The New Hampshire legislature has passed a law adding RSA 275:37-b titled “Flexible Working Arrangement” which states that no employer shall retaliate against an employee solely because the employee requests a flexible work schedule. The new statute does not require the employer to accommodate a flexible work schedule and it specifically states that the statute does not create a cause of action for failure to provide a flexible work schedule at the employee’s request. The law becomes effective September 1, 2016.
While it appears that this statute may create a “foot in the door” to discuss employer’s requirements for employee flexible work schedules, at this time the statute does not provide any obligation for the employer to provide a flexible work schedule, but merely states that the employer cannot not retaliate against the employee for requesting a flexible work schedule. While it is difficult to imagine that an employer would retaliate against the employee because he/she asked for a flexible work schedule, it is useful for human resource professionals to be aware of this law so they do not add a comment in an exit interview about the request for a flexible work schedule, similar to mentioning in an exit interview that while the employee is being fired for performance it did not help him that they whined so much about work conditions. Firing an employee for work performance is completely legal; yet the National Labor Relations Act prohibits firing someone because they were engaged in a concerted activity which includes complaining to co-employees about work conditions.
Similarly, as to this statute an employee who is not doing his work on time or properly may ask for a flexible work schedule. If the employee is fired for poor job performance, the employer should not state in a discussion with the employee that his asking for a flexible work schedule did not help his prospects in keeping his job. Since this statute states that the employer cannot retaliate against an employee solely for his requesting flexible work arrangements the employer may successfully defend a wrong termination suit based upon this statute under those circumstance if the employer can prove that at a minimum part of the reason for the firing was based poor job performance yet the employer can minimize the chance of such a law suit by not mentioning to the employee the request for a flexible work arrangement and focusing in on the poor job performance which is the real reason for the firing.
Of course flexible work schedules could be a requirement under the American With Disabilities Act or the state discrimination laws and if you have enough employees perhaps there might be a requirement under the Family Medical Leave Act depending on the reasons for the flexible work schedule request. If there is such a flexible work schedule request, it is generally prudent to speak with the company’s employment counsel to see, given the size of the company and the reason for the request, whether or not some accommodation for the flexible work schedule is legally required.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].