BIA REPORT
Employment Law Update
State and federal developments of interest to New Hampshire employers
April 2000 issue:
By Andrea Johnstone and Anne Scheer*
Don't Let Sexual Harassment Claims Go Uninvestigated
Do you believe you face a Hobson's choice when confronted with a sexual harassment claim: fail to investigate and risk liability on the sexual harassment claim; or investigate and risk liability on claims by the alleged harasser for infliction of emotional distress, wrongful discharge, negligent investigation, defamation and/or or other creative claims? Take comfort, courts almost universally hold employers liable for failing to adequately investigate a sexual harassment claim, and almost never uphold claims by an alleged harasser.
Courts recognize that an employer's investigation of a sexual harassment complaint is not a gratuitous or optional undertaking. And, recognize that virtually any investigation into allegations of sexual harassment foreseeably produce emotional distress for the alleged harasser, whether guilty or innocent. Courts acknowledge that such investigations cannot and should not result in employer liability even if the charge later proves baseless. Recent decisions acknowledge that in conducting an investigation an employer must initially assume a worst case scenario and conduct its investigation accordingly.
Absent outrageous conduct by an employer in conducting a sexual harassment investigation, federal courts have not been hospitable to claims by accused harassers that their rights were violated.
Employers must promptly and fully investigate all possible sexual harassment, and should do so without unduly focusing on the potential of claims by the alleged harasser. Failure to fully investigate a sexual harassment claim will almost always result in liability, if the harassment took place, and it will undermine the Company's ability to claim it has an effective sexual harassment policy and takes claims seriously in the future.
Vacation Pay
The New Hampshire Department of Labor continues to confront numerous claims for vacation pay. Many, if not most, of these cases are the result of the employer failing to provide its employees with clear written notice of its vacation practices and policies.
New Hampshire law does not require employers to provide employees with any paid vacation time. However, if an employer chooses to grant paid vacations, New Hampshire law specifically states that such pay is included in wages due to an employee. N.H. RSA 275:43 III.
Furthermore, New Hampshire RSA 275:49 III mandates that "[e]very employer shall make available to his employees in writing or through a posted notice maintained in a place accessible to his employees its employment practices and policies with regard to vacation pay, sick leave and other fringe benefits." The law on this issue couldn't be clearer. Employers must put their vacation practices and policies in writing. Any employer who does not do so is almost certain to lose a wage claim for vacation pay brought before the Department of Labor. (See Miville v. Allen Datagraph, Inc., and Silva v. The Mellen Company, Inc.)
In another recent N.H. DOL wage claim, Kelso v. Stokel, the employee claimed that at hire she was orally told she would receive one (1) week paid vacation after one (1) year of employment. The employer argued that all it agreed to at the time of hire was that it would consider giving one-week vacation pay after the employee completed one year of service. The employer testified it has never given vacation pay. The Department ruled that the employer's failure to put in writing its policy of no vacation pay and/or its willingness to further discuss the issue after one year of service, violates RSA 275:49 III. This violation, the Department concluded, led to a "misunderstanding" between the parties as to the employee's entitlement to vacation pay. As a result, the Department ordered the employer to pay the employee one week vacation pay.
Lesson learned: All employees should be informed in writing whether or not any vacation time and/or pay is given. If vacation time or pay is given, a written vacation policy should be provided to every employee including:
- when vacation time/pay is earned: front-loaded, prorated, or after a specified period;
- whether vacation time is paid or unpaid;
- whether vacation time can be accrued or must be used within a specified period;
- whether unused vacation time will be paid upon termination;
- any restrictions on the use of vacation time, such as it must be used during a plant shut-down;
- any prior approvals that must be obtained for use of vacation time;
- any other requirements imposed on the receipt of vacation benefits, such as requiring the employee to work the day before and the day after scheduled vacation; minimum number of hours per week that must be worked to qualify (full-time/part-time); any leaves of absence during which vacation benefits will not accrue.
Wages Due Those Who "Hang Around"
The New Hampshire Department of Labor has recently issued several decisions with regard to individuals the employer has told not to work or whom the employer claims never worked but, just "hung around" and/or may have occasionally "helped out." State and federal law provide that "work not requested but suffered or permitted is work time . . . in all such cases it is the duty of management to exercise its control to see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them . . . " 29 CFR §785.11-15; N.H. DOL Rules 803.05.
In K & K Auto Parts, the employer maintained that the claimant was a customer who was allowed to hang around the store and who occasionally helped out as a friend, but not as an employee. The claimant argued that although the employer originally did not hire him, the employer, as a favor, did agree to allow him to spend time at the store to learn the job. The claimant further asserted that after about a month he did learn the job and began to work for the employer waiting on customers, cleaning and making deliveries. This situation continued from approximately 1996 through 1999, when the claim was made. The employer, in response, asserted that at best, the claimant performed a maximum of 40 hours of work during the entire period he "hung around" the store.
The Department found that the employer did permit the claimant to work. Therefore, the claimant was entitled to wages for all hours worked, not barred by the statue of limitations. Not surprisingly, since the employer had not considered the claimant an "employee", the employer had no records of the hours the claimant had been "permitted" to "work." The Department noted that it is the employer's responsibility under RSA 279:27, to keep a true and accurate record of all hours worked. The Department found the claimant's testimony that he worked three to four days per week, four to six hours per day, credible. And, as a result, awarded the claimant wages for 3.5 days per week, five hours per day at the minimum wage rate.
Once again, the lesson of this case is, no good deed goes unpunished. Do not let individuals "hang around" performing incidental chores. Allowing such behavior subjects an employer to a claim for backwages. And, since the employer will not have considered the individual an employee, the employer probably will have little to no records to counter the amount of time the claimant alleges he worked.
Laclaire v. Kelly & Kittridge Auto Parts, Inc., Dec. N.H. DOL, Oct. 25, 1999. Karpinski v. A & K Engineering, Inc., Dec. N.H. DOL, Feb. 8, 2000.
Sex Discrimination
The 6th Cir. recently ruled that the termination of a pilot who had been on leave for 18 months and had not provided requested information about his work capacity did not violate the ADA. The court explained that an indefinite leave of absence is not a reasonable accommodation.
The U.S. District Court for the Eastern District of Pennsylvania has followed the lead of a number of other courts around the country and dismissed a sex discrimination action filed by a male optometrist who was fired for refusing to stop wearing an earring at work. The court recognized an employer's right to establish different grooming standards for men and women.
The 7th Cir. Court of Appeals dismissed a pregnancy discrimination claim based on a supervisor's statement that the plaintiff would be paid more if she would "stop having kids." The statement was made after the employee gave the ultimatum pay me more or I will quit. The employer responded by discharging the employee. The court reasoned that the employee's ultimatum was a legitimate non-discriminatory reason for her termination.
Copyright 2000. This article originally appeared in BIA Report, April 2000.
* Anne Scheer is admitted in New Hampshire.
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