BREAKS FOR NURSING MOTHERS

Many of the provisions of the health care reform legislation do not take effect for years to come, but a new breastfeeding break requirement took effect on March 23, 2010 with very little media attention. Employers now are required to provide reasonable break times for female employees for lactation purposes for one year after the child's birth. Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother, but an employer is not required to compensate an employee for this break unless the employer already provides compensated breaks and the employee uses that time for nursing. Employers must provide a location for breastfeeding, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the pubic. Employers with fewer than 50 employees are not subject to the break time requirement if compliance would impose an undue hardship, determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer's business.


-Submitted By Meredith Cook, Esq.
603-629-4511
mcook@wiggin-nourie.com

Get Your Mandatory DOL Posters – for free!

For Employers – Remember, you are required to conspicuously post various Department of Labor notices. The Department has recently sent out reminders that those mandatory posters are available, for free. Go to:

http://www.labor.state.nh.us/mandatory_posters.asp for further details.

-Submitted By Christopher Pyles, Esq.
603-629-4725
cpyles@wiggin-nourie.com

Employee Theft and Unemployment Benefits

An employer may terminate an employee for stealing, and the employee cannot collect unemployment benefits. Accordingly, the employer does not suffer any adverse impact on its unemployment tax rate. However, a recently passed law now allows employees who steal less than $500 from a previous employer to collect benefits, if they are laid off from their next job, and credits the employee for the time they worked at their previous job even though they were fired for stealing. According to a very helpful article in the New Hampshire Business Review for the week of August 27, 2010, the new law clarifies the term “gross misconduct” by removing the word “dishonesty” and replacing it with “theft of an amount greater than $500.” The NHBR article, written by Bob Sanders, provides a complete analysis of the change, and some interesting statistics on gross misconduct in the workplace.

-Submitted By Christopher Pyles, Employment Attorney
603-629-4725
cpyles@wiggin-nourie.com

Bullying in the Workplace

Over the last several months, school bullying has received increasing attention. From the cases of Phoebe Prince and Carl Walker-Hoover in Massachusetts, to the New Hampshire case involving older children bullying a younger child to get a tattoo, the heightened concern over school bullying has led to legislation. Several months ago, Governor Lynch signed a Bill into law that revised the People’s Safety and Violence Prevention Act, to protect children from physical, emotional and psychological violence caused by bullying and cyber-bullying.

New Hampshire, New York, and at least fourteen other states have explored expanding anti-bullying legislation from the school to the workplace. New Hampshire’s proposal was tabled without further action in February 2010, and none of the other states have passed their bills into law. The growing legislative interest in prohibiting workplace conduct that may be insulting, threatening, intimidating, or humiliating is worth tracking. Legislative materials filed in New York suggest that bullying claims are four times more prevalent than sexual harassment claims, so the passage of any workplace bullying law could very likely lead to an increase in claims. While every employer should take reasonable precautions to make sure that employees act professionally, the potential for anti-bullying laws impacting the workplace is a possible expansion in law that bears monitoring.

-By Christopher Pyles, Employment Attorney
603-629-4725
cpyles@wiggin-nourie.com

H-1B VISAS FOR SPECIALTY WORKERS AND PROFESSIONALS STILL AVAILABLE TO U.S. BUSINESSES

The recent sluggishness of the U.S. economy has had a positive impact in immigration law. Many of our nation’s best and brightest are foreign-born professionals and entrepreneurs. They come to the United States seeking education in our world-class higher educational system or seeking to invest and participate in our economy. Many of these foreign-born graduates, professionals, and investors participate in the H-1B visa program - to the benefit of our nation’s businesses, nonprofits, educational institutions, and even our government.

The H-1B visa is available to U.S. businesses and other institutions seeking to employ foreign workers in specialty occupations requiring expertise in specialized fields. These occupations include executives, accountants, engineers, scientists, doctors, computer programmers, and others requiring a bachelor’s degree or higher or equivalent experience. Participation in the H-1B visa program is accomplished through the filing of an H-1B petition with U.S. Citizenship and Immigration Services (USCIS), the Department of Homeland Security component administering the program.

At the beginning of every fiscal year, October 1, an allotment of 65,000 visas is made available to the program (the Regular Cap). An additional 20,000 visas are also made available each fiscal year to H-1B petitioners hiring foreign workers who possess a master’s degree or higher from a U.S. institution of higher education (U.S. Master’s Cap). Finally, a maximum of 6,800 visas are deducted from the 65,000 visa allotment and made available exclusively to U.S. petitioners seeking to higher Chile and Singapore nationals who are eligible for H-1B1 visas under the terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Petitions filed in the H-1B visa program can be filed six (6) months ahead of the beginning of the fiscal year or on April 1. Petitions filed after the cap is reached are rejected for that fiscal year.

Historically, the H-1B visa program is a competitive visa classification. Over the past decade the H-1B cap has been reached almost every year on the first days visas are available - or on April 1 for an October 1 start date. In the past USCIS used a lottery system to select which petitions where accepted under the caps. This system was costly and unpredictable. U.S. businesses that undertook the expenses of preparing petitions under the H-1B visa program stood to lose their investment, and the future productivity of this worker, due to simple chance.

The recession and economic contraction of the past year or so has lessened demand for these visas. Last year, the H-1B cap was not reached for fiscal year 2010 until December 22, 2009 - almost three (3) months after the beginning of fiscal year 2010.

This year, fiscal year 2011, USCIS has received 26,000 H-1B petitions under Regular Cap and 11,300 H-1B petitions under the U.S. Master’s Cap as of July 23, 2010. This leaves approximately 46,700 H-1B visas available to H-1B petitioners seeking to hire foreign workers for an October 1 start-date. The availability of these visas for the foreseeable future allows U.S. businesses, nonprofits, and other institutions to benefit from the productivity, drive and ingenuity many foreign professionals, and graduates of U.S. universities, possess and contribute to their employers. U.S. businesses can plan their hiring carefully without fear of losing their potential hire to a roll of the dice.

If you or your business has been waiting to participate in the H-1B program, now is the time. If you would like additional information regarding participation in the H-1B program or to schedule a meeting, please contact the Wiggin & Nourie, PA Immigration Department.

Lesser-Known Aspects of Health Care Reform

With a law spanning thousands of pages, it is no surprise there are components to health care reform receiving little attention. Here are a few:

* Small businesses with fewer than 25 full-time employees may be eligible for tax credits to purchase health insurance for their employees if the employer's workers have average wages of less than $50,000.

* Beginning January 1, 2011, nonprescription drugs cannot be reimbursed tax-free through a health savings account (HSA) for flexible spending account (FSA).

* Employers must provide an unpaid breastfeeding break for nursing mothers. Employers with 50 or more employees must provide a nursing location other than a bathroom that is shielded from view and free from intrusion by co-workers and the public.

* Employers will be able to offer employees rewards of up to 30% of the value of coverage for participating in wellness programs and meeting certain health-related standards, but this provision will not become effective until 2014.

* Effective January 1, 2011, employers must report the value of employer-provided health coverage on each employee's W-2 form.

What Employers Can Learn from the Boston Red Sox

Much has been written about the steps the Red Sox have taken to make the team successful. A few of the decisions could be implemented by employers with something less than a $143 million payroll.

The Red Sox identified minor league players the team expected to move up during the season and provided them with an orientation program to address everything from media relations to tipping of club house attendants. The same could be applied outside the baseball world by identifying employees with potential and then providing them with early tools to help them in the next level of their careers.

Curt Schilling could earn $2 million in bonuses if he meets certain weight goals. Although this is an extreme measure, many employers are seeing the benefits of employee wellness programs. Employer programs on weight loss, smoking cessation, and similar health topics can encourage a healthier workforce with the potential for fewer sick days and lower insurance costs (and a quicker fast ball).

The Red Sox have seen the value in their “older” players such as Tim Wakefield and Schilling and have entertained new ways to play to their strengths (such as a six-man rotation). With baby boomers approaching retirement age, critical skills will be leaving the workforce. Forward-thinking employers are looking for creative ways to retain older employees and/or train younger workers to be ready to fill the shoes of retiring workers.

Enjoy the off-season and remember . . . spring training games will begin in less than three months.

“Every Breath You Take . . . I’ll Be Watching You”

I recently attended a session on privacy in the workplace at the American Bar Association Labor and Employment Conference. Up until now, much of the talk has focused on email, and the trend in the courts has been to find that employees do not have a reasonable expectation of privacy in the use of workplace computers if the employer has distributed a policy reaffirming its right to inspect its own equipment.

Besides email, there are many other forms of technology that allow employers to watch what their employees are doing. One panelist showed us a radio-frequency identification (RFID) device that a hospital requires its employees to wear in order to track where they are while they are working in an effort to improve patient care. For example, if a patient complains that she has not seen a nurse for 24 hours, hospital administration can track the room history to see if anyone did visit the room during that period of time. Other employers have started using GPS devices to track the location of employees.

This scene easily could be set to the tune of The Police’s stalker song, “Every breath you take, every move you make . . . I’ll be watching you.” Although these devices have the potential to improve efficiency and the delivery of services, they also run the risk of invading employee privacy and deflating employee morale. Prior to implementing a surveillance or searching program, employers should:

1) articulate a legitimate business reason for the surveillance program,
2) use the most narrow surveillance program possible to meet the business need,
3) avoid systems that track employees when they are not working,
4) distribute a policy explaining the type of searching or surveillance utilized, and
5) consult with an attorney for advice specific to the particular program.