

Answer: You can get an original Social Security card or a replacement card if yours is lost or stolen by following the steps below. You cannot apply for a card online. There is no charge for a Social Security Card. You will need to: 

• Show the required documents, which will vary depending on citizenship and the type of card requested.
• Fill out and print an application for a Social Security Card and
• Take or mail your application and documents to your local Social Security office. 

Question: How do I change or correct my name on my Social Security number card?

Answer: If you legally change your name because of marriage, divorce, court order or any other reason, you must tell Social Security so you can get a corrected card. You cannot apply for a card online. There is no charge for a Social Security card. To get a corrected Social Security card, you will need to:

• Show the required documents. You will need proof of your identity. Sometimes you also may need to prove your current U.S. citizenship or lawful noncitizen status.
• Under the heading, “Type of Card,” select “Corrected”for a list of the documents you need;
• Fill out and print an application for a Social Security Card and
• Take or mail your application and documents to your local Social Security office

Question: How do I apply for Social Security retirement benefits?

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:

If you’ve been injured on the job, and especially in cases where there is some level of permanent impairment that limits your ability to work, you need to rely on your workers’ compensation to make ends meet. This compensation is so personal in nature that generally, creditors cannot seek a claim against it as they would a typical asset.

Only claims for medical bills and legal fees associated with the compensated injury may be made against workers’ compensation settlements in New Hampshire. There is another significant exception, however.

Since workers’ compensation is meant to be a safeguard for injured employees AND their dependents, spouses and dependent children are viewed as different from normal creditors in the eyes of the law. Claims for child support, therefore, may be enforced against workers’ compensation awards.

Even following a divorce, your former spouse may have a right to claim some portion of your workers’ compensation. It’s critical that you let your workers’ compensation attorney know from the outset if you might have any debts or obligations related to a divorce and or child support. The more your attorney knows, the more capable she will be in helping you to obtain and keep your benefits.

Image courtesy of Compliance and Safety under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

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.

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.

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)

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.

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.

With the recent outbreak of measles on the rise across the country questions about immunization requirements have become a hot topic of debate.

At present no cases of measles have been reported in New Hampshire in this recent outbreak, but how likely is that to change? According to a recent story by WMUR's Josh McElveen, Health officials attribute New Hampshire’s clean health record largely to an immunization rate that is among the highest in the country. (published 2/4/15, www.WMUR.com).  The State Department of Health and Human Services, indicates more than 97% of school age children in New Hampshire have received the state required immunizations for diseases ranging from the measles to polio.

So what is the law regarding immunization of children in New Hampshire?

New Hampshire requires mandatory vaccination for children attending School or daycare in New Hampshire, with two permitted exemptions: religious and medical. The New Hampshire Department of Health and Human Services website www.dhhs.nh.gov details New Hampshire's mandated vaccinations and provides guidance as to the standards for medical and religious exemption.

Medical exemptions are available to parents or legal guardians of a child for whom immunization against a particular disease may be detrimental to the child's health. In order to obtain a medical exemption certificate the parent or legal guardian must acquire written documentation from a licensed physician or authorized healthcare provider that certifies that immunization against a particular disease may be detrimental to the child's health. The exemption shall exist only for the length of time, in the opinion of the physician; such immunization will be detrimental to the child. Moreover, an exemption from immunization for one disease shall not affect other required immunizations. In other words, an inability to undergo one particular type of immunization does not automatically entitle a child to an exemption from all immunizations across the board.

Not surprising to those of us who proudly call New Hampshire home, our great state was ranked number one in the nation according to Politico Magazine.

Politico averaged state rankings from 14 different categories, drawing from "reputable" sources like the census bureau, the Centers for Disease Control and Prevention and the FBI, and considering factors such as high school graduation rates, per capita income, life expectancy and crime rate. The result was a master list ranking of all 50 states, and NH sits at the top of the list with the #1 ranking.  The article can be found on Politico's website.

Our neighbors also fared well with Vermont at #3, Massachusetts at #5 and Maine coming in at #4 in the nation.