New Hampshire Protects Employees Who Request Flexible Work Arrangements and Notice of Work Schedules

Executive Summary

Overview:  New Hampshire recently enacted Senate Bill 416, which grants an employee the right to request (1) a flexible work arrangement that meets the needs of the employer and employee and (2) advance notice of his/her work schedule.  It also prohibits employers from retaliating against an employee solely for making a request.

Effective Date: September 1, 2016

Coverage: All employers with employees working in New Hampshire.

Action Required:  

• In addition to other accommodation obligations, consider employee requests for flexible working arrangements;
• Ensure adoption and implementation of the procedure for evaluating and responding to requests for flexible work arrangements as well as a procedure for complying with requests for notice of work schedules;
• Ensure that supervisors are prepared to receive employee requests for flexible work arrangements and notice of schedules and promptly respond to such requests or report them to the appropriate employer designated official; and
• Contact your Human Resources Business Partner if you have any questions.

The Details

New Hampshire recently enacted Senate Bill 416, which grants an employee the right to request (1) a flexible working arrangement that meets the needs of the employer and employee and (2) advance notice of his/her work schedule.  It also prohibits employers from retaliating against an employee solely for making a request.

• Flexible Working Arrangement Request

A “flexible working arrangement” is an intermediate or long-term change in an employee’s regular working arrangements, including changes in the number of days or hours to be worked, changes in the time the employee arrives at or departs from work, working from home, or job-sharing. It does not include vacation, routine scheduling of shifts, or another form of employee leave.

Upon receiving a request for flexible working arrangements, at least two times per calendar year, employers must:

1. Discuss the request with the employee in good faith, allowing for the employer and employee to propose alternative arrangements during the discussion.
2. Consider whether the request could be granted in a manner that is not inconsistent with the employer’s business operations or its legal or contractual obligations and, if the request is not inconsistent, grant the request within a reasonable period of time from the date the request is made.
3. Notify the employee in writing of the employer’s decision within a reasonable period of time from the date the request is made.  If the request is granted, the employer must specify the details of the flexible work arrangement in an understandable and accessible manner.  If denied, the employer must specify the reasons for the denial.

Employers are free to institute flexible working arrangement policies that are more generous than that provided by the law.

• Request for Notice of Work Schedule

Senate Bill 416 also grants hourly employees the right to request notice of their work schedule.  Upon request and at least 14 days in advance of any pay period in which an employee is on the work schedule, an employer must provide the employee notice.  “Notice” is defined as the “posting of the work schedule in a conspicuous place accessible to all employees.”

Unless an hourly employee is actually scheduled to work less than four (4) hours on a given day, an employer will be required to pay an employee for his/her scheduled hours if the employee reports to work as a result of the employer’s specific instruction and is given less than the scheduled hours of work.   The employer must also pay an hourly employee for each day the employee is “given specific instructions to contact the employer, or wait to be contacted by the employer, less than 24 hours in advance of the start of a potential work shift, or where an hourly employee’s work shift is canceled within 24 hours of a scheduled shift.”  See N.H. RSA 275:37-c, III(b).

Employers may not discharge, threaten, or otherwise discriminate against an employee in regard to the employee’s compensation, terms, conditions, location, or privileges of employment because the employee has exercised any of the rights described above.  Employers also are not bound to the notice provision and payment obligations when the employer’s regular operations have been affected by events that are beyond the employer’s control.

As always, please be sure to contact your Human Resources Business partner if you have any questions.