It's important to see a doctor right away after you've been involved in a car accident even if you think you didn't sustain any injuries.
As one employer recently found out, neither "primary" nor "secondary" employers may retaliate or discriminate based on FMLA protected conduct in a joint employment setting.
A recent fourth U. S. Circuit Court of Appeals decision addressing primary and secondary employer responsibilities under the Family and Medical Leave Act (FMLA) brings into question: Who's really responsible for the proper implementation of these important employee rights in the setting of joint employment?
In the case of Quintana v. City of Alexandria, No. 16-1630 (4th Cir., June 6, 2017), The fourth US Circuit Court of Appeals reversed the lower court's decision on summary judgement and found that the plaintiff, had provided strong evidence that the city of Alexandria, Virginia was her primary employer despite the fact that it had engaged a third-party administrator and staffing company to administer the payroll for her position.
Facts of the Case
With summer here and school out, more and more of us are on the move in cars with kids in tow.
As our little ones travel back-and-forth between daycare, camp, the beach and play dates, they'll also find themselves riding in other people's cars. According to the Center for Disease Control, 150 children between ages 0 and 19 are being treated in emergency departments across the country for injuries sustained in motor vehicle crashes every hour. With this in mind, it's important that we do everything we can to keep our children safe from road traffic injuries. Thankfully, there are small steps we can take which have a huge impact in securing that our children will get from place to place safely this summer. One of most obvious places to start is with our childrens’ car seats.
We all know it's important that we make sure our children are properly buckled up in a car seat. However, it can be a challenge to install a car seat correctly and even more of a struggle sometimes to wrangle wiggly kids into their restraints. As a result, friends or caregivers who are tasked with transportation this summer but who aren't as familiar with your car seat, might have a hard time tucking your children in safely.
Worker’s compensation benefits include:Wage replacement benefitsPayment for medical bills Job protections Payments for permanent injuries
In addition, some cases end up settling for what is called a lump sum settlement. This is only entered into when both sides agree and it usually involves a final payment with an agreement to end the right to many of the benefits.
The process for making a claim begins when the employee files a first report of injury to give notice to their employer of the fact that an injury took place at work. This notice then triggers a claim being filed with the Worker's Compensation insurance company who will then review the claim and make a determination as to whether they will cover the claim or not.
Employees who fail to complete a notice of injury or fail to also file a workers' compensation claim within the appropriate time limits might lose out completely in their benefits if they are not careful.
Here is what you need to know about filing a notice, claim and appeal if you get hurt at work:
Notice of injury.
Claims for workers' compensation injuries begin with something called a "notice of injury."
Social Security Retirement benefits and Social Security Disability benefits are two different benefits administered through the Social Security Administration. Retirement benefits are paid to individuals upon reaching a certain age, while disability benefits may be paid at any age and are based on a finding of disability.
To receive retirement benefits, workers must be at least 62 years of age, but 62 is considered early retirement by current standards. Therefore, in order to receive the maximum available benefit, a worker must retire on or after full retirement age. Retiring before that date results in lower monthly benefits for the rest of your life. The other disadvantage to taking early retirement is that medicare eligibility for retired workers does not begin until age 65.
By comparison, disability benefits through Social Security can be attained regardless of age. The qualifying criteria is disability and therefore benefits are not reduced for age. Moreover, disabled individuals are eligible for medicare after 24 months from the their date of eligibility for benefits. The disadvantage to disability retirement is that it can take a year or more to get a determination of eligibility and as you wait, you cannot be working. This can be an untenable hardship for many people who cannot live without these benefits. As a result, some people opt to take early retirement when they might actually be eligible for disability retirement. A combination of these two benefits is possible.
While you cannot receive retirement and disability social security benefits at the same time, there is an exception. Individuals who take early retirement, but who are also disabled can piggyback these two benefits to avoid a gap in payment while waiting for approval. Here’s how it works. If you must stop working due to health problems, you can elect early retirement AND apply for disability at the same time. You can start to collect the early retirement benefits while you wait to hear about your application for disability. There is never any guaranty, but if you are found to be disabled, you will then receive retroactive payment for the difference between your reduced early retirement rate and your full disability rate. In addition, you will begin getting your full rate of benefits and keep getting them going forward. You will also qualify for Medicare coverage after 24 months. Of course, if are not found to be disabled or if you were collecting early retirement before SS says you were disabled, then social security will not pay you the difference and you would be paid at your early retirement rate for the rest of your life. For someone who was going to take early retirement regardless, the risk is limited; nothing ventured nothing gained.
This strategy is not for everyone, but for someone who is severely disabled, over the age of 62, but not yet at full retirement age, this could be a valuable strategy to maximize benefits.
There are all sorts of free information resources available for employees facing time out of work, particularly for disability related to an accident or serious injury. You just need to know where to look... Here are my top tips for FREE information regarding compensation and job protection for serious injuries, illness or disability:
1) Take advantage of the many offers by employment law firms to provide free phone consultations. At Rice Law Office, PLLC, we provide free phone case evaluations for injured or disabled workers who think they may have been unfairly denied compensation or job protection as a result of a serious injury, an illness or work accident. In addition, there are many good firms across the state of New Hampshire that would be happy to answer employees' questions regarding cases involving Worker's Compensation, disability leave, or Social Security benefits. 2) Search the internet to uncover an amazing amount of FREE information. It takes little more than a few tries at a search term to uncover reams of helpful articles on many topics, many of which are written by top legal professionals. Of course, you may have to wade through several ads for law firms and some junk, but good information is there. 3) Review information on government agency websites. State and federal agencies offer tips, access to laws and regulations, and answers to frequently asked questions on their websites. Here are a few of my favorites:
For employees with a work injury- visit the New Hampshire Department of Labor website at https://www.nh.gov/labor/ For state employees facing disability leave, accidental injury or retirement, visit the New Hampshire Retirement System homepage at https://www.nhrs.org/ For those who have been laid off or fired, the Department of Employment Security at http://www.nhes.nh.gov/ , or the Department of Labor website (same one as above) can be helpful regarding eligibility for unemployment benefits or wage claims (DOL). If the disability or injury is so serious that it looks like you'll be out of work for 12 months or more, it's worth considering an application for Social Security disability. The SSA website is chock full of information, but beware there are lots of websites with addresses close to the official one trolling for your business, so be sure to use the correct address: https://www.ssa.gov/ Of course, there's also the federal Department of Labor website at https://www.dol.gov/, which can be helpful, but which won't necessarily give you the information you need specific to New Hampshire employee rights. Last but not least, are the websites for the New Hampshire Commission for Human Rights at https://www.nh.gov/hrc/ and the US Equal Employment Opportunity Commission at https://www.eeoc.gov/ . These websites provide information regarding disability discrimination and employee rights under the law.
House bill 628, which sought to establish a state administered paid leave insurance program, died in committee this past month. The decision issued in February will send the bill to a subcommittee to study over the summer before the full committee will take it up once again in November 2017.
The bill as proposed would have created an insurance pool into which participating employees would contribute a percentage of their paychecks, thereby establishing a fund from which eligible employees could then claim back a portion of their weekly wage. The provision would have allowed for up to 12 weeks of family leave.
Governor Chris Sununu had articulated his support for paid family leave during his run for the State’s top office this past year. Unfortunately, there was no mention of funding for a family medical leave insurance program in Sununu's inaugural budget speech of February 2017. With the house bill on hold and no money in the budget, it looks like paid family leave has been put on the back burner for now. However, there are still significant protections available for Granite Staters who need time off from work for their own serious medical conditions, disability, pregnancy, or to care for a child or family member.
Understanding the Family Medical Leave Act For starters, the Family Medical Leave Act of 1993 (known as FMLA) provides eligible employees with the right to take up to 12 weeks off from work for their own serious health condition or to care for a new child or seriously ill relative. Under FMLA, workers can also take leave to prepare for family members’ military service. Even more leave is available for employees who need to care for a family member who is seriously injured in active military duty. This is an incredibly important benefit for eligible employees, but there are very significant limitations to this federal law. These limitations have led state legislators across the country to seek expanded protection under the FMLA through local legislation. While the Family Medical Leave Act provides job protection for up to 12 weeks of leave from work, it does not provide pay during that period of time. Furthermore, not all employees are eligible under this federal law. FMLA only applies to employers in New Hampshire who have at least 50 or more employees located within a 75 mile radius for at least 20 weeks during the current or previous year. Furthermore, employees are only eligible to take advantage of this leave protection if they have worked for the company for at least one year, and they have worked at least 1250 hours during the previous year.
New Hampshire does not require employers give paid sick leave to their employees, and that can lead to some complicated situations as we enter flu season. The flu can pose an inconvenience for any employer by impacting employee availability and productivity, but it also poses a challenge from a legal perspective as employers sort through how to manage absences and flu shots.
Certainly many employers provide their employees with paid sick time voluntarily. This practice is good business for several reasons which go beyond philanthropy. With the lowest employment rates in the country, New Hampshire employers have to remain competitive to attract and keep the best employees, and fair and even generous benefit packages are part of this effort. The other reason, of course, is that employers who might not want to offer paid sick leave as a cost savings measure may find they have made a penny wise, pound foolish decision. The fact is, employers are more likely to lose money when they scrimp on sick leave by encouraging sick employees who can’t afford to lose a day’s pay to come into work, spreading their germs for all to share. Many would argue the small cost of a well-managed paid sick leave policy more than pays for itself in greater employee satisfaction and less disruption to productivity.
As an added measure to reducing the impact of flu season, some employers also offer flu shots to employees. Still other employers go so far as to make vaccinations mandatory. While mandatory vaccination policies are generally viewed as lawful, there must be exceptions available. Specifically, employees may seek to opt out of vaccinations on the basis of religious beliefs and the protections offered under Title VII of the Civil Rights Act. Employees may also opt out if they have a qualifying medical issue that would be exacerbated by the flu shot. If your employer requires flu shots and you’d rather not participate, ask if there is an ability to opt out.
For employees who need more than just a few days off from work, there may be other benefits or protections available to supplement sick leave. Extended illness or injury that is considered serious of disabling may qualify an employee for disability insurance payments and or job protection under the Family Medical Leave Act or the state or federal laws on discrimination. Employees who have been employed one year, have worked 1250 hours, and work for an employer at a location with more than 50 employees within 75-mile radius, are eligible for up to twelve (12) weeks of unpaid leave under the FMLA. The ADA and NH’s Disability Protection Statute RSA 354-A may offer right to accommodations or protection from unfair treatment related to your disability.
Finally, employees who become ill or are injured in and during the course of work may be eligible for workers’ compensation, which offers not only payment for lost wages and medical bills, but compensation for permanent injuries and job protection in the form of alternative work and right to reinstatement.
The Department of Labor has announced its labor law training seminars. They are open to the public, free and a great way for employers and employees alike to learn about the rights and obligations in the New Hampshire work place. Registration is easy, just follow the link:
The seminars are offered on different dates and in different locations throughout the State of NH, and for your convenience are listed below. Please note that some sessions are already full, so visit the above link to check availability and to sign up.
Session dates and locations:
New thresholds for overtime pay have some up in arms, while others are jumping for joy, claiming it's about time!
After 12 years, the United States Department of Labor has taken steps to extend overtime pay protections by updating the regulations defining which white-collar workers are protected by the Fair Labor Standards Act's minimum wage and overtime standards. As of December 1, 2016, any worker engaged in interstate commerce or employed by a business with more than $500,000 in revenues, must either be paid a minimum salary of $47,500 per year or be paid time and a half for any hours worked over 40. Likewise, the total annual compensation requirement for highly compensated employees (HCE) will increase from $100,000 per year to $134,004 per year. Future automatic updates to those thresholds will occur every three years, beginning on January 1, 2020.
The minimum standard salary and compensation levels needed for executive, administrative and professional workers to be exempt had been $455 a week or $23,660 a year. As of December 1st, those weekly salaries will have to be a minimum of $913 a week. The rule does allow for employers to reach this minimum with lower weekly salaries, in some cases, such as non discretionary bonuses.
For those who question whether this new threshold has any fair relation to actual market rates or job descriptions, the DOL has an answer. This salary level and those to follow will be set to the 40th percentile of earnings for a full-time salaried worker in the lowest wage census region. (Currently that region is the south where workers in the 40th percentile earn $913 per week on average and $47,476 for a full year). The rule will require those salary levels be adjusted as necessary every three years.
Critics argue this rule change could lead to disastrous consequences for the economy as employers seeking to avoid the increased costs of salary or overtime will inevitably demote salaried workers to hourly positions and then cut or limit their work week to 40 hours per week. That may be true, but to meet demands of the work, they will likely have to create more jobs to take up the slack.
From the New Hampshire Department of Labor official website.
How long is my claim open?
Medical bills related to your injury remain the responsibility of the carrier as long as treatment is required. There are certain time limits for indemnity benefits depending on the circumstances of the case. See RSA 281-A:31.
How soon does workers' compensation start?
Workers' compensation starts on the fourth day of disability (subject to a three day period). The waiting period is waived if the disability continues for 14 days or longer or if an employee returns to temporary alternative employment within five days.
House Bill 1316 was signed by Governor Hassan on May 27, 2016 to be effective July 26th 2016. This bill will require hospital’s to limit the amount they charge to “self pay” patients to the same rate they generally receive from health carriers. For those who self pay for medical treatment this is important news as some providers were billing for services at a higher rate than the amount they accepted from the insurance companies with whom providers have contractual discounts. Now, the same discounted price afforded to the big insurance companies will be passed on to the private payer.
The one exception is for those who self pay, but have another form of insurance available such as med pay, or other liability coverage. These people can still be charged at a higher rate. This may result in providers having to determine if the self pay patient has other available coverage at the time of service and open up a can of worms. Does an individual have “liability coverage” if the claim has been denied and is in litigation? Also, this will require that patients understand what Med Pay is and many do not.
This looks like a good step forward in offering fair billing to those without health insurance, but it looks like there is more work to be done. We will need to keep our eye on this! Here is the language of the bill in its final form: 139:1 Hospital Rates for Self-Pay Patients. Amend RSA 151:12-b to read as follows:1. 151:12-b Hospital Rates for Self-Pay Patients. When billing self-pay patients for a service rendered, a hospital shall accept as payment in full an amount no greater than the amount generally billed and received by the hospital for that service for patients covered by health insurance. A hospital shall determine the amount generally billed to health carriers in a manner consistent with Section 9007 of the Patient Protection and Affordable Care Act of 2009. A hospital shall provide written notice to a self-pay patient in advance of providing a service and at the time the service is billed regarding the requirements under this section. For the purposes of this section "hospital'' means an institution which is engaged in providing to patients, under supervision of physicians, diagnostic and therapeutic services for medical diagnosis, treatment, and care of injured, disabled, or sick persons, or rehabilitation services for the rehabilitation of such persons. The term "hospital'' includes psychiatric and substance abuse treatment hospitals. In this section, "self-pay" means a patient seeking care at a hospital who does not have any form of insurance, including, but not limited to, health insurance, MedPay coverage, or any other liability coverage. 139:2 Effective Date. This act shall take effect 60 days after its passage. Approved: May 27, 2016Effective Date: July 26, 2016
In 2002, June was declared National Homeownership Month by President George W. Bush, building upon the focus given to home ownership by the Clinton Administration beginning in 1995. The pride in homeownership here in the US, however, runs deeper than the last two decades. The ability to own your own home, if you work hard, is central to the American Dream. President Clinton began his campaign to extend homeownership in the US month 20 years ago—as we hit the halfway point in this year’s National Homeownership Month what is the state of progress in building American home ownership?
Today, homeownership in the US sits at the lowest rate since 1989. The homeownership rate fell to 63.8% in the first quarter of 2015, and has declined steadily since peaking at 69.2% in 2005. Much of the decline can be attributed to fallout from the 2008 financial crisis, and the housing bubble which helped drive the financial collapse. Americans have been cautious since then, and many families are only now recovering enough to consider buying a home.
There are, however, reasons to think that homeownership is poised to make a comeback. There are nearly 2 million more renter households than there were this time last year, and eventually, some of these renters are likely to become homeowners. Renting is often the first step towards homeownership. Vacancy rates for both rental apartments and owner occupied homes also fell from last year.
Progress has been slow, and while a huge turnaround is not likely around the corner, the future for American home owners should be bright. When President Bush first established National Homeownership Month in 2002 he said “where homeownership flourishes, neighborhoods are more stable, residents are more civic-minded, schools are better, and crime rates decline.” This is still true today.
Renting your second home can provide significant income, and the opportunity to earn rental income plays a part in most decisions to purchase a vacation home. Average vacation home rentals earn nearly $30,000 annually, which is a lot, but renting out your vacation home isn’t always easy. Here are a few tips for making the process as smooth (and lucrative) as possible.Know the costs. Know the rental rates, and compare that to your monthly mortgage. Include estimated costs for marketing, cleaning, repairs, and maintenance. Make sure it will be a profitable venture, as that’s the point!Know how much time you’re willing to spend. Be prepared to spend a lot of time managing the property if you don’t want to use a full service management company. Management companies charge a premium (often 20%), but it saves you a lot of time and headaches. Understand that if you do it yourself you have marketing, inquiries, booking, and housekeeping to manage.Pay for marketing. It’s a chunk of money (often upwards of $1000) but it pays in returns. Especially in areas where many vacation homes may be available think about how your home will stand out. Your rental home won’t earn you any income if nobody knows its available!Know your tenants, and be specific about your guidelines. You may want to set some ground rules, like a minimum age requirement, maximum number of people allowed, and rules regarding pets. Having this clearly laid out will head off concerns here before they arise. Its also often worth doing a credit and criminal check on your renters.Be prepared to deal with accidents. Even with the most responsible tenants its best to assume some damage will occur. Requiring security deposits is one way to mitigate this risk. You may also want an insurance policy that covers damage caused by renters. If your current policy doesn’t cover renter damages, you may want to switch.Create a guest-host dynamic. Its much more productive then landlord-tenant, and your renters will like you more, give a better review, and treat your home better.
If you’re interested in renting your home for some additional income, you may want to reach out to an attorney to make sure you’re maximizing your return and minimizing your risk!
Photo courtesy of Wikimedia user Mark Crawley under a Creative Commons Attribution 2.0 Generic License.
The Supreme Court’s decision to legalize gay marriage nation wide will have sweeping impacts, both immediately and in years to come. One of the immediate effects of the 5-4 ruling in favor of universal marriage rights will come in the realm of employment law. The legalization of gay marriage has necessitated policy changes for employers around the country.
The new ruling will have immediate effects on benefits for spouses. Companies that extend spousal benefits, either because of state laws or company policy, will be immediately required to provide equal coverage for same-sex marriage spouses. Employers will need to review health insurance, tax status, and spousal leave options for same-sex married couples in the context of the new ruling.
One specific effect is that companies must extend Family Medical Leave Act (FMLA) benefits to same-sex married couples. FMLA mandates that employers provide up to 12 weeks of leave annually for an employee who is either dealing with a serious medical condition themselves, or caring for an immediate family member (including spouse) with such a condition. Without exception, same-sex couples must now be provided equal benefits.
The ruling clears up what could have been a complicated legal situation for employees and employers alike. Some states had previously legalized same-sex marriage, while others had not—this meant that it was possible for a same-sex couple to be legally married in one state, but receive no spousal benefits if they worked in a state that did not recognize gay marriage.
With the new Supreme Court ruling, there is no lack of clarity—employers must provide same-sex married couples the same rights and access to benefits that heterosexual married couples receive.
Need a quick guide to eligibility requirements for Disability Retirement? Here’s a checklist from the New Hampshire Retirement System (NHRS) website.
Members who are no longer able to perform the duties of their NHRS-covered employment due to an incapacity (either mental or physical) that is likely to be permanent may qualify for a Disability Retirement benefit. The Disability Retirement pension will be payable for the eligible member’s lifetime if the member’s disability continues.
Eligibility for Ordinary Disability Retirement (non job-related)
With Mother’s Day just behind us, most of us probably spent some time and money in appreciation of our Mom. On average Americans spent $169 on Mother’s Day in 2013— a better use of our resources might be reviewing the current state of gender equality in the workplace. Despite our heavy spending on Mother’s Day, the US could do significantly more to ensure that moms everywhere have equal opportunity, pay, and protections in the workplace. Here are some areas we could improve on:Women still earn significantly less than their male counterparts. Full-time, year round female employees earn 77 percent of their male counterparts, and while this gap has narrowed over time, there’s still significant work to be done.Women are significantly underrepresented at the highest levels of corporate management, and female executives are still a rarity. Only 7 percent of S&P 1500 companies have a top female manager, up from 1.6 percent in 1992. Unfortunately, most companies with a woman in their top five executive positions had only one woman in that group.The United States is one of only two countries in the world that provided no paid time off for new mothers. While we do have laws in place that ensure women can take time off without risking their job following the birth of a child, it is not paid, and lengthy leaves are often frowned upon.
Some states do provide greater protections for women in the workplace, extending beyond what is federally required. The state of California has mandated 6 weeks of partially paid maternity leave since 2002, and more than 90% of companies in the state have reported positive or neutral effects.
New England states also tend to provide greater protections for female employees—a 2015 study included Vermont (#1), New Hampshire (#4), Massachusetts (#5), and Maine (#8) in its top ten most friendly states for working mothers.
While most moms appreciate flowers, chocolate, and jewelry on Mother’s Day, there are bigger (and more meaningful) gifts we could be giving to mothers across the country. Equal pay, greater professional opportunity, and paid maternity leave would be good starting points.
Image courtesy of Wikimedia user Unforgettableid under a Creative Commons Attribution-Share Alike 2.0 Generic License.