BIA REPORT
Employment Law Update
State and federal developments of interest to New Hampshire employers
October 1999 issue:
By Andrea Johnstone and Anne Scheer*
State Record Keeping Regulations Clarified
Does your company keep records only of the total number of hours worked each day? If so, those records will not satisfy New Hampshire Department of Labor record keeping requirements. Time records must show the time the employee started and stopped working including any bonafide meal periods and must be kept for all employees regardless of whether they are paid on a salaried or hourly basis. The only exception to this requirement is for salaried exempt employees who meet the requirements for an exemption under 29 U.S.C. section 213 (a) of the Fair Labor Standards Act. Employers are reminded that all employees are presumed to be non-exempt and that it is the employer's burden to establish the elements of the tests to qualify for an exemption. Salaried employees (exempt employees.
The new regulations also contain provisions that address the use of automated timekeeping systems. Employers are prohibited from using automated time keeping devices or software programs that can be altered by an employer without the knowledge of the employee, or that do not clearly indicate that a change was made to the record. The Department of Labor interprets this regulation as requiring an employer to notify its workers about the features of the automated system (e.g. rounding, automatic meal period deductions, pre-programmed time in and out, etc.) and to provide a process by which modifications can be made to the automated record when it does not accurately reflect the hours worked on a given day (e.g. the employee worked through lunch, reported early, etc.).
Businesses are encouraged to review their current time keeping practices and procedures for compliance with the revised wage and hour regulations available from the New Hampshire Department of Labor and online at the DOL's website at nhsa.state.nh.us/dol.
Ambiguous Policy Results in Valid Wage Claim
Most employers are aware of the need to state in their written policies whether accrued unused vacation and other earned time days will be paid upon separation from employment. The NH DOL's Silva v. Sleepnet Corporation decision, demonstrates the need for these polices to be absolutely clear about when accrued earned time/vacation will and will not be paid, right down to specifying termination scenarios. In this case the company's policy made it clear that no vacation or sick pay would be paid upon resignation or termination. The claimant was laid off and argued that the policy was silent as to whether this time would be paid when an employee is laid off. The employer unsuccessfully maintained that "termination" covers employees who are laid off as well as fired for other reasons. The DOL concluded that the employer's policy was ambiguous because it did not specifically state what happens to an employee's vacation and sick pay when they are laid off. As a result, the employee was awarded over $2,000 in accrued unused paid time off on the theory that the employer failed to satisfy its obligations under RSA 275:49, III.
Deduction for Lost or Damaged Property Not Permitted
A common wage & hour violation involves withholding from an employee's pay the value of lost or damaged property. Even with written authorization, New Hampshire law does not permit making deductions from an employee's paycheck in these circumstances. In Matos v. Nation Wide Ladder and Equipment Company, the DOL ruled that the deductions of $178.46 from an employee's paycheck for the value of a lost ladder and $117.64 for lost boxes were illegal deductions. The Company defended its actions by relying on its policy that all drivers are fully responsible for the loads on their trucks. The Department of Labor did not find the issuance of such a policy persuasive and instead concluded that the deductions were illegal because "the deduction did not accrue to the benefit of the claimant."
The NLRB An Even Playing Field?
If you ever wondered whether employers have an even shot at the National Labor Relations Board ("NLRB") the following cases might give you pause. Prior to a union election most employers know that they must be very careful about what they say to employees. Does the NLRB apply the same scrutiny to a union's pre-election statements? You be the judge.
In TEG/LVI Environmental Securities Inc., the NLRB ruled that an election was not tainted despite the union telling the employees, most of whom were immigrants, that "the National Labor Relations Board of the United States Of America wants the workers of TEG/LVI to have a union." Do you suppose an employer could say the reverse? Perhaps the Union's statement was not a misrepresentation.
And, in TCI West, Inc. v. NLRB, a court held that the NLRB was wrong to rule that a ballot against the teamsters in a de-certification election was not a clear expression of the employees preference. Counting the ballot would have meant that the Teamsters lost. The ballot at issue, which instructed voters to mark an "X" in the square of your choice, clearly had an "X" in the No box. There was a single "\" line in the Yes box.
In Brief:
- A Washington Court Of Appeals found that a supervisor justifiably relied on employer's policies of providing a warning prior to discharge and the opportunity to transfer to avoid family "reporting relationships."
- The 7th Circuit recently ruled that the act of requesting a fitness for duty evaluation after the employee had been in a car accident was not evidence that the company perceived his as disabled.
- A company that failed to notify an employee placed on FMLA leave that the leave was limited to 12 weeks was not liable for a violation of the Act when it terminated the employee after more than 12 weeks had passed and the employee still was not released to return to work. The 2nd Cir. Court of Appeals concluded that the employer had discharged its FMLA obligations by notifying the employee that his leave had been designated as FMLA leave and by in fact providing the employee with 12 weeks of leave.
Copyright 1999. This article originally appeared in BIA Update, October 1999.
* Anne Scheer is admitted in New Hampshire.
Return to top of page
Return to Employment Law Articles
Return to Firm Publications
