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Manchester Area Human Resources Association. January 6, 2009. Annual Legal (Employment Law) Update. with Attorney Jim Reidy Sheehan Phinney Bass + Green. P.A. This is an annual update. This is where we review new laws and regulations, and interesting court cases from the last year.

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Presentation Transcript


Attorney Jim Reidy

Sheehan Phinney Bass + Green. P.A.


This is where we review new laws and regulations, and interesting court cases from the last year.


Wow! Lots out there. Ever get a little foggy about what workplace laws require and that the courts have said?


Said another way, there are HR truths and HR myths. You know, the stuff we’ve heard for years about workplace laws or rights, but we’re not sure it’s true or accurate.


And we have all dealt with those employees who say things like….

“Hey, you can’t do that! It’s against the law.”


“Who wants to avoid a million dollar lawsuit.”

  • “HR Hollywood Snares.”
  • “HR in Jeopardy.”
  • “HR Family Feud.”
  • “Let’s take an Appeal.”
  • “HR Trivial Dispute”
  • “Law in Order”
  • “Employment Dispute: Deal or No Deal”
  • and last year’s program…
  • …“Are you Smarter than the Investigator?”

Right, we parody game shows and reality series to help educate our audience about trends and requirements in workplace laws.


This year is no different.

To dispel common HR myths and provide you with clarity and information to bring back to your workplace…


You know the T.V. show where two scientists test urban myths (while blowing up toilets, cell phones and small cars?) Pretty cool huh?


Well, in our presentation we take on sex harassment, wage and hour issues, workplace safety, the FMLA, the ADA, pregnancy leave, benefit policies, terminations and other workplace issues.


Don’t worry, no small animals, household appliances, or polar ice caps have been harmed in the creation of this presentation.


We then give him/her three possible answers.

Two are incorrect or myths.

One is the right answer.



Let’s play HR Myth Busters!


HR Myth #1

An employee must agree with information contained in a document before it can be placed in his/her personnel file.


Possible answers….

  • Absolutely!
  • Not so, you can put whatever you want in a personnel file and the employee doesn’t get to see it.
  • No, but it is a good practice to allow employees to see what is going in their file and state law allows then to offer rebuttals when appropriate.

C. Fairness and good performance management practices suggest that employees at least know what is in their file. State law permits employee to submit corrections or rebuttals but not approvals over content or a veto power.


HR Myth #2

Job descriptions really only need to be updated if there is a dispute, misunderstanding, or job responsibility change. Creating one now reduces management flexibility.


Possible answers….

  • “Amen, I am so tired of being told we need to do these things.” The statement: “Because I said so”, should be enough.
  • “If we are doing job descriptions, can we start with mine? I’m really not sure from day to day what I am supposed to do around here.”
  • Nope, you need written job descriptions now to avoid misunderstandings and soon, under the amended ADA, they will be more important than ever when documenting essential job functions.

C. You need simple/concise descriptions of what the job requires and how it is to be performed. These should be updated as the job/requirements change in meaningful ways.


HR Myth #3

An employer can decide whether or not to report a workplace illness or injury.


Possible answers….

  • Nope, state law requires employers to report all workplace accidents or injuries.
  • Right, this is a privacy issue. It also involves individual rights. You can’t force an employee to report an injury or go through the workers’ compensation system.
  • Employers must report all workplace injuries where first aid is required or medical treatments exceed $750, regardless of employee cooperation, but you can still seek/insist upon the employee’s cooperation.

C. There is a reporting threshold for workers’ compensation claims, but that is surpassed in most cases.


HR Myth #4

Supervisors can search an employee’s work computer even without his/her consent.


Possible answers….

  • “Yes! I’ve been doing this for months. I knew I was right. Yes! Consent? No, we don’t need no stinking consent.”
  • Workplace computer use may be monitored and while notice is required, a signed receipt of the handbook, which contains the computer monitoring policy, may be sufficient. Supervisors, however, should not do this on their own.
  • Supervisors may monitor computer use but consent in advance is required, each time.

B. Notice can be deemed from receipt of the policy. Monitoring should be done. IT and management should also be involved.


HR Myth #5

If you don’t do a background check when you hire an employee, you can’t do one later and then terminate his/her employment if you are not happy with the results.


Possible answers….

  • While the best practice is to do a thorough background check as a condition of the initial employment, if you discover inaccuracies or disturbing information later, that can be a reason for dismissal.
  • Right, time is of the essence. If you don’t do a reference or background check when the person is hired you can’t do one later.
  • “What? I can fire anyone, anytime I want. This is still the Live Free or Die ‘at-will’ state, right?”

A. It is better to do the checks up front, but resume/application fraud can be a reason to later terminate employment.


HR Myth #6

Sexual harassment requires that the victim speak up, at the time of the alleged offense, and alert others that he/she objects to the conduct or behavior.


Possible answers….

  • Yes, otherwise, how could we possibly know?
  • Yes, while an individual may be liable for bad conduct, the employer isn’t liable until the employee complains to management.
  • Nope, if the employer knows (hears, sees, suspects) the conducts is going on and it is offensive to a reasonable person, they MUST act.

C. Employers could be liable once they know or should have known about objectionable behavior at work.


HR Myth #7

If an employee is out of work because of a personal illness, he/she has to request Family and Medical Leave (FMLA) in order to get those benefits.


Possible answers….

  • No, if you have reason to believe they might qualify for FMLA, the employer can check information and designate the leave even if the employee doesn’t request FMLA leave.
  • “Hey, it’s in the friggin’ handbook! Do I have to do everything around here?”
  • No, each employee gets to elect whatever leave policy they (their doctor and perhaps their spiritual advisor) deem appropriate.

A. Employer get to designate FMLA leave, if they think an employee qualifies and it can be concurrent with other forms of leave.


HR Myth #8

Performance evaluations are required by law and must be conducted annually.


Possible answers….

  • Yes, it’s in the Bill of Rights or somewhere in state law.
  • No, but it is a sound practice to do regular performance evaluations.
  • No, again, this is still New Hampshire, if we wanted more restrictions and silly regulations we would move all operations to Massachusetts.

B. Regular performance evaluations can keep employees on track and provide an accurate record of the employee’s work history.


HR Myth #9

Compensatory time off for private sector employees is an acceptable alternative to OT pay.


Possible answers…

  • Not under the FLSA and it violates state law, too.
  • “Oh crap, can I borrow your cell phone?! I have to call someone in Payroll. I hope they aren’t taking their Comp day today”
  • Sure, if done right and taken within a reasonable period of time.

HR Myth # 10

You have up to 3 days after you hire an employee to collect I-9 support documents from that person.


Possible answers…

  • Yes, and weekends or holidays extend that deadline.
  • Only if the person provides proof of application for the documents.
  • I don’t care, the I-9 laws don’t apply to workplaces like ours.

HR Myth #11

Independent contractors in New Hampshire need to satisfy at least one of the following tests to be properly classified. The unemployment ABC test, the wage and hour 12 point test or the Human Rights Commission “Right to Control” test.


Possible answers…

  • Yes and have them sign an agreement to that effect.
  • Yes, I too am an independent contractor and that sounds right to me.
  • Actually, to be safe, they should satisfy all of these tests and, even then, the IRS may still have questions.

C. Actually, to be safe, they should satisfy all of these tests and, even then, the IRS may still have questions.


HR Myth #12

When you hire a new employee, you must provide him/her with information about his/her pay rate, pay day, pay period and nothing else.


Possible answers…

  • “But that’s a contract and we don’t do no stinkin’ contracts.”
  • Nope, you also need to notify him/her in writing of any changes in advance.
  • “Yes, and we will get on that this afternoon.”

HR Myth #13

An employee in a private sector company is free to criticize his/her boss (as long as the information is true) because that is protected as free speech.


Possible answers…

  • “Excellent! Can I borrow that cell phone again?”
  • Only if that company is unionized.
  • Nope, not yet. The boss is still the master of his/her domain.

HR Myth #14

If a disabled employee can take medication to reduce the limitations caused by an impairment, the employer doesn’t have to engage in reasonable accommodation discussions because the employee isn’t disabled within the meaning of the ADA.


Possible answers…

  • Nope, the law has changed.
  • The ADA? How are dentists involved?
  • Yes, if the medication works the person may not be protected by the ADA.

HR Myth #15

If your company has fewer than 100 employees before a layoff, you have no WARN or other notice obligations to the affected employees or others.


Possible answers…

  • Yes, unless a union is involved.
  • Right, except the notices regarding COBRA and other conversion rights.
  • No, if the layoff involves 25 or more employees you have to notify Employment Security, too.

HR Myth #16

Employees get 26 weeks of FMLA time, if they are caring for an injured family service member.


Possible answers…

  • If they are otherwise eligible for FMLA leave and only once in a 12-month period.
  • Yes, and this continues for each year the person needs care.
  • Not if we reinstated the person after he/she was released to return to work.

A. Yes, if they are otherwise eligible for FMLA leave but this is only once in a 12-month period.


HR Myth #17

USSERA rights only apply to troops called into service and even then, the reinstatement rights lapse after five years.


Possible answers…

  • Right, and this includes National Guard troops too.
  • There is no limit on reinstatement rights in some situations.
  • That’s only in time of declared war.

B. There is no limit on reinstatement rights in situations, e.g., as long as the person remains on active duty.


HR Myth #18

Maternity leave rights end when the doctor says the employee can return to work.


Possible answers are…

  • Right, and the company allows the person to return to her job.
  • No, the woman can stay out of work until she is ready to return as long as that is a reasonable period.
  • Right, a doctor’s note or 12 weeks, which ever is greater.

HR Myth #19

During a job fair interview, it is illegal to ask and applicant:

“What year did you graduate from high school?”


Possible answers are…

  • Yes, that would be age discrimination.
  • That would be age and educational discrimination.
  • No, you can ask that if you have a business reason for asking.

HR Myth #20

If you do pre-employment medical exams, they have to be after a bonafide offer is extended and they must be specific to the job.


Possible answers are…

  • Yes, post-offer but they can be general fitness exams.
  • Right, post-offer and job specific.
  • Why would we do any of that? (We size ‘em up long before we get to that point).

Yes, post-offer but they can be general fitness exams. (But it is still better to focus on what the job requires.)


HR Myth #21

It is legal to use GPS devices to track the whereabouts of your employees?


Possible answers are…

  • Not in California, Nevada or Massachusetts and elsewhere not without consent.
  • Yes, and you can use it to correct time cards.
  • Sure, during work hours, but you should have a good reason for that surveillance.

HR Myth #22

If you make a mistake in your employee handbook and include a policy (e.g. FMLA) that doesn’t apply to your company, employees can still claim it as a benefit.


Possible answers are…

  • Nope, the disclaimer in the handbook defeats their claims.
  • Right, some courts say you’d be stuck with the policy.
  • “This is why you should get rid of your handbook.”

HR Myth #23

Men can claim maternity leave rights now, too!


Possible answers are…

  • Only in Massachusetts.
  • Only under FMLA.
  • Only in the National Enquirer.

HR Myth #24

It is illegal to discriminate on employment or in healthcare based on a person’s genetic information (including genetic information of a family member).


Possible answers are…

  • Yes, but only in employment and not yet in health care plans.
  • “Yes, and did you know baldness actually comes from the mother’s side of the family?”
  • Yes, and this law includes youth employment protections, too.

HR Myth #25

Employers who are open for business on Friday nights, Saturdays and Sundays must permit time off for all employees who ask for at least a few hours off for religious observances.


Possible answers are…

  • Yes, because Hell is no place for an HR professional.
  • No, not if they knew we required weekend work when we hired them.
  • Only if the employer can do so without a hardship.

HR Myth #26

If an employer’s bank charges payroll check cashing fees to employees who don’t have accounts at that bank, as a matter of law, the employer must move its business elsewhere.


Possible answers are…

  • “Yes, Cindy Flynn told us so.”
  • “Yes, this is a violation of state and federal banking laws too.”
  • No, but if they stay with that bank, the employer could be liable for wage adjustments and civil penalties.

C. No, but if they stay with that bank the employer could be liable for wage adjustments and civil penalties.


HR Myth #27

Non-competition clauses are not enforceable in California, but they are still enforceable in New Hampshire.


Possible answers are…

  • Right, but they are increasingly disfavored by the courts.
  • “Amen. This is still the Live Free of Die state and we get to keep people from working for our competitors.”
  • Nope, they have gone the way of the Spotted Owl and the Snail Darter.

HR Myth #28

Under the FMLA, medical certifications need to be returned to the company before the leave begins.


Possible answers are…

A. Not always, especially when the need for the leave is unforeseen.

B. Yes or how will you know if the employee is eligible for the leave?

C. What certification?


HR Myth #29

We can have a policy prohibiting employees from handing out union authorization cards in work areas at all times.


Possible answers are…

A. Yes, policy can prohibit distribution of literature in all work areas at all times.

B. Who cares? We’ll never be unionized.

C. No, these cards are considered the same as conversation and can be prohibited from work areas only on work time.


C. No, these cards are considered the same as conversation and can be prohibited from work areas only on work time.


HR Myth #30

If we suspect an employee is under the influence of drugs or alcohol, we have to test them and provide copies of the results before terminating their employment.


Possible answers are…

  • Yes, and HIPAA says the results are otherwise confidential.
  • “What are you friggin’ crazy? We can fire him/her for that with no test faster than you can say “TAXI!”
  • If this is a DOT covered employee you may have to test. Otherwise you have no obligation to test. You can fire the employee based upon your suspicion (hopefully based on something you can substantiate--e.g. slurred speech, smell of alcohol, parking a car in the lobby, lampshade on head etc) and keep the Doritos.

C. If this is a DOT covered employee you may have to test. Otherwise you have no obligation to test. You can fire the employee based upon your suspicion (hopefully based on something you can substantiate--e.g. slurred speech, smell of alcohol, parking a car in the lobby, lampshade on head etc) and keep the Doritos.