Your business is in its busy season and you are already short on the number of employees you need to realize upcoming customer deadlines. You have two employees out of work on maternity leave. In an effort to meet customer demand, you inform your employees that you will not approve any vacations or time off from work in the next month. During this busy time, and the week before a major customer deadline, one of your most productive employees, who was the victim of an armed robbery at a local convenience store three months ago, comes to you and asks for time off from work so she can participate in the prosecution of the person charged with the robbery. What is an employer to do?
Under the new Crime Victim Leave Act (N.H. R.S.A. 275:61-65), victims of a crime now possess the right to leave work in order to participate in the prosecution of a criminal. Employers must allow an employee who is a victim of a felony or misdemeanor to leave work to attend court or other legal investigative proceedings associated with the prosecution of a crime. The Act prohibits an employer from discharging, threatening or otherwise discriminating against any employee because the employee has exercised this right. Nothing under prior law required employers to provide such leave from work. As a result, some expressed concern that employers could fire or terminate employee-victims who miss work to participate in the criminal process. The legislature viewed this new law as a means to protect crime victims and their families from losing their jobs for time off from work related to prosecuting criminals and to strengthen the state's ability to fight crime.
Under the Act, an employee who is a victim of a crime may leave work so that the employee may attend court or other legal or investigative proceedings associated with the prosecution of the crime. A victim of a crime is broadly defined to include any person who suffers direct or threatened physical, emotional, psychological or financial harm as a result of the commission or attempted commission of a felony or misdemeanor. A victim also includes the immediate family of any victim who is a minor or who is incompetent or the immediate family of a homicide victim. The immediate family of a homicide victim includes the father, mother, stepparent, child, stepchild, sibling, spouse, grandparent, or legal guardian of the victim or any person involved in an intimae relationship and residing in the same household with the victim.
The Act applies to employers with 25 or more employees. While those covered employers must allow the leave, employers are not required to compensate an employee who exercises rights under this law. The leave is unpaid. The Act, however, allows an employee who leaves work under this law to elect to use, or allows the employer to require the employee to use, accrued paid vacation time, personal leave time, or sick leave time.
An employer must not take any adverse action against an employee exercising rights under this law. In other words, an employer shall not discharge, threaten, or otherwise discriminate against any employee exercising rights under this law in terms of the employee's compensation, terms, conditions, location or privileges of employment. An employer also cannot cause an employee to lose seniority while absent from employment.
To be eligible for leave, the employee-victim must provide the employer with a copy of the notice of the scheduled hearing, conference, or meeting that is provided to the employee by the court or agency involved. Any written documents the employee submits to the employer associated with the leave request must be kept confidential. Only if the employee's leave creates an undue hardship to the employer's business may the employer limit the leave. Undue hardship is often a high burden to meet. The Act defines undue hardship to mean a significant difficulty and expense to a business and includes the consideration of the size of the business, the employee's position and role within the business and the employer's need for the employee. Any employer who violates this law could be subject to a civil penalty.
This new Act provides employees with another right to leave from work. Employers with 25 or more employees need to ensure their compliance with this law. Employers should develop policies and procedures relating to the leave permitted under the Act. Employers should train managers and supervisors regarding the rights allowed under the Act. Managers and supervisors should also be trained on the information that an employee must provide to the employer to obtain the leave. Measures to maintain the confidentiality of all documents and information contained in those documents submitted by an employee for the leave should be taken by the employer. For example, documents provided by the employee should be maintained separate from the employee's personnel file. Managers and supervisors should also be trained as to the confidentiality of the documents.
Employers should review their handbooks or policies and procedures to ensure that they are in compliance with federal and state laws as to leave and other areas of employment law. With the passing of this Act, now is the time to dust off those policies.
Jennifer Parent is a Director in the Litigation Department of McLane, Graf, Raulerson & Middleton. Jennifer can be reached at (603) 628-1360 or [email protected]. The McLane Law Firm is the largest full-service law firm in the State of New Hampshire, with offices in Concord, Manchester and Portsmouth.