New Hampshire Employment Law Update 2008

• RSA 275:4 was amended to adopt a uniform definition of employee. The revised statute sets out 12 factors, all of which must be met, in order to classify a worker as an “independent contractor”. Employers must carefully review all elements of their independent contractor relationships to ensure they continue to meet that definition under the amended statute. The NH Dept. of Labor has flagged the mischaracterization of independent contractors as a major focus of their investigations unit for 2008 and has hired four new investigators for this purpose! Visit our website for a more detailed discussion of the 12 factors.

• Effective August 17, 2007, all employers were required to post a notice containing the criteria for establishing an independent contractor relationship. Those employers who posted this notice back in August now need to update that posting to reflect the new criteria of the amended RSA 275:4.

• RSA 457-A allows same gender couples to enter into a civil union and have all the same rights as married couples. Employers must extend all benefits offered to spouses under state law to civil union partners. However, the Federal Defense of Marriage Act (DOMA) prohibits the recognition of same sex civil unions under federal law. Therefore, employers must examine each benefit they offer to determine whether they must, can, or are prohibited from extending each benefit they offer to civil union partners. This is a complex analysis with far-reaching implications and should involve your counsel.

• Both the federal and state minimum wage were incrementally increased. The applicable rates are:

  September 1, 2007 – July 23, 2008 = $6.50/hour

  July 24, 2008 – August 31, 2008 = $6.55/hour

  After September 1, 2008 = $7.25/hour

• Two important changes for employers in the service industry:

  Effective July 2, 2007, employers must pay tipped employees a base rate equal to 45% of the minimum wage in effect;

  RSA 279:26-b codifies the existing Dept. of Labor regulations regarding tip pools. While an employer may administer a tip pool, participation by employees must be voluntary and without coercion. The employer cannot exercise any control over the manner in which tips are pooled, other than for bookkeeping purposes.

• Payment of wages via payroll cards is now authorized, as long as the employee has at least one free means to withdraw any portion up to the full amount of the balance at a location convenient to the place of employment. No costs can be passed on to the employee.

• RSA 275:48 codifies existing Dept. of Labor regulations regarding deductions an employer may make from an employee’s wages. The only change from the existing regulations is that voluntary payments for a health or fitness facility may now be deducted, but only if the facility is either located in the workplace, or is privately owned and offers at least a 50% discount to employees or the employer.

• “Uniform” is finally defined as “a garment with a company logo or fashion of distinctive design, worn by one or more employees, and serving as a means of identification or distinction.” Remember, if you require your employees to wear a “uniform”, you must pay for it.

• For our health care providers, an important addition to RSA 275:49 prohibits employers from disciplining a registered nurse, licensed practical nurse, or a licensed nursing assistant, for refusing to work more than 12 consecutive hours. Certain exceptions, including a collective bargaining agreement, may apply. A nurse who is required to work more than 12 consecutive hours must be given at least 8 consecutive hours of off-duty time immediately following the worked overtime. It is especially important for non-unionized health care facilities to train their managers regarding proper scheduling of nurses in the New Year.

• The FMLA was expanded to include Servicemember Family Leave, which includes:
  • Up to 12 weeks of leave for “any qualifying exigency” because a spouse, child, or parent of the employee is on active duty in the Armed Forces in support a contingency operation (i.e., military action against an enemy). “Qualifying exigency” has not yet been defined.
• Up to 26 weeks of leave during a single 12 month period for an employee to care for a spouse, child, parent or next of kin who is seriously injured in the line of duty.

This expansion was passed by Congress on December 14, 2007 as part of the 2008 National Defense Authorization Act. We do not yet know when it will become binding on employers, or when implementing regulations will be issued. If one of your employees requests leave under this new expansion, we strongly recommend you consult with counsel.

• The First Circuit Court of Appeals recently ruled that holidays falling within a week when an employee is out on intermittent FMLA leave can be included in calculating an employee's total FMLA leave entitlement. Employers should review and update their FMLA policies and procedures accordingly.

• RSA 276-A:4 was amended to remove the requirement that youth aged 16 or 17 have written permission from their parents to work, if the youth has either graduated from high school or obtained a GED.
• The authority of the NH Dept. of Labor to assess a civil penalty for violation of the youth employment law was raised from $1,000 per violation to $2,500 per violation.

• RSA 275:56 was amended to prohibit employers from including in an employee personnel file any information regarding an employee’s health, fitness, lifestyle or any other information obtained by an employer during a health risk assessment or other wellness program.

• The U.S. Citizenship and Immigration Services (USCIS) issued a new Employment Eligibility Verification Form (Form I-9) which all employers are now required to use. The revised I-9 limits the documents employers may accept to verify employment eligibility. The new form is available for download on our website or from USCIS.

• The New Hampshire Supreme Court ruled this year that the NH Dept. of Labor may order an employer to pay an employee’s attorney’s fees and expenses if the employee wins a whistleblower claim at a Department hearing. This raises the stakes considerably for employers defending a whistleblower claim from an employee.

• RSA 282-A:32 was amended to allow a person to remain eligible for unemployment benefits if s/he can only work part-time and/or certain shifts if s/he is only person available to care for an ill, infirm, or physically or mentally disabled family member.

• Occupational Safety & Health Certification

Companies who contract with the state or a municipality for a construction contract with a total project cost of $100,000 or more must obtain an Occupational Safety and Health Administration (OSHA) Certification, which requires the completion of a 10-hour construction safety program for all on-site employees. Noncompliance can lead to a $2,500 fine plus an additional fine of $100 per day for each employee who has not completed the course.

Effective September 14, 2007, HB 471 removed the officer/member exclusion for Worker’s Compensation insurance where the officer/members is “actively engaged in on-site work” at any construction project in the state. Due to widespread outrage over the effect of this bill on small businesses in the state, the Legislature is expected to amend this bill during the first days of the 2008 session. Check our website for updates on the status of this new law.

• Have a comprehensive employee handbook that is updated annually and drafted or reviewed by an experienced employment attorney;
• Provide interactive training for all supervisors and managers on topics such as enforcing your workplace policies, identifying harassment, and implementing safety plans;
• Maintain a relationship with an experienced employment attorney who can answer your questions and provide practical solutions throughout the year.