On April 1, 2015, a new law that vastly expands the rights and protections afforded to domestic workers went into effect in Massachusetts.  The “Domestic Workers Bill of Rights” grants domestic workers a slew of new workplace protections, including a broader definition of compensable “working time,” mandatory rest days for full-time workers, privacy protections, a grievance procedure and the right to performance evaluations.  Massachusetts is only the fourth state in the country (after New York, California and Hawaii) to pass a Bill of Rights for domestic workers.

The law covers all individuals employed to perform work of a domestic nature in a household with the exception of personal care attendants and casual babysitters.  Thus, housekeepers and nannies as well as caretakers and companions for the sick and the elderly are all protected under the new law.  In addition, the law applies to anyone that employs a domestic worker—whether you are an individual or family employing one worker in your home or a large company that employs hundreds of workers in different households.

The major provisions of the law can be summarized as follows:

“Working Time” – Employers must compensate workers who do not reside on the employer’s premises and who are on duty for less than 24 consecutive hours for all meals and breaks unless, during those times, the worker is free to leave and use that time for his or her sole benefit.  With respect to workers who are on duty for 24 consecutive hours or more, employers must compensate them for all meals, rest and sleeping periods.  However, the employer and the worker may agree in writing to exclude a regularly-scheduled sleeping period from compensated time.  The scheduled sleeping period may not exceed 8 hours for each 24 hour period.

Rest Days – Employers must give workers employed for 40 hours or more per week 24 consecutive hours of rest each week and 48 consecutive hours each month.  While the worker may voluntarily agree to work on a day of rest, that agreement must be in writing and the employer must pay the worker the overtime rate for that day. 

 Meals and Lodging  – An employer may deduct from the worker’s wages an amount for any food and beverages freely chosen by the worker, unless the worker cannot easily bring or prepare meals on the premises.  An employer may also deduct an amount for lodging if the worker freely accepts and actually uses the lodging and the lodging is adequate, decent and sanitary.  But, an employer may not deduct for lodging if the worker is required to reside on the premises or in a particular location.  An employer may not deduct an amount for meals or lodging from the worker’s wages without the worker’s prior written consent.

Privacy – Domestic workers have a right to privacy, and an employer may not restrict or interfere with a worker’s means of private communication (e.g. cellphone, laptop), monitor a worker’s private communications or take a worker’s documents or other personal effects.

Termination  – If an employer terminates a worker who resides in his or her household without cause, the employer must provide the worker with written notice and 30 days of lodging or a severance payment equal to two weeks of earnings.

Performance Evaluations – Workers may request a written performance evaluation after three months of employment and annually thereafter, which they may inspect and dispute.

Recordkeeping – Employers are required to maintain extensive records for workers employed more than 16 hours per week, including the rate of pay; working hours and time off; the policies on sick days, vacation days, transportation, health insurance and severance; the job responsibilities; the process for raising and addressing grievances; and the right to worker’s compensation if injured.

Notice – Employers must provide workers with a notice that contains all state and federal laws that apply to the employment of domestic workers.

Employers unaware of the new law will most likely need to overhaul their existing scheduling and recordkeeping practices as well as redefine the employment terms and compensation for many of their workers.  Employers should begin that process now to ensure full compliance with the law as soon as possible.

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.

 

 

 

 

The US Supreme Court on March 25, 2015 decided the case of Young v. United Parcel Service, Inc.(UPS).  The issue in the case was whether, and in what circumstances, the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k), requires an employer which provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

Photo: TipsTimesAdmin via Flickr (CC by 2.0) - tipstimes.com
Photo: TipsTimesAdmin via Flickr (CC by 2.0) – tipstimes.com

UPS offered  a “light duty program” to workers who were injured on the job, were disabled under the Americans with Disabilities Act (ADA) or had lost their Department of Transportation certifications.  UPS, however, did not provide any such accommodations to pregnant employees who were not disabled. Young challenged the policy arguing that the PDA requires an employer to provide pregnant employees light duty work if it provides similar work to other employees in other circumstances.    

Young worked as a  part-time driver for UPS where her responsibilities included pickup and delivery of packages. She had suffered several prior miscarriages so when she became pregnant, her physician limited her to lifting 20 pounds during the first 20 weeks of her pregnancy and 10 pounds thereafter.  Her normal job requirement was that she be able to lift parcels weighing up to 70 pounds herself and 150 pounds with assistance.  UPS did not allow Young to work under this restriction resulting in her staying out of work without pay for most of her pregnancy and ultimately losing her health insurance benefits.  Young filed suit, and UPS responded by saying that other employees which had been accommodated fell within one of the three categories referenced above; and since Young did not, there had been no discrimination.

The Fourth Circuit Court of Appeals sided with UPS and ruled that: (1) the employer did not “regard” a pregnant employee as disabled under the Americans with Disabilities Act (ADA); and (2) employers are not required under the PDA to provide pregnant employees with light duty assignments so long as the employer treats pregnant employees the same as non-pregnant employees with respect to offering accommodations.  That court further referred to UPS’ policy as “pregnancy blind” showing no discriminatory animus toward pregnant workers.

The Supreme Court reversed the decision and remanded the case back to the trial court to allow Young to pursue her claim.  The Court, refusing to accept the interpretation of the PDA espoused by either party, concluded that once an individual pregnant worker like Young made a prima facie showing of discrimination “by showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under Title VII.”  In Young’s case this meant showing that she belonged to the protected class, that she sought accommodation, that the employer did not accommodate her, but did accommodate others “similar in their ability or inability to work.”  Thereafter, the employer must justify its refusal to accommodate the employee based on “legitimate, non-discriminatory” reasons.  The fact that the accommodation might be expensive or inconvenient for the employer is not necessarily sufficient justification.  Even once the employer presents its justifications, the employee has an opportunity to show that the reasons offered are pretext for discrimination.

The Court concluded that Young had created a sufficient factual issue regarding whether UPS provided more favorable treatment to non-pregnant employees in situations which could not be distinguished from hers to allow her to take her case to a jury.

Based on this decision employers should review their policies surrounding accommodation for pregnant and non-pregnant employees to insure that there is no unjustifiable disparate treatment occurring.

Photo Credit: La Citta Vita via Flickr (CC by SA 2.0)
Photo Credit: La Citta Vita via Flickr (CC by SA 2.0)

In one of his last official acts as governor, Deval Patrick signed into law the new Massachusetts Parental Leave Act.  The new law, which goes into effect on April 7, 2015, expands the current Massachusetts Maternity Leave Act to cover male employees as well as females.  The new law also makes several other significant changes that employers will need to be mindful of.

The current Maternity Leave Act, which effects Massachusetts employers with six or more employees, allows eligible female employees to take up to eight weeks of leave (paid or unpaid at the discretion of the employer) for the purpose of giving birth or adopting a child.  The new Parental Leave Act makes leave available to male employees as well.  This change to the law comes as no surprise to many who saw the expansion of leave benefits to men as inevitable.  The MCAD has long held the view that the Maternity Leave Act’s provision of leave for women and not men was inconsistent with Massachusetts’s antidiscrimination law.

But beyond expanding leave benefits to men, the Parental Leave Act includes several other significant changes:

  • The Act softens the employee’s obligations for providing notice of an intent to take leave. The current law states that the employee “shall give at least two weeks’ notice to the employer of the anticipated date of departure.”  The new law allows employees to provide notice “as soon as practicable” in situations where two weeks’ notice in not possible for reasons beyond the employee’s control.
  • Couples who work for the same employer will not be allowed to “stack” their leave under the Act. Any two employees of the same employer are entitled to a maximum of eight weeks in aggregate for the same child.
  • New language in the statute also overrides a 2010 decision of the Massachusetts Supreme Judicial Court which held that the Maternity Leave Act’s protections did not apply to women who took more than eight weeks off, even with the employer’s approval. Under the new law, employers who allow more than eight weeks of parental leave cannot deny reinstatement unless they notify employees clearly in writing, before the start of the leave, that taking more than eight weeks will result in denial of reinstatement or loss of other rights and benefits.
  • Currently, employers are required to provide notice of the provisions of the Maternity Leave Act in establishments in which females are employed. Under the new law, employers will be required to conspicuously post notice of the Act, as well as notice of the employer’s policies relating to parental leave.

 

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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/.

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In a unanimous decision, the US Supreme Court once again addressed the issue of whether time the employer requires an employee to do something is compensable under the Fair Labor Standards Act.  Integrity Staffing required its warehouse workers whose job it was to retrieve inventory and package it for shipment to undergo an antitheft security screening before leaving the warehouse each day. During the screening, employees removed items such as wallets, keys, and belts and passed through metal detectors.  Employees filed suit for unpaid wages arguing that the time spent waiting for and being screened was compensable, in part because they were required by the employer to do so. Continue Reading Integrity Staffing Solutions v. Busk, et. al: US Supreme Court Reverses Court of Appeals for the Ninth Circuit: Warehouse Workers’ Time spent in Post-Shift Security Screen Not Compensable

Domestic and sexual violence is now in the news almost every day, and New Hampshire has followed its neighboring state, Massachusetts, in enacting protective legislation.  As of August 8, 2014 most Massachusetts employers became obligated to provide leave from work to victims of domestic violence to enable them to seek treatment, obtain restraining orders or cooperate with law enforcement.  New Hampshire has for many years provided similar protections to victims of all crimes.  Now, effective September 9, 2014 New Hampshire employers are prohibited from discriminating against victims of domestic violence in the terms and conditions of their employment.  Pursuant to RSA 275:71 it is an unlawful employment practice for an employer to refuse to hire an otherwise qualified individual because the individual is a victim of domestic violence, harassment, sexual assault, or stalking.    Businesses are also prohibited from discharging, threatening to discharge, demoting, suspending, or in any manner discriminating or retaliating against an individual with regard to promotion, compensation or other terms, conditions, or privileges of employment because the individual is a victim of domestic violence, harassment, sexual assault, or stalking.

This legislation passed earlier in 2014 in an amended format in a compromise action by the New Hampshire House and Senate.  Original versions of the bill would have required employers to provide reasonable safety accommodations which might include leaves of absence or job restructuring.  The version of the bill which passed included the prohibitions above and also established a committee to study the protection of employees from domestic violence and to report its findings and make recommendations for future legislation.

Domestic and sexual violence have gotten significant press recently whether due to off field behavior by NFL players or the activities of college students on campuses nationwide.  However, the statistics have remained fairly constant.  As long ago as 2000 the National Coalition Against Domestic Violence reported that one in every four women will experience domestic violence in her lifetime.  What that means for employers is that there are likely multiple victims of violence by an intimate partner in your workplace, and the law continues to evolve in ways which seek to enhance protections for these victims.

Employers should be mindful of this statute when they learn that workers they employ might be victims of domestic or sexual violence.  Before taking any action to discipline or terminate an employee who might be a victim, take the time to consult with counsel to make certain you are not running afoul of the many laws which provide protection to your employees.

Yesterday, U.S. Attorney General Eric Holder issued a memo setting out the Obama Administration’s position that Title VII specifically prohibits discrimination based on transgender status or gender identity per se.

In the memo, Attorney General Holder pointed out that questions have arisen in a number of administrative and judicial contexts as to the appropriate legal standard applicable to claims of gender identity discrimination.  While courts have recognized gender identity discrimination claims under a “sex-stereotyping” theory – discrimination based on a perceived failure to conform to particular gender characteristics – there is no consensus among courts as to whether discrimination based on gender identity or transgender status, per se, is illegal. Continue Reading DOJ Now Interprets Title VII as Prohibiting Discrimination Based on Transgender Status

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Employees’ rights to act together to address conditions at work are protected under the National Labor Relations Act. This protection applies equally to both union and non-union employees and extends to employees’ work-related conversations on social media.  But, as many employers may wonder, how far does the protection of the Act reach?  The NLRB’s decision in Richmond District Neighborhood Center and Ian Callaghan (Case 20-CA-091748, October 28, 2014) provides some guidance on it.

Continue Reading “Egregious” Conduct on Social Media Not Protected by the NLRA

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.