Matthew H. Upton Drummond Woodsum 100 International Drive, Suite 340 Portsmouth , N.H. 03801 603 433-3317 mupton@dwmlaw.com

I. CRIMINAL BACKGROUND CHECKS. II. AUGMENTATION OF WORKERS’

COMPENSATION BENEFITS. III. GENETIC INFORMATION

NONDISCRIMINATION ACT (GINA). IV. USE OF FACEBOOK IN HIRING PROCESS. V. REPEAL OF EVERGREEN LAW. VI. COLLECTIVE BARGAINING IN A

TROUBLED ECONOMY (Update).

RSA 189:13-a background checks only disclose certain crimes.

◦ Murder, manslaughter, child crimes, rape, kidnapping, indecency and pornography.

RSA 189:13-A will not disclose assault, destruction of property, fraud, embezzlement, theft, or other crimes of dishonesty.

Revise employment application to ask the following question: Have you ever been arrested or convicted of a crime which has not otherwise been annulled?

RSA 189:13-a allows the employer to deny employment for felony convictions not otherwise uncovered by the RSA 189:13-a background check.*

Many Districts have policies that augment workers’ compensation benefits up to 100% of net base pay.

Many Districts simply keep running the regular paycheck and have the employee endorse the workers’ compensation check over to the employer.

It is improper for the employer to make retirement contributions (or take tax/retirement deductions) on that portion of pay that represents workers’ compensation benefit (60% of base wage).

Districts should issue a supplemental check up to 100% net base pay with contributions/deductions based only on the supplemental pay amount.

GINA was passed at the end of 2008 and went into effect on January 10, 2011.

Prohibits employers from discriminating against applicants and employees based upon genetic information.

Genetic information includes:

◦ Family medical history including family members out to the 4th degree (great-great-grandparents).

◦ Genetic testing or screening.

◦ Information gathered by life Insurance companies relating to genetic predisposition.

◦ Excludes information gathered in voluntary wellness programs.

Mandatory notice to physicians NOT to provide genetic information to the employer.

Do not probe employees or applicants for family medical history.

Add notice to FMLA or other medical certifications (fitness for duty) to those providing information to exclude genetic information.

Update EEO policy and harassment policy to prohibit discrimination based upon genetic information.

Make sure you have the latest EEOC poster: http://www.eeoc/employers/poster.cfm

20% of employers use social networking sites to learn more about employees and applicants.

33 % of employers that use social networking sites have rejected applicants/candidates based on the content of the site.

Personal web postings can contain information regarding membership in a protected classification or participation in a protected activity. Examples.

Postings can contain views/speech protected by the First Amendment. Examples.

Postings can also contain genetic information. Examples.

Rejected employee, candidate or applicant may claim that the adverse employment action is based on the membership in a protected classification, engagement in protected activity or genetic information discovered while visiting the web posting.

Access to stored electronic information without permission can violate the Federal Stored Communications Act, 18 U.S.C. §§ 2701 to 2712.

Adverse employment actions for completely private activity/conduct may expose District to damages (Papa Gino’s Case).

Obtain a written authorization from the employee, candidate or applicant to access the information.

Disregard any genetic information. Avoid making judgments about speech that may be

protected by the First Amendment. Watch out for private conduct that does not impact

ability to perform job. Must have nondiscriminatory reason for adverse

employment action (even if not intended to be shared with the employee or applicant).

Consult with school attorney prior to taking any adverse employment action based on the content of the web posting.

Effective March 1, 2011, the Evergreen Law has been repealed (SB1).

Evergreen law required employers to continue payments to union employees under the “pay plan” in the event of impasse (for contracts entered into after July 15, 2008).

Unless your contract has an independent “evergreen clause,” there is no longer a requirement that the employer continue to make payments under the “pay plan” while under the common law doctrine of status quo (impasse).

Eliminate or reduce funding of underutilized benefits. Look to historical usage.

Lower overtime/substitute expenses (if possible). Consider austerity programs and share savings

with Union employees (stop loss & energy use reductions etc.)

Increase and improve service to taxpayers. Look to fund modest salary increases with

benefit savings or other cost avoidance.

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Consider changing health insurance driver to HMO or POS (BC/BS 3Tier) to reduce costs and control long term growth. Unbundled rate differentials.

Consider cost avoidance or cost savings from changing prescription drug benefits (10/20/45).

Consider plans that include in-patient deductibles and offset impact to employee (in whole or in part) with reimbursement program.

Shop the rates of other carriers.

Voters are looking for “belt tightening.” Some Examples: 1. Suspend or eliminate annuity or retirement payments. 2. Suspend or eliminate sabbatical programs. 3. Cut back on what are perceived as excessive benefits for new hires. 4. Consider tying wage increase to COLA (no

increase in COLA- No raise). 5. Evaluate whether early retirement programs/incentives are still a “win-win.”

Matthew H. Upton Drummond Woodsum 100 International Drive, Suite 340 Portsmouth , NH 03801 603 433-3317 mupton@dwmlaw.com © All rights reserved.