On January 5, 2023, the Federal Trade Commission (“FTC”) issued a Notice of Proposed Rulemaking (“NPRM”) to prohibit employers from entering into post-employment non-compete agreements with workers. The proposed rule, if adopted, would essentially ban non-compete agreements nationwide, with very limited exceptions.  The FTC will soon publish the NPRM in the Federal Register, triggering a 60-day public comment period.‎  Here are answers to some of the key questions employers may have about the proposed rule. Continue Reading FTC Proposes Rule that Would Ban Almost All Non-Compete Agreements Across the United States

The employee interview process is a critical component of building and shaping school culture.  Not only is it a chance to learn more about candidates to your school and to determine their fit for a particular role, but it is also an opportunity to introduce your school, including its mission and vision, to the candidate.  The goal of the process is to find the right match between a candidate and a school; hiring the right employee will help fill a critical position while also helping to ensure a long-term, collaborative relationship between that employee and the school.  Similarly, schools should endeavor to avoid legal claims that could result from inappropriate, or even illegal, questions asked during an interview.

To best establish a lawful, engaging, and effective hiring process, schools should consider incorporating a number of straightforward tips and should be cautious of asking interview questions that could create legal exposure to the school.  This article addresses both areas in turn below.

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To kick off the New Year, employers with 11 or more employees working in Maine will need to review their policy related to the handling of accrued yet unused paid vacation at the end of employment.

Maine passed an amendment to Labor Law §626 requiring unused vacation time accrued on and after January 1, 2023, to be paid to employee at the end of employment. Final wages, now including unused, accrued vacation, must be paid to terminated employees no later than the next established payday. Continue Reading New Maine Vacation Payout Law Effective on January 1, 2023

On October 20, 2022, the Equal Employment Opportunity Commission (EEOC) published a new poster entitled “Know Your Rights.”  This new poster replaces the previous “Equal Employment Opportunity Is the Law” poster.  All employers subject to federal EEO laws must display the “Know Your Rights” poster on their premises in a conspicuous place.  The EEOC encourages employers to post it online as well.  An exclusively digital posting of “Know Your Rights” is permissible, but only if the employer does not have a physical location or its employees work remotely and do not come into the office regularly. Continue Reading EEOC Releases New Mandatory Workplace Poster

Published in the New Hampshire Business Review (10/20/22)

In January 2021, during the final days of the Trump Administration, the Department of Labor issued a new rule regarding the classification of employees and independent contractors for purposes of the federal Fair Labor Standards Act.  This rule, viewed by many as being more “employer friendly” than previous DOL policies, applies an “economic reality” test that asks whether “the individual is, as a matter of economic reality, in business for him or herself.”  The test considers five factors, but emphasizes two in particular: the nature and degree of the worker’s control over the work, and the opportunity for profit or loss.  The remaining factors are subsidiary, and are only to be considered if classification is not clear after applying the first two.

Almost immediately, the Biden Administration took steps to delay, and then rescind the Trump era rule.  Earlier this year, a federal court blocked these efforts, and, for now, the 2021 Independent Contractor Rule remains in effect.  All of this back and forth has called into question the standards for determining employee classification questions under the FLSA and has caused significant confusion for employers.

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On July 26, 2022, Massachusetts Governor Charlie Baker signed into law the Creating a Respectful and Open World for Natural Hair (CROWN) Act, which prohibits discrimination based on natural and protective hairstyles in the workplace, public schools, and places of public accommodation (such as hotels and restaurants). The Act amends Massachusetts’ existing anti-discrimination laws, adding “hair texture” and “hair type” to the list of already protected categories (e.g., race, color, religious creed, national origin, sex, gender identity, and sexual orientation). Continue Reading Massachusetts Enacts CROWN Act Prohibiting Discrimination Based on Natural and Protective Hairstyles

Published in the New Hampshire Business Review (9/15/22)

Many business leaders and human resources professionals believe that cyber security is the responsibility of their information technology staff and managed services provider. However, ensuring that employees and their families have appropriate cyber security protection is an employee benefit that benefits employers as well.

Mistakes, lack of awareness, and general vulnerability of employees remains the most significant cyber security risk for most employers. Simply training employees about cyber threats typically fails to reduce that risk sufficiently. To have a truly cyber mature workforce, employers need to engage employees in cyber security. Teaching employees about the threats to themselves and their families, and making personal protection services available to them, is a much better method to engage employees in cyber security.

Training. Cyber security training is not most people’s idea of a good time. However, employees sit up and take notice when trainers talk to them about the prevalence and severity of the cyber threats to themselves personally, including their identities, credit files, financial accounts, personal devices, and home networks. Additionally, explaining that their aging parents and children face these same threats never fails to get employees meaningfully engaged. Employers can then translate that personal engagement into an increased awareness and commitment to the cyber security policies and practices that protect the business.

The following are a few training opportunities that typically motivate employees: (a) taking control of your credit bureau accounts, extinguishing fraudulent or unnecessary credit, and freezing or locking your credit; (b) obtaining identity, credit, and financial crime protection for yourself and your family; (c) ensuring that your personal financial accounts are secure from theft; (d) hardening your home network and online accounts; and (e) ensuring the online safety of yourself and your family members.

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Published in the New Hampshire Business Review (8/11/22)

New guidance narrows employers’ ability to screen employees.

On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 workplace guidance and this article summarizes the key topics that employers should understand.

Return to Work Testing and Documentation

Under the Americans with Disabilities Act (ADA), any medical exam that an employer requires of an employee must be “job-related and consistent with business necessity.” Required COVID testing for employees is considered a “medical exam” and at the onset of the pandemic, the EEOC advised that COVID testing was a business necessity for all employees as an approved method for curbing transmission.

The July 12 guidance narrows what was a broad screening approach and now requires employers to assess whether screening a particular employee is consistent with the prior medical exam standard. The EEOC cautions employers to check with the public health authorities on screening guidelines, which will change depending on the level of virus detected in a particular region. Other factors that implicate “job-related” and “business necessity” include an employee’s vaccine status, the transmissibility of the current variant, contact between others in the workplace, and the impact of a COVID-positive employee on overall operations. In addition, the EEOC has updated its guidance to permit employees to provide an email from a medical provider or time-stamped documentation from a clinic indicating that the employee is at no risk for transmission, given that obtaining a doctor’s note can take a few days.

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With the end of the 2022 second quarter and inflation at a record high in more than four decades, some employers may be forced to take measures to reduce overall operational expenses. Reducing payroll costs is one of the cost-savings measures available to employers in these circumstances.  Unfortunately, however, this often results in the loss of employment for employees by way of a reduction in force, or a “RIF.”  If a company must move forward with such a process, it must be carefully planned and executed in order to minimize the risk of employment law claims.  Below is an overview of factors business owners and human resources professionals should consider when implementing reductions in staff, schedules or compensation.

Continue Reading Employee Reductions in Force, Furloughs and Other Cost-Savings Measures