While delegate counts, the stock market, the cost of a tank of gas and the latest box score from the Red Sox seem to monopolize the evening news, this last year has also seen a number of noteworthy changes in employment law: laws that impact the workplace.
Congress and state lawmakers have been busy adopting new laws as well as amending existing workplace laws.
State and federal agencies also frequently update regulations and administrative rules. There were some new regulations adopted in New Hampshire this year. There are some important proposed regulations still pending in Washington. Finally, federal and state courts (as well as certain federal and state agencies that have quasi-judicial and enforcement powers) regularly interpret state and federal laws. These decisions, while usually built on precedent, can also vary -- sometimes significantly -- from case to case and court to court. To get a sense of some of the changes in this area of the law, here is an overview of some new laws, regulations and court decisions from the last year as well as some of the bills under consideration by Congress and the NH Legislature.
NEW LAWS, REGULATIONS AND COURT DECISIONS
Increased Number of Workplace Discrimination Charges Filed
The total number of workplace discrimination charges filed under federal law in fiscal year 2007 with the U.S. Equal Employment Opportunity Commission (EEOC) was 82,792. That was an increase of 7,024 over the previous year and a dramatic increase from the year before where the one year increase in changes was a mere 340 charges. Most practitioners attribute this increase to a downturn in the economy (when replacement or comparable jobs are not as plentiful charges of workplace discrimination usually increase). While sexual harassment is still one of the most common charges of discrimination nationally and is still the most common form of discrimination complaint in New Hampshire. On the national level in fiscal year 2007, race claims were most common. They accounted for 37 percent of all charges filed with the EEOC. Sexual harassment claims followed at 30 percent, with retaliation claims at 29.5 percent and age claims at 22 percent rounding out the other top slots.
Court Cases to Note
While there were interesting court decisions in the last year including decisions dealing with: what is required before an employee can file a claim of age discrimination; the type of evidence considered to support discrimination cases; and the limits on the enforcement of noncompetition agreements, perhaps more interesting during this last year were the many changes to state and federal workplace laws and requirements. Here are some of the more noteworthy changes.
CHANGES IN STATE AND FEDERAL LAWS
Civil Unions
Effective January 1, 2008, civil unions, same sex partnerships, were permitted in New Hampshire. State law was amended in several places to grant partners in civil unions the same rights, responsibilities and obligations as married couples. The impact on the workplace was principally in the area of employee benefits. Federal laws such as ERISA and the Federal Defense of Marriage Act, complicate matters in these areas as those statutes prohibit the recognition of civil unions or same sex marriages. This means, if the benefits plan is governed by Federal law, while the plan may permit expanded benefits, the law may not. More to come on this issue.
Minimum Wage Increases
For the longest time, the Federal and N.H. Minimum wage were the same: $5.15. That has now changed. Effective September 1, 2007 the N.H. Minimum Wage increased to $6.50 per hour. On July 24, 2008 the Federal Minimum Wage will increase to $6.55 per hour. On September 1, 2008 the NH Minimum Wage will increase again to $7.25 per hour. This means posters and payrolls need to change.
New I-9 Forms Required
Under federal law all employees must verify that new employees have authorization to work in the U.S. using a form known as the I-9 form employers check a new employees identity and his/her authorization to work in this Country. This must be done before the employee commences work. Employers must now use the new I-9 form; the June 5, 2007 version. Stay tuned, that form is already to be replaced.
Social Security No Match Letters
Late last year there was a flurry of activity about the use of a US Social Security No Match letters to employers. There were court challenges to directives from the Department of Homeland Security which effectively required employers to fire employees who couldn't reconcile or correct problems identified in the No Match letter. New rules and guidance are in the works so employers need to watch for these in the coming months.
FMLA Regulations- Proposed Changes
The Family and Medical Leave Act went into effect 15 years ago. The U.S. Department of Labor proposed changes to FMLA regulations which, if adopted, could significantly change many current FMLA procedures. Many of these changes could favor employers, but these bear watching as employer policies and procedures may need to change.
FMLA Meets Military Leave
One change that is already required is a recent amendment to the FMLA. In February 2008 the FMLA was amended to require employers to permit FMLA leave to returning military services members needing continued health care related to their services as well as leave for caregivers needed to help the service member and his/her family members.
New Definition of "Employee": Impact on Independent Contactors
Effective January 1, 2008 there was a new definition of employee under state wage and hour, workers compensation, and whistleblowers protection laws. In short, the definition presumes an individual is an employee unless the elements of the test are satisfied confirming the person is an independent contractor and therefore not covered by those statutes. While other state agencies promised better cooperation and coordination with the Department of Labor, the reality is that other state and federal laws have different standards and criteria for independent contractors. In short, even if a person is deemed to be an independent contractor under one law, he/she may work for an employer under another state or federal law.
New/Updated Workplace Posters
Posters (you know the cardboard or laminated notices located on your company bulletin board between the announcements about Tupperware, walk-a thons and girl scout cookies) in the workplace need to be up to date. While there are a few required posters (re: workers compensation, minimum wage/overtime, FMLA, etc.) there are several suggested or recommended posters (e.g. sexual harassment/discrimination complaint procedure). With the changes to the Federal and State minimum wage rates, the new definition of "employee" under state law and changes to the FMLA, those posters need to be updated.
Workplace Bills Pending Before Congress
While there are several perennial favorite workplace bills pending in Congress (bills that seem to appear each year like Cherry Blossoms) there are three bills that deserve serious attention this year. Those bills deal with efforts to require employers to use the e-verify system as a part of the I-9 process for new hires, as well as the proposed changes to the FMLA and the ADA (Americans with Disabilities Act). New Employee Verification Act of 2008. If this bill passes it would create a new e-verify system within three years and that system would address/correct problems with the current system as well as incorporate new elements including the use of biometrics. Expanded FMLA. Proposed changes to the FMLA could either expand the law further to include the case for a same sex spouse or domestic partner, or require employers to provide employees with up to 8 weeks of paid family leave. Given the scope and potential costs of these proposed changes employers need to watch these bills. ADA Restoration? Finally, Congress is considering changes to the ADA as a part of the "ADA Restoration Act". This bill if passed would redefine "disability" and effectively undue the changes created by U.S. Supreme Court decisions in recent years. One significant change would be to shift the burden of showing a person is qualified to perform a job from the applicant/employee to the employer. Many fear that these changes, if adopted, could confuse the exchanges between employer and employee about workplace accommodations, causing more litigation and defeating the main purpose of the ADA which was to tear down physical and societal barriers and give the disabled a fair chance to perform sought jobs.
Workplace Bills Pending in New Hampshire
At this point in the legislative session only a few workplace bills remain standing. Others have been referred to study committees, been deemed inexpedient to legislate or killed outright. The bills that remain, as of the date this article was written, include: a proposal to require health insurers to offer small employers a standard wellness plan that emphasizes prevention, management of chronic conditions and best practices; a bill that would permit unemployment benefits to part time employees (someone who worked part-time hours and is only seeking part time work); and a bill that would help expedite the municipal review process for developers seeking to build workforce housing units.
Stay tuned folks!
Employers interested in the status of pending state laws can visit http://www.gencourt.state.nh.us/ie/.
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