Led by employment lawyer Jen Moeckel of Cook Little Rosenblatt, & Manson PLLC, this session will provide an overview of the hiring process, independent contractor/employee/intern classifications, and wage & hour and other compliance issues. The seminar will also provide tips for designing and implementing employee agreements to protect your company’s IP and confidential information. Slides presented November 1st, 2012 at the Idea Greenhouse in Durham NH. See www.ideagreenhouse.biz for more information. Go to: http://www.clrm.com/

1. Presented to Idea Greenhouse
Members & Guests
By Attorney Jennifer Shea Moeckel
Cook, Little, Rosenblatt & Manson, p.l.l.c.
www.clrm.com
November 1, 2012
Cook, Little, Rosenblatt & Manson, p.l.l.c.

2. NH Department of Labor Newly Revised 7 Factor Test
ALL 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.
Cook, Little, Rosenblatt & Manson, p.l.l.c.

3. An important step in hiring “right” is determining and
properly classifying:
1.Independent contractors;
2.Interns; and
3.Employees.
Cook, Little, Rosenblatt & Manson, p.l.l.c.

4. 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.”
Cook, Little, Rosenblatt & Manson, p.l.l.c.

5. The IRS Uses Common Law Rules
The 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.
Cook, Little, Rosenblatt & Manson, p.l.l.c.

6.  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.
Cook, Little, Rosenblatt & Manson, p.l.l.c.

7. 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.
Cook, Little, Rosenblatt & Manson, p.l.l.c.

8.  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?
Cook, Little, Rosenblatt & Manson, p.l.l.c.

9.  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?
Cook, Little, Rosenblatt & Manson, p.l.l.c.

10.  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?
Cook, Little, Rosenblatt & Manson, p.l.l.c.

11.  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?
Cook, Little, Rosenblatt & Manson, p.l.l.c.

12.  Gaps in resume
 Details on application
 Prior experience
 Ability to perform “essential functions,” including
physical requirements with or without
reasonable accommodation
 References
Cook, Little, Rosenblatt & Manson, p.l.l.c.

13.  Disability, genetic information
 Religion
 Sex, Sexual Orientation
 Age
 Marital Status
 Pregnancy, Childcare
 Nationality, Race, or Ancestry
Cook, Little, Rosenblatt & Manson, p.l.l.c.

14. 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)
Cook, Little, Rosenblatt & Manson, p.l.l.c.

15. 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
Cook, Little, Rosenblatt & Manson, p.l.l.c.

16. 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
Cook, Little, Rosenblatt & Manson, p.l.l.c.

17.  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.
Cook, Little, Rosenblatt & Manson, p.l.l.c.

18.  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.
Cook, Little, Rosenblatt & Manson, p.l.l.c.

19.  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.
Cook, Little, Rosenblatt & Manson, p.l.l.c.

20.  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
Cook, Little, Rosenblatt & Manson, p.l.l.c.

21.  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.
Cook, Little, Rosenblatt & Manson,
p.l.l.c.

22.  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
Cook, Little, Rosenblatt & Manson, p.l.l.c.

23.  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
Cook, Little, Rosenblatt & Manson, p.l.l.c.

24. 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.
Cook, Little, Rosenblatt & Manson,
p.l.l.c.

25. 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.
Cook, Little, Rosenblatt & Manson, p.l.l.c.

26. 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.
Cook, Little, Rosenblatt & Manson, p.l.l.c.

27. 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.
Cook, Little, Rosenblatt & Manson, p.l.l.c.

28. 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.
Cook, Little, Rosenblatt & Manson, p.l.l.c.

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