EMPLOYMENT LAW

Employment Law Changes —
2007 Year in Review

December 2007

By Anne G. Scheer*
for New Hampshire Business Review

Over the last year, State and Federal legislators have enacted/amended several laws affecting the workplace. Similarly, courts and agencies have been busy considering laws affecting employers and employees.

Minimum Wage

As you probably know the minimum wage employees must be paid has been increased by both Federal and New Hampshire laws. An employer is required to pay employees whichever of these laws is a greater amount at any given time. As of 9/1/07 New Hampshire law provides the higher minimum at $6.50 per hour. On 7/24/08 the federal rate will be higher at $6.55 per hour but as of 9/1/08 New Hampshire law increases its minimum to $7.25 an hour. So, it is expected that most employers will make the change to $7.25 an hour as of 7/24/08 rather than making a change to $6.55 per hour in July and increasing it again on 9/1/08 to $7.25 an hour.

Employer Payment of Attorneys Fees in NHDOL Whistleblower and Wage/Hour Cases

The bad news: In a recent decision, Appeal of Alan Hardy, the New Hampshire's Supreme Court ruled that New Hampshire's Whistleblower Law gives the New Hampshire Department of Labor authority to order an employer to pay a complaining employee's attorney's fees and expenses if the employee wins a Whistleblower claim at a Department of Labor hearing. This is a significant change for employers in defending such claims. Since the New Hampshire Whistleblower Law was enacted, the NH Department of Labor had taken the position that it did not have authority to order an employer to pay a winning employee's attorney's fees or expenses. The possibility of having to pay an employee's attorney's fees and expenses greatly increases the cost/risk of losing a Whistleblower case for an employer, and as a result now gives significant leverage to an employee in these cases.

The good news: The New Hampshire Supreme Court based its decision on a phrase in New Hampshire's Whistleblower Law stating that the Department of Labor can award an employee "...any appropriate injunctive relief." The good news for employers is that New Hampshire's Wage / Hour laws do not contain such a broad grant of authority to the Department of Labor, and since the Hardy decision the NHDOL has continued to rule that it doesn't have authority to order an employer to pay an employee's attorney's fees or costs in a wage/hour case.

Forming Unions at Private Worksites

Last legislative session Congress in Washington considered the "Employee Free Choice Act." This legislation would have allowed a workplace to be unionized without a secret ballot election if the majority of workers sign cards authorizing union representation.

Currently, private employers are free to require that an election be held to ascertain the true desires of its employees as to whether or not they want to be represented by a union. Many employers require an election because they want their employees to be able to decide whether or not they want to be represented by a union after getting information from both the union and the employer and without the pressure of co-workers knowing how they vote. Employers realize that employees who do not actually want to be represented by a union when requested to sign a union authorization card by a co-worker or outside union organizer may do so even if it is not what they really want because they feel pressured to do so, are embarrassed to say no, or simply to get the person making the request to go away.

Perhaps even more significant this bill would have require employers and unions that are unable to reach a first contract in 90 days to refer their dispute to the Federal Mediation and Conciliation Service. And, if the FMCS could not bring the parties to agreement within 30 days, the dispute would be referred to binding arbitration. Having a private company's wages, hours, benefits, and all other working conditions dictated by an outside third party would be an incredible takeover of private companies in the United States.

The Employee Free Choice Act failed this session, but it supporters have vowed to bring it back another day.

Forming Unions at Public Workplaces

Unlike the Federal legislature, the New Hampshire legislature passed and on July 17, 2007 Governor Lynch signed into law legislation requiring public employers in New Hampshire, with 10 or more employees having a community of interest, recognize a union without an election if the union gets a majority of workers to sign union authorization cards.

Employees' Right to Discuss Terms and Conditions of Employment

In recent decisions courts have ruled against employers prohibiting employees from discussing with each other or people outside of work the terms and conditions of their employment such as their wages/salary. For example the United States Court of Appeals for the District of Columbia ruled that an employer's policy prohibiting employees from "fraternizing on duty or off duty, dating, or becoming overly friendly with clients, employees or with co-employees" violated the National Labor Relations Act ("NLRA"). The Court held that employees could reasonably interpret this rule as preventing them from talking about terms and conditions of employment with co-workers in violation of the NLRA.

Similarly, the D.C. Circuit Court ruled that an employer's Handbook policy regarding confidentiality, stating that "we recognize and protect the confidentiality of any information concerning the Company, its business plans, its partners [i.e. employees], new business efforts, customers, accounting and financial matters" violated the NLRA's protection of employees' right to form, join, or assist unions and to engage in concerted activities for their mutual aid and protection. The Court ruled that the fact that the employer had never enforced this rule was not relevant.

Employers are advised to review their employment policies to ensure that there is no restriction placed on an employee's rights to discuss terms and conditions of employment, including compensation, with co-workers. Policies that restrict such rights could result in unnecessary unfair labor practice charges being brought against a company and may be used by a labor organization as a weapon for union organizing or as a basis for overturning a union election that the union has lost.

Civil Unions

New Hampshire law now permits same gender couples to enter into civil unions and have the same, rights, responsibilities and obligations as married couples. However, Federal ERISA and the Defense of Marriage Act prohibit the recognition of civil unions or same-sex marriage. Employers need to look at the applicable law for every benefit they offer to married spouses to determine whether they are required, prohibited or allowed to offer the same benefit to civil union partners.

Required Forms/Posters

• I-9 forms have been changed for the 1st time in 16 years. All employers regardless of size or number of employees must complete this form for every new hire.
• The IRS has released its 2008 version of its mandatory W-4 forms.
• Federal and State Updated Minimum Wage Posters must be displayed.

* Anne Scheer is admitted in New Hampshire and Massachusetts.

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