cook little's jen moeckel presents: hey startups: hire right!

Presented to Idea Greenhouse Members & Guests

By Attorney Jennifer Shea MoeckelCook, Little, Rosenblatt & Manson, p.l.l.c.

www.clrm.com

November 1, 2012

Cook, Little, Rosenblatt & Manson, p.l.l.c.

NH Department of Labor Newly Revised 7 Factor TestALL factors must be met to classify a worker as an independent contractor:

1. The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter [NH RSA 275].

2. The person has control and discretion over the means and manner of performance of the work, in that the result of the work, rather than the means or manner by which the work is performed, is the primary element bargained for by the employer.

3. The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to completion schedule, range of work hours, and maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented.

4. The person hires and pays the person's assistants, if any, and to the extent such assistants are employees, supervises the details of the assistants' work.

5. The person holds himself or herself out to be in business for himself or herself or is registered with the state as a business and the person has continuing or recurring business liabilities or obligations.

6. The person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work.

7. The person is not required to work exclusively for the employer.


An important step in hiring “right” is determining and properly classifying:

1.Independent contractors;

2.Interns; and

3.Employees.


New Hampshire Department of Employment Security “ABC” Test

Under NH RSA 282-A:9, III, an individual will be deemed an employee unless the following are proven:

“(a) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and

(b) Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

(c) Such individual is customarily engaged in an independently established trade, occupation, profession, or business.”


The IRS Uses Common Law RulesThe following is quoted from:

http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-(Self-Employed)-or-Employee%3F

Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?

Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)

Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

Businesses must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.

The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and finally, to document each of the factors used in coming up with the determination.


If the intern will be paid at least minimum wage ($7.25/hour), the intern should be hired and treated as any other employee, noting in the offer letter the expected duration of the internship without undermining at-will employment.

If the internship will be unpaid, then it must meet criteria for the NH DOL and the US DOL.

NH DOL: State approvals are required in advance for unpaid internships, see:

http://www.nh.gov/labor/inspection/school-to-work.htm US DOL: The internship must meet 6 criteria under the

Federal Fair Labor Standards Act to qualify as unpaid.


US Department of Labor Internship Criteria under the FLSA

1. The internship is similar to training that would be provided in an educational environment;

2. The internship experience is for the benefit of the intern;3. The intern does not displace regular staff, but works under

close supervision of existing staff;4. The employer derives no immediate advantage from the

activities of the intern and on occasion its operations may even be impeded;

5. The intern is not necessarily entitled to a job at the end of the internship; and

6. The employer and the intern both understand that the intern is not entitled to wages for the time spent in the internship.


Ask questions directly related to the job and the applicant’s qualifications.

Focus on the job description and behavioral questions.

Examples of appropriate interview questions: What about the job description appealed to you

and made you want to apply for this position? Why do you want to leave your present job?


How would your co-workers and your boss describe you?

What are your major strengths and weaknesses? What are some of the challenges you are facing in

your current job and what are you doing to overcome them?

How do you deal with co-workers or supervisors who disagree with you?


What jobs have you enjoyed the most during your career and why?

This position requires [insert language specific to the job description]. Please tell us how your skills and experience qualify you for this position.

The job you are applying for requires the ability to [insert language specific to the job functions, including lifting requirements, etc.]. Can you perform this job with or without reasonable accommodation?


Describe your experience in interacting with persons of diverse cultural, social and economic backgrounds.

Tell us about your abilities to handle deadlines and pressure.

What would you like to accomplish during the next 5 to 10 years?

What do you believe differentiates you from the other candidates who qualify for this position?


Gaps in resume Details on application Prior experience Ability to perform “essential functions,” including

physical requirements with or without reasonable accommodation

References


Disability, genetic information Religion Sex, Sexual Orientation Age Marital Status Pregnancy, Childcare Nationality, Race, or Ancestry


The ADA breaks the hiring process into 3 stages:

1. Pre-Offer Stage

(no medical questions)

2. Post-Conditional Offer Stage

(medical questions permissible)

3. Employment Stage

(medical questions only if job related and consistent with business necessity)


Verify information on applications or resumes

Reference Checks Authorization, waiver, and hold harmless

agreements If you are asked for a reference, limit

information provided if no authorization is presented

Social Media/Internet Resources


Provide an offer letter that includes: Exempt/non-exempt nature of the position Rate of pay; provide pay/compensation plan, if applicable Key benefits Schedule Job responsibilities; enclose job description At-will employment Conditions of the offer (background check, drug test, etc.) Any requirement to sign a nondisclosure, nonsolicitation,

noncompete and/or assignment of developments agreement (enclose the agreement(s))

Signature/date line for the candidate to accept in writing


Criminal record check (review EEOC guidelines) Motor vehicle record check Reference check (if not already completed) Proof of valid professional licensure/ certificates Drug test Physical capacity exam/pre-placement physical* A Second Injury Fund Form may also be

completed post-conditional offer.* *Note: medical information must be pursued only

after all other conditions have been satisfied.


Learn any state-specific legal obligations Establish a relationship with a drug test facility and

determine which test(s) will be used Develop a drug testing policy Distribute the policy and obtain employee signatures Require applicants to sign an authorization for the drug

test Arrange for the applicant to have the drug test Keep the results and all other medical records in a

separate confidential medical file.


Provide written disclosure that a consumer report may be obtained

Obtain written authorization from the applicant If the report is the basis for adverse action:

Before you take adverse action: Provide the applicant with a copy of the report and FCRA rights

After you take adverse action: Provide name and contact information for the Credit Reporting Agency (CRA); statement that the CRA did not make the decision to take the adverse action and cannot give specific reasons for it; and notice of right to dispute the information supplied by the CRA and to request a free consumer report from the CRA within 60 days.


Form I-9 Form W-4 Wage & hour notification of rate, frequency, time, place

& method of payment (signed by the employee). [As an employer, familiarize yourself with the NH DOL Lab regulations available from:

http://www.gencourt.state.nh.us/rules/state_agencies/lab800.html

For youth: certificates/parental consent NHES new hire reporting


Under 16 must have a Youth Employment Certificate

16 and 17 must have written parental permission

Obtain proof of age For calculating hours worked, the workweek

must be Sunday through Saturday Schedules must be posted to include: daily

starting and stopping times, daily meal times, and maximum number of hours permitted to work in one day.


14 and 15 year olds may not work: During school hours Before 7AM or after 7PM, exception from June 1

through Labor Day when they can work until 9PM

More than 3 hours/day on school days More than 8 hours/day on non-school days More than 18 hours/week in school weeks More than 40 hours/week in non-school weeks


16 and 17 year olds may not work: More than 6 consecutive days More than 30 hours/week during school calendar

weeks More than 48 hours/week during school vacation

or summer vacation (June 1 through Labor Day) More than 10 ¼ hours/day in manual or

mechanical labor More than 8 hours per night, if working at night


NH RSA 275:56 Employee Access to Personnel Files. I. Except as provided in paragraph III, every employer

shall provide a reasonable opportunity for any employee who so requests to inspect such employee's personnel file and further, upon request, provide such employee with a copy of all or part of such file. An employer may only charge the employee a fee reasonably related to the cost of supplying the requested documents.


II. If, upon inspection of his personnel file, an employee disagrees with any of the information contained in such file, and the employee and employer cannot agree upon removal or correction of such information, then the employee may submit a written statement explaining his version of the information together with evidence supporting such version. Such statement shall be maintained as part of the employee's personnel file and shall be included in any transmittal of the file to a third party and shall be included in any disclosure of the contested information made to a third party.


III. The provisions of this section shall not require the disclosure of:

(a) Information in the personnel file of a requesting employee who is the subject of an investigation at the time of his request if disclosure of such information would prejudice law enforcement; or

(b) Information relating to a government security investigation.


IV. Health, fitness, lifestyle, and other information obtained from employees by their employer or the employer's agents for purposes of providing employees with a health risk assessment or other wellness program shall not be considered personnel records, shall not be retained in an employee personnel file, and shall be inadmissible in any proceedings under

RSA 281-A.


Lab 802.09 "Personnel file" as used in RSA 275:56 means any personnel records created and maintained by an employer and pertaining to an employee including and not limited to employment applications, internal evaluations, disciplinary documentation, payroll records, injury reports and performance assessments, whether maintained in one or more locations, unless such records are exempt from disclosure under RSA 275:56, III or are otherwise privileged or confidential by law. The term does not include recommendations, peer evaluations or notes not generated or created by the employer.
