New Hampshire News & Analysis

  • Winter is coming: FLSA and your pay obligations during inclement weather

    During the winter months, the threat of the weather turning frightful is on everyone's mind. No matter what business you may be in, inclement weather and treacherous road conditions can cause many headaches—including issues with employee payroll. Many employers grapple with the question of how to pay employees when the business is closed because of bad weather and whether deductions from pay for closures are allowed. Let's explore what the Fair Labor Standards Act (FLSA) requires of employers when Mother Nature wreaks havoc.

  • Looking back at 2019 and to what's ahead for federal agencies in 2020

    The National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), and the Department of Labor's (DOL) Wage and Hour Division (WHD) all ramped up their enforcement endeavors in 2019. The NLRB has refocused its efforts on unionized businesses, the new EEOC chair is pushing to settle old cases, the OFCCP director is aiming to end the year with the largest settlement total in the agency's history by resolving or litigating old audits, and the WHD has filed a record number of enforcement cases against employers.

  • SCOTUS decision on LGBTQ workplace protections coming in 2020

    Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against employees or job applicants on the basis of race, color, religion, sex, or national origin. In recent years, controversy over whether the term "sex" as used in Title VII includes sexual orientation and gender identity has arisen among the federal circuit courts of appeals. The U.S. Supreme Court has agreed to resolve the split. No matter where the Court falls on the issue, the decision will supersede existing precedent in at least some circuits and will have a lasting impact for decades to come.

  • Truth about holiday season? It's not always what it's nut-cracked up to be

    Many of us are fully involved in the crush of festivities and holiday shopping that traditionally mark the beginning of the sprint to New Year's Eve. This is the season of peace on earth and good will toward our fellow man, right? Well, not always.

  • Proposed rule aims to expand use of fluctuating workweek

    A new proposed rule from the U.S. Department of Labor (DOL) intends to clarify that employers that pay nonexempt workers bonuses or other incentive-based pay in addition to a fixed salary can use the fluctuating workweek (FWW) method of paying overtime as a way to keep costs down as long as other requirements for using the method are met.

  • Agency Action

    NLRB reports progress in case processing. The National Labor Relations Board (NLRB) has reported improved case processing statistics for fiscal year (FY) 2019. The NLRB issued 303 decisions in contested cases during FY 2019. Adopting a case processing pilot program, the Board focused on issuing decisions in some of the oldest cases. As a result, the median age of all cases pending before the Board was reduced from 233 days in FY 2018 to 157 days at the end of FY 2019. The NLRB also said it reduced the number of cases pending before it to its lowest level since 2012. As of the end of FY 2019, the number of pending cases was reduced from 281 at the end of FY 2018 to 227 when the report was released on October 7. Also, the NLRB regional offices made strides toward meeting the Board's strategic goal to reduce case processing time by 20 percent over four years. In just one year, the regions overall nearly met the four-year goal by reducing the time of filing to disposition of unfair labor practice cases from 90 to 74 days, a decrease of 17.5 percent.

  • New breadth, focus, identity for your Employment Law Letter

    At Business and Legal Resources (BLR), our goal is to provide employers and HR professionals like you with the most up-to-date information on changes that affect your department. After reviewing our product line, we have decided to give your Employment Law Letter a much-needed upgrade.

  • Second time's a charm? Vetoed paid family leave bill updated, reintroduced

    On November 12, the New Hampshire House Finance Committee approved a new version of a mandatory paid family and medical leave insurance program. The bill is similar to the one vetoed by Governor Chris Sununu in the last legislative session, but this version includes some changes that were reportedly made in response to objections to the earlier bill from business leaders last year.

    Version 2.0

    In this latest version, House Bill (HB) 712 would impose a 0.5% payroll deduction on all private employees in order to provide workers with paid family and medical leave benefits up to 60% of their wages. This bill, like the federal Family and Medical Leave Act (FMLA), permits eligible employees of covered employers to take up to 12 weeks off per year because of their illness or to help care for a family member. FMLA leave is unpaid unless the employee uses her accrued paid time off (PTO).

    The New Hampshire bill, if it becomes law, would provide pay for leave, up to 60% of the employee's regular pay, and other statutory limits. Employers would be permitted to pay the premium for their workers, allow them to pay for it, or come up with their own program, as long as the benefits are the same as the law establishes.

    At the end of the last legislative session, Governor Sununu vetoed Senate Bill (SB) 1 because he viewed it as flawed and, more importantly, as an income tax. As an alternative, he proposed a voluntary program to be negotiated with state employees and allowing private employers to buy into it. But that program also failed to materialize. Sponsors have said they plan to introduce another version of the bill this session.

    In the meantime, HB 712 differs from last session's version in a few areas:

    • The vetoed bill had a "sustainability mechanism," similar to such bills passed in other states, allowing the Department of Employment Security to adjust the premium rates as needed. Critics complained this would give an unelected official the power to raise "taxes."
    • The vetoed bill also would have extended federal FMLA protections to companies with over 20 employees. HB 712 keeps those protections at 50 employees, as they are under the FMLA, although there are antiretaliatory provisions to protect all employees who take family and medical leave.
    • The new bill describes how the program would pay back the general fund for its startup funding of $3.5 million in the first year and $12 million during the second year. Under the amended bill, the program will start paying the general fund back in three years, with 10% in year three, another 30% in the fourth year, and the remainder in the fifth year.

    Bottom line
    The full house is expected to vote on the bill in January. Opposition is still expected to be stiff.

    Stay tuned!

    Attorney Jim Reidy is a partner at Sheehan Phinney where he is the chair of the firm's labor and employment law practice group. He can be reached at jreidy@sheehan.com.

  • Changing laws, attitudes pushing employers to explore alternatives to drug tests

    Nobody wants an impaired person on the job, especially in a safety-sensitive position. But how can a supervisor know if an employee who seems a little off is high? And—perhaps more important—how can an employer screen applicants to reduce the chance of hiring someone who is likely to come to work impaired? The first thought may be to use drug testing, but that option isn't as simple as it once was.

  • Looking to add an innovative benefit? Student loan assistance an option

    On a quest to recruit top talent, many employers are getting creative with perks and benefits. Free food and ping-pong tables are nice. So is a generous employer match on a 401(k). But many employees may not get too excited about perks and retirement benefits when they're struggling with student loan debt. And it's that financial burden that is leading employers to explore ways to ease the pain for their debt-ridden workers.