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Five Employment Law Topics on the Radar in 2015

Written by: Nicholas F. Casolaro

Published in New Hampshire Business Review

State changes include Paycheck Fairness Acsst and Employee Social Media Accounts.


Question:

Last year proved to be a busy one for employment-related legal issues, and many changes or developments in the law will either take effect in 2015 or signal an enhanced focus on a particular subject for 2015.

1.  New Hampshire’s Paycheck Fairness Act:  New laws relating to pay equality went into effect on January 1, 2015.  One reaffirms the requirement that employers pay employees of one sex the same as employees of another sex for equal work. Employers can vary employees’ pay rates for equal work if the decision is based on a seniority system, a merit or performance-based system, a system which measures earnings by quantity or quality of protection (based on the employees’ expertise, differentials in their shifts, or factors such as education, training, or experience.)

The new law also requires employers to prominently display a poster about the pay equality law in the workplace, a copy of which is available for download at www.nh.gov/labor. Under the updated statute, employers are also prohibited from discharging, disciplining, retaliating, or otherwise discriminating against an employee because they disclosed the amount of their wages, salaries, or paid benefits or files a complaint about pay discrimination.
2.  Employee Social Media Account Information: Under a new law that became effective late in 2014, New Hampshire employers are prohibited from requiring employees or applicants to disclose their login information for “personal accounts.” Including any social media accounts or services that the employee uses primarily for personal reasons. Employers likewise cannot request to be added as “friends” or contacts of the employee as a way to gain access to the accounts and cannot require the employee to ease the security settings on their accounts.

But the law does not restrict the employer’s ability to access social media account information that is in the public domain. Another issue of note is where an employee’s LinkedIn or Twitter account will fall in the definition of personal account, when those services are often used for business purposes.

3.  New Minimum Wage for Federal Contractors: Employees performing work on federal contracts must be paid a higher minimum wage of $10.10 per hour starting in 2015. The new wage applies to all new contracts entered into after January 1, 2015 or renewals of prior contracts where the negotiation of the renewal takes place after January 1, 2015.

The law also requires employers to include a clause in their contracts with the federal government that as a condition of payment, the minimum wage to be paid to workers performing on or in connection with the contract or any subcontract thereunder, must be at least $10.10 in 2015 and may increase in 2016.
And while employees may spend part of their week working on a non-federal job and other parts working on the federal contract, they must be paid the higher minimum wage for the time spent working on the federal contract.

4.  Federal Discrimination Law: In late December 2014, Attorney General Eric Holder issued a memorandum announcing that the Obama administration would now take the position in litigation that discrimination based on transgender status or gender identity was actionable under Title VII of the Civil Rights Act. The government’s position will not apply to private employers, but it is important to all employers because it reflects a trend in increasing workplace protections for transgender workers. While transgender status or gender identity are not included in the New Hampshire anti-discrimination statute, Massachusetts law prohibits discrimination on the basis of “gender identity.”

Bill reminds Marie that the company has some employees in Massachusetts, where transgender is a protected classification, and suggests to Marie that the company consider extending such protections to all company employees through its internal anti-discrimination policy.

5.  Pregnancy Discrimination:  In 2014, the United States Equal Employment Opportunity Commission issued enforcement guidance on pregnancy discrimination for the first time since 1983. One issue of note is the EEOC’s position that the Pregnancy Discrimination Act (“PDA”) requires employers to provide reasonable accommodations to employees who have work restrictions because of pregnancy, even if the employee does not qualify as disabled or is not regarded as disabled under the Americans with Disabilities Act. This issue is the subject of a case currently before the United States Supreme Court, with a ruling expected in 2015.  If the Court adopts the EEOC’s interpretation of the PDA, it could require employers to make substantial changes to their policies.

The guidance is also noteworthy because combatting pregnancy discrimination is part of the EEOC’s strategic enforcement plan for 2015-2016.

Nicholas Casolaro is an associate at the McLane Law Firm. He can be reached at (603) 628-1246 or at nicholas.casolaro@mclane.com.

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