You have probably heard that effective July 1, 2015, Massachusetts enacted a new sick time law. There has been much discussion about its impact on companies located in Massachusetts. However, one aspect that has been overlooked is its impact on out-of-state businesses which have employees in Massachusetts. Any company with employees performing work in Massachusetts must consider this issue or face the consequences of non-compliance with the law.

The new law applies to businesses with employees whose “primary place of work” is Massachusetts. The final regulations of the Earned Sick Time Law, M.G.L. c. 149, § 148C, specify that an employee does not have to spend 50% of his/her work time in Massachusetts for it to be considered his/her primary place of work. Click here to read the final rule.

The regulations give the following example: A painter with a single employer works 40% of her hours in Massachusetts, 30% in New Hampshire and 30% in other states. Massachusetts is her primary place of work. In this example, all the hours the painter worked would be applied toward accrual of earned sick time, regardless of the location of the work or of the employer.

The first step in determining whether a company not located in Massachusetts is covered by the law is to review its total number of employees.  Unpaid sick leave must be provided to employers with 11 or fewer employees, and paid sick leave must be provided to employers with more than 11 employees.  The regulations state that in determining the number of employees for purposes of the sick leave law, “All of an employer’s employees, including full-time, part-time, seasonal, and temporary employees, whether working in or outside Massachusetts and regardless of their eligibility to accrue and use earned sick time, shall be counted for the purpose of determining employer size.”

Therefore, a New Hampshire (or any out-of-state) business that has employees who work primarily in Massachusetts must count all of its employees to determine whether it must offer paid or unpaid sick time to its Massachusetts employees.

For example, ACME manufacturing has its head office in New Hampshire where 20 people work, 5 employees in Connecticut and 2 salespeople in Massachusetts. The 2 salespeople in Massachusetts report to the New Hampshire head office, but primarily work in Massachusetts. What is ACME’s obligation under the Massachusetts sick leave law? Answer: ACME must count all employees to determine whether it must offer the 2 salespeople unpaid or paid leave. In this case, ACME has 27 employees and must offer paid sick leave to its 2 salespeople in Massachusetts and otherwise comply with that law as to those 2 employees.

My colleague Adam Hamel has written several blog posts (link #1, link #2) about compliance with the new law.  However, businesses with questions about the new law are strongly encouraged to consult with legal counsel to determine what, if any changes, must be made to their existing sick leave or paid time off (PTO) policies and whether the safe harbor applies.

RSA 265-79-c takes effect on July 1, 2015.  The new law prohibits New Hampshire drivers from using “any hand-held mobile electronic device capable of providing voice or data communication” while driving or while temporarily halted in traffic, at a stop sign or red light, or any other momentary delay.  “Use” is defined broadly, and includes calls, reading or composing text messages or emails, accessing the internet on a device, and inputting information into a GPS. Drivers will still be permitted to use their devices in emergencies or to call 911 and may use a Bluetooth or other hands-free function to send or receive information while driving, provided that the driver does not have to divert their attention from the road ahead.  The exception for hands-free devices only applies to adult drivers, as teens under the age of 18 are not permitted to use electronic devices while driving except to report emergencies.  The statute carries fines for violations of the law, which increase in amount for each offense.

Cell Phone - MIke Kline via Flickr - CC by 2.0
Cell Phone – MIke Kline via Flickr – CC by 2.0

Although many employers have already implemented policies barring use of devices on the road, it is important to review and update cell phone or electronic device policies to confirm compliance with this change in the law.  An employer’s restriction on employees’ use of electronic devices while driving should be consistent with safety and require compliance with the law in the state of use.  Employers that do not currently have cell phone or electronic device use policies should implement such policies now.  Given the trend across the country to adopt similar legislation, those companies which have drivers engaged in interstate travel should confirm that the employees are also aware of the laws which govern driving in other states.

In addition to the fines which may be imposed upon employees who violate the law, businesses may be subject to liability for accidents or injuries which occur as a result of unsafe driving practices.

While the weather may not feel like it yet, summer will be here before long and businesses may be looking to hire youths under 18 years old. Youth labor laws were adopted by the federal government (FLSA) and states to protect children and generally prohibit minors from working excessive hours, operating unsafe machinery, and working in dangerous conditions. Please note that if your business is covered by Federal wage and hour law, the FLSA applies along with more restrictive rules limiting the number of hours a youth is allowed to work: http://www.dol.gov/dol/topic/youthlabor/enforcement.htm.

Photo: uros velickovic via Flickr (CC by 2.0)
Photo: uros velickovic via Flickr (CC by 2.0)

I’ve listed the most important NH youth employment laws as a reminder of their specificity and also of the fact that violations of youth employment laws come with statutory monetary penalties that cannot be waived by the NH DOL: if you are in violation, then you must pay.

Youth Employment Certificate.  

If you are employing a youth between the ages of 12-15, then this certificate must be on file at the business within 3 days of the youth’s first day of employment. Youths under 12 years old may not work except for his or her parents, grandparents, or guardian, or at “casual” work (employment of no more than 3 calendar days for any one employer) or in door-to-door newspaper delivery.

To get a Youth Employment Certificate, the youth should ask the employer to complete an Employer’s Request for Child Labor and then give it back to the youth to bring to his or her local school or superintendent’s office. Employer Request for Child Labor.  The School or superintendent’s office will issue the Youth Employment Certificate after it has:

(1) confirmed the age of the youth (birth certificate, passport, baptismal certificate, immigration record or a religious or official record bearing the youth’s age),

(2) reviewed employer’s request to ensure that the minor’s employment is permitted by law, and

(3) reviewed the student’s school record to ensure the student’s academic performance level has been met. The school then provides the Youth Employment Certificate to the youth who brings the completed form to his or her employer.  The school also provides a copy of the documentation to the NH Department of Labor.

A Youth Certificate is not required if the youth works for his or her parents, grandparents or guardian, is performing “casual” work, or is working as farm labor. While the definition of “casual” work is vague, it may be interpreted to include performing yard work for neighbors, for example.

If the youth is between the ages of 16-17, then the business must have on file at the business, on the first day of the youth’s employment, written permission by the parent or guardian stating that the youth is allowed to work. Parental Permission Form.

Hours of Work Restrictions.

In calculating the number of hours of employment, the business cannot use its own work week, but must use the statutory work week – Sunday through Saturday.

For youths aged between 12-15, they cannot be employed: during school hours, before 7am or after 9pm, more than 3 hours per day on school days, more than 8 hours per day on non-school days, more than 23 hours per week during school weeks, or more than 48 hours per week during non-school weeks.

For youths aged between 16-17 who are enrolled in school (including home schooled), they cannot be employed: more than 6 consecutive days nor more than 30 hours per week during the school calendar week (Sunday through Saturday), more than 6 consecutive days nor more than 48 hours per week during school vacation weeks or summer vacation (June 1st through Labor Day), more than 10 hours per day in manufacturing, more than 10 ¼ hours per day in manual or mechanical labor, more than 8 hours per night (if working at night).

For youths aged between 16-17 who are not enrolled in school, they cannot be employed: more than 10 hours per day nor more than 48 hours per week at manual or mechanical labor in a manufacturing establishment, more than 10 ¼ hours per day nor more than 54 hours per week at manual or mechanical labor in any other employment that is not exempt by statute, and night work is restricted to no more than 8 hours per shift and 48 hours per week.

Prohibited Occupations.

Youths aged between 14-15 are prohibited from working in: any manufacturing occupation, any mining occupation, processing occupation (such as filleting of fish, dressing poultry, cracking nuts or laundering by commercial laundry and dry cleaning), public messenger service, occupations in connection with warehousing and storage, communications and public utilities and construction. Also, youths in this age group cannot work, for example, around boilers or engine rooms, cooking (except at soda fountains, lunch counters, snack bars, or cafeteria serving counters) and baking, in freezers and meat coolers, or loading and unloading goods.

No youth can be employed in a “hazardous occupation” as defined by the FLSA: http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786&rgn=div5&view=text&node=29:3.1.1.1.31&idno=29. Those hazardous occupations include, but are not limited to: driving or acting as outside helper on a motor vehicle, logging and sawmilling, operation of power-driven woodworking machines, work in slaughtering, meat packing and rendering establishments, work in roofing operation, work in places were alcoholic beverages are manufactured, packaged or sold (except in drug stores or retail food stores), and any work over 30 feet above floor, ground, or water level.

Penalties.

The penalty for violation of federal child labor law is up to a $10,000 civil penalty for each violation. The penalty for violation of N.H. youth employment laws can include a misdemeanor offense and may include an assessment of a civil penalty not to exceed $2,500 for each violation. Before embarking on hiring a youth this summer, be sure that you are clear as to the occupational and hourly restrictions to ensure that your business is in compliance with youth employment laws.

NH Department of Labor Commissioner, James Craig, took the bull by the horns this past year and, with a determination not often seen by Commissioners, brought interested parties together to craft a definition of ‘employee’ that would apply to all matters before the NH Department of Labor (NH DOL) and NH Employment Security (NH ES). Those interested parties included labor and employment attorneys, the BIA, labor unions, various trade associations, and state agency personnel. The meetings were structured in such a way as to welcome and respect all comments and criticisms. The result was a new definition of ‘employee’ used to determine whether an individual is eligible for unemployment and/or worker’s compensation benefits, can make a claim under the Whistleblower Protection law, and is protected by NH’s wage and hour law, including overtime. This new definition of ‘employee’ has been memorialized in House Bill 450 which was passed by the House of Representatives and is now before the Senate.

Why go to all this effort? The issue is simple, but has been challenging to fix. The current statutory laws (RSA 275, RSA 279 and RSA 281-A:2) defining ‘employee’ have evolved to a point where the same factual circumstances involving an independent contractor can beget different, conflicting results. In other words, a business could be complying with NH DOL’s 7-part ‘employee’ test regarding an individual, and, at the same time, be noncompliant with NH ES’s 3-part ‘employee’ test. If you were to ask NH employment lawyers whether their clients have been caught out by these inconsistent tests, you will hear a resounding affirmative answer. I have represented businesses that have had to pay unpaid unemployment security taxes to NH ES while, at the same time, NH DOL concluded that the same individual was compliant with its definition of ‘employee’ and, therefore an independent contractor. These inconsistent ‘employee’ tests come at high financial consequences for businesses: civil penalties, unpaid taxes, daily worker’s compensation non-compliance fines – to name a few. Furthermore, the possibility of inconsistent results and inherent unpredictability creates a business environment that must incorporate a level of risk even when the business is technically complying with at least one of statutory ‘employee’ definitions.

Below is the new ‘employee’ definition – remember that the presumption is that the individual is an employee and the burden is on the employer to rebut the presumption:

  1. The individual must satisfy all of the following five requirements: controls the detailed means and manner of the work except as to final results; has the opportunity for profit and loss as a result of the services being performed; performs services customarily engaged in as an independently established trade, occupation, profession or business (the individual may work for one entity for a 6 month period and still be in compliance); hires and pays his/her own assistant and supervises them to the extent they are employees; and is paid based on the agreed scope of work performed; and
  2. The individual must satisfy three of the following six criteria: have substantial investments in facilities, tools, materials, instruments and knowledge used to complete the work; is responsible for the satisfactory completion of the work and may be held contractually responsible for failure to complete the work; the parties have a written contract; the work is outside the usual course of business of the hiring unit; the work is performed outside all places of business of the hiring unit; or the Internal Revenue Service has classified the individual as an independent contractor.

HB 450 represents an effort to level the playing field in a political environment both nationally and at the state level that supports a heightened enforcement of the misclassification of employees as independent contractors. To those ends, NH DOL and NH ES cooperate in regard to reporting alleged misclassifications to each other. While NH DOL’s application of the new ‘employee’ definition will not collaterally estop a separate finding by NH ES, it would likely be taken into account – especially if the determination is being made contemporaneously, as it typically happens.

No doubt it will take practitioners, businesses, individuals, and agency personnel time to familiarize themselves with the application of the new ‘employee’ definition. However, the tenants of the new statute are familiar to everyone – they encompass existing statutory language and common law interpretation of that language. This law would enable businesses and individuals to predict the outcome of a challenge to misclassification in two important state agencies with a greater level of certainty. At the same time, state agencies will be able to continue to focus their attention on misclassification of employees knowing that the elimination of the inconsistent ‘employee’ definitions will be less likely to ensnare businesses caught in this scenario. Having a unified ‘employee’ test will increase the likelihood that inconsistent results among agencies will be avoided. For those reasons, this effort by NH’s agencies to level the playing field for businesses should be supported.

 

 

 

 

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As discussed by Nicholas Casolaro in his blog post from August, the NH law which goes into effect January 1st relative to equal pay prevents employers from discriminating between employees on the basis of sex by paying employees of one sex at a rate less than the rate paid to employees of the other sex for what the statute refers to as “equal work.”  Such work requires “equal skill, effort, and responsibility and is performed under similar working conditions” by both the employees of one sex and employees of the other sex.

The statute allows employers to pay employees of one sex at a lower rate than employees of a different sex if the decision is made pursuant to a seniority system, a merit or performance-based system, a system which measures earnings by quantity or quality of protection, based on the employee’s expertise, differentials in the employees’’ shifts, or factors such as education, training, or experience.  These exceptions give employers the necessary flexibility to make legitimate and reasonable pay decisions without having to look over their shoulders for discrimination claims.

However, employers should review their pay scales and salary schedules to ensure that pay differentials and considerations for raises and bonuses are based on merit-based, seniority, or other acceptable systems as recognized in the statute.

Remember to post the new mandatory poster which is now available for download on the NH Department of Labor website: http://www.nh.gov/labor/.

The NH Department of Labor and the US Department of Labor entered into a memorandum of understanding (MOU) for the purpose of preventing misclassification of workers as independent contractors or some other nonemployee status.  The MOU calls for the state and federal agencies to share information and to coordinate their efforts of enforcement.  It became effective on November 12, 2014 and is for a three year term.

This memorandum between the NH DOL and the US DOL is consistent with the Misclassification Initiative launched by the federal government in 2011.  The US DOL announced back in September 2011 that it would be entering into MOUs with states and the IRS (MOU) to curb misclassification of workers.  As of today, NH is the seventeenth state to enter into such an MOU.  Other states include Hawaii, California, Washington, Montana, Utah, Colorado, Minnesota, Iowa, Missouri, Illinois, Louisiana, Georgia, Maryland, New York, Connecticut, and Massachusetts.  When an employee is misclassified, an employer may not be paying the proper overtime compensation, FICA and unemployment insurance taxes, or worker’s compensation premiums.  The goal with these agency agreements is to improve employer compliance with labor laws, address tax gaps, and insure required payments to employee programs.

The MOU signed by NH specifically considers enforcement measures and the terms provide that to the extent allowable under law,

  • The agencies may conduct joint investigations periodically in the state of NH, if opportunity provides.
  • The agencies may coordinate their respective enforcement activities and assist each other with enforcement.
  • The agencies may make referrals of potential violations of each other’s statutes.

Click here for a copy of the NH MOU and Press Release.  Other state MOUs can be found at the US DOL website.

Employers should review how they are classifying their workers.  The NH DOL considers every worker an employee unless it can be shown that the person qualifies as an independent contractor by meeting all the criteria specified under NH 275:4.  Be reminded that the New Hampshire Employment Security (NHES) employs the “ABC” test – RSA 282:A9, III — and the IRS another test.  Consequences for misclassification include civil penalties, payment of back taxes (plus interest and penalties), liability for back pay, unpaid overtime, or illegal deductions, contributions to fringe benefit plan for period of misclassification, and other potential liability.  With misclassification on the government’s radar, employers should be alert.

Last session the New Hampshire Legislature enacted a new law designed to protect patients of health care facilities from the dangers associated with drug-use and drug-diverting by health care workers.  RSA 151:41, which was effective August 25, 2014, requires most health care facilities and  licensed providers to adopt a written drug testing policy which must also address the issue of diversion of controlled substances. This law affects facilities including hospitals, infirmaries or health centers of educational institutions, home health care providers, ambulatory surgery centers and many other medical facilities.

The stated purpose of the law is to establish procedures for the “protection, detection and resolution of controlled substance abuse, misuse and diversion.”  The policy adopted by the employer must apply to all employees, contractors and agents “who provide direct or hands-on care to clients.”

The appropriate policy will address:

• How the facility will educate workers regarding drug use;

• Procedures for monitoring, storing, distributing and procuring controlled substances;

• Procedures for voluntary self-referral by addicted employees and for reporting of abuse by co-workers;

• Procedures for drug testing, including, at a minimum, reasonable suspicion testing;

• Requirements for confidentiality and employee assistance;

• Procedures for investigating, reporting and resolving misuse and diversion concerns; and

• Consequences of violating the policy.

The Legislature did not provide a great deal of guidance concerning the meat of the policy, and employers, therefore, do have some flexibility in the type of policy they would like to adopt.  A medical provider must develop a policy “appropriate to its size, the nature of services provided and its particular setting.”  An infirmary at a college or university with just a few affected employees would likely adopt different policies and procedures than would a hospital with hundreds of employees providing direct care.

The law requires testing when there is reason to believe an employee is impaired, but policies may go further if the employer deems it reasonable.  For example, pre-employment or random drug testing may actually provide greater protection to patients, and testing of those who do not provide direct care may be important as well.

A drug test will identify a user of illegal drugs and controlled substances, and employers will need to decide the consequences of a positive test. Those options should be outlined in the employer’s policy, and employers should strive to be consistent in the application of discipline that results from policy infractions.  The statute is not specific about the potential penalties for a licensed provider’s failure to comply, but it certainly establishes a standard by which providers will be measured in terms of patient protection.

Photo Credit: Kelly Schott via Flickr (CC by ND 2.0)

Headlines about Ray Rice and the NFL remind us all that domestic violence does not stop at the door of an employee’s home.  It is a serious crime and one that has lasting impacts on those affected by it.  This post provides guidance and information on what employers should know about domestic violence.

Domestic violence can happen to anyone, regardless of age, gender, marital status, socio-economic status, sexual orientation, or ethnicity/race.  It is a pattern of coercive behavior by one person over another.  It may include physical or sexual violence, stalking, or verbal, psychological, or economic abuse.  NH law protects persons who are victims of domestic violence.  There are also stalking and harassment laws.

When dealing with victims of domestic violence, employers should be flexible in allowing time off from work for medical treatment or court appearances.  NH requires leave for victims of crimes under the Crime Victim Leave Act, RSA 275:61-65.  Under this law, a victim of a crime may leave work to attend court or other legal or investigative proceedings associated with the prosecution of the crime.  A victim is broadly defined and includes the immediate family of any victim who is a minor or who is incompetent or the immediate family of a homicide victim.  The Act applies to employers with 25 or more employees.

Other laws may also be implicated when it comes to employees who are victims of domestic violence, such as reasonable accommodations due to a disability under the Americans with Disabilities Act (ADA) or the New Hampshire Law Against Discrimination.   (see guidance from EEOC)   Leave or intermittent leave under the Family Medical Leave Act (FMLA) may also be required.  (see guidance from US Department of Labor)  Also know that employers have a general duty to provide employees with a safe work environment and should have practices and policies in place consistent with this obligation.

No workplace is immune from the potential for workplace violence.  To be effective, companies should have a domestic violence policy, must develop a safety plan, be aware of studies of violence and domestic violence, and implement comprehensive training and educational programs for both management and employees.  Companies, on a regular basis, can make efforts to educate employees and make them aware of domestic violence.  Companies can put up posters in break or lunch rooms to let employees know where they or someone they know can reach out and seek help.  Referral to an EAP program is also an option.

An appropriate policy should include a policy statement regarding the company’s stance on domestic violence and should offer employees resources to increase their awareness of domestic violence to further reduce the impacts on the workplace.  The policy should also include a statement that violence of any kind in the workplace will not be tolerated and can lead to immediate disciplinary action up to and including termination.   Additionally, requiring an employee to inform the company when he or she obtains a retraining order from a court allows an employer to take steps to keep everyone in the workplace safe.

For organizations that do not currently have a policy addressing workplace violence prevention, more information is available through the Federal Government’s Office of Personnel Management, or for smaller businesses, through the U.S. Chamber’s Small Business Center.

Sample policies addressing domestic violence are available at the Corporate Alliance to End Partner Violence.  The NH Coalition & Crisis Management also has helpful information, which includes a list of crisis centers.  Information can also be found at the Department of Justice’s Violence Against Women division.

Photo Credit: MIke Kline via Flickr (CC by 2.0)

On July 25, 2014, Governor Hassan signed a bill into law that strictly limits the use of electronic devices, such as smart phones, while driving.  The bill – HB 1360 – while intended as a public safety measure, will also affect how employers shape their cell phone or electronic device policies.

This new law prohibits New Hampshire drivers from using “any hand-held mobile electronic device capable of providing voice or data communication” while driving or while temporarily halted in traffic, at a stop sign or red light, or any other momentary delay.  “Use” is defined broadly, and includes calls, reading or composing text messages or emails, accessing the internet on a device, and inputting information into a GPS.  Drivers are still permitted to use their devices in emergencies or to call 911, and may use a Bluetooth or other hands-free function to send or receive information while driving, provided that the driver does not have to divert their attention from the road ahead.  The exception for hands-free devices only applies to adult drivers, as teens under the age of 18 are not permitted to use electronic devices while driving except to report emergencies.  The statute carries fines violations of the law, which increase in amount for each offense.  The law takes effect on July 1, 2015.

Employers should review and update their cell phone or electronic device policies to confirm the policies are in compliance with this change in the law.  An employer’s restriction on employees’ use of electronic devices while driving should be consistent with safety and require compliance with the law in the state of use.  Employers that do not currently have cell phone or electronic device use policies may consider such policies given this recent law and the trend across the country on similar legislation.

 

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Governor Maggie Hassan recently signed two bills into law that may have significant impacts on New Hampshire businesses.  The first, HB 1188 , which takes effect on January 1, 2015, prohibits employers from discharging, disciplining, or otherwise discriminating against an employee because he or she disclosed the amount of his or her wages, salaries, or paid benefits.

House Bill 1188 was proposed as a companion law to SB 207, known as the “Paycheck Fairness Act,” and the passing of HB 1188 was dependent on the passing of SB 207.  Because the Governor signed SB 207 a week prior to signing HB1188, both bills became law.

The second bill, The Paycheck Fairness Act , prevents employers from discriminating between employees on the basis of sex by paying employees of one sex at a rate less than the rate paid to employees of the other sex for what the statute refers to as “equal work.”  Such work requires “equal skill, effort, and responsibility and is performed under similar working conditions” by both the employees of one sex and employees of the other sex.  The statute allows employers to pay employees of one sex at a lower rate than employees of a different sex if the decision is made pursuant to a seniority system, a merit or performance-based system, a system which measures earnings by quantity or quality of protection, based on the employee’s expertise, differentials in the employees’’ shifts, or factors such as education, training, or experience.  These exceptions give employers the necessary flexibility to make legitimate and reasonable pay decisions without having to look over their shoulders for discrimination claims.

Employers should review their anti-discrimination and retaliation policies and revise them accordingly to reflect this new form of discrimination.  Employers and human resources managers should also train their supervisory staff on how to implement the Paycheck Fairness Act and identify what jobs are considered “equal work.”  In addition, employers should review their pay scales and salary schedules to ensure that pay differentials and considerations for raises and bonuses are based on merit-based, seniority, or other acceptable systems as recognized in the statute.  Finally, with respect to the law on disciplining employees for disclosing the amount of their wages, employers should use caution when citing “insubordination” as a reason for terminating or disciplining their employees.  Specifically, if an employee complains about their pay, and in the course of verbalizing that complaint, discloses the amount of his or her wages, employers could face liability if that complaint was cited as the reason for the employee’s termination.