Legal Updates

Crime Victims Eligible for Leave in New Hampshire

In recently enacting the New Hampshire Crime Victim Employment Leave Act (the “Act”), New Hampshire joins a growing number of other states, including Arizona, Connecticut, Maine and Oregon, that have enacted crime victim leave legislation.  The Act requires employers with twenty-five (25) or more employees to provide an unpaid leave of absence to employees who are crime victims or are immediate family members of certain crime victims, for the purpose of attending legal or investigative proceedings associated with the prosecution of the crime.  (The statute is ambiguous regarding whether the twenty-five (25) employees must all be employed in New Hampshire or whether employees in other states may also count towards this threshold number.)

Employee Eligibility under the Act

An employee is eligible for a leave of absence under the Act if the employee:

• is a crime victim; or

• is an immediate family member of a homicide victim; or

• is an immediate family member of a child under the age of eighteen (18) years old who is a crime victim; or

• is an immediate family member of an incompetent adult who is a crime victim.

“Victim” under the Act is broadly defined as “any person who suffers direct or threatened physical, emotional, psychological, or financial harm as a result of the commission or the attempted commission of a crime.”  “Immediate family” under the Act includes the father, mother, stepparent, child, stepchild, sibling, spouse, grandparent, or legal guardian of the victim and “any person involved in an intimate relationship and residing in the same household with the victim.”

Leaves of Absence under the Act

To qualify for leave under the Act, an employee must provide the employer with a copy of the notice of each scheduled hearing, conference, or meeting.  The employer is required to maintain the confidentiality of any written documents or records submitted by an employee relative to the employee’s request for leave under the Act.

An employer is not required to pay an employee for a leave of absence under the Act.  However, an employer may require an employee to use any accrued vacation time, personal leave time, or sick time for the leave.

Significantly, the Act does not set forth a time limitation for the length of an employee’s leave of absence to attend legal or investigative proceedings.  However, an employer may limit the leave requested by an employee under the Act if the employee’s proposed leave creates an “undue hardship” to the employer’s business.  Similar to the Americans with Disabilities Act, “undue hardship” under the Act is defined as “significant difficulty and expense to a business, and includes the consideration of the size of the employer’s business, the employee’s position and role within the business, and the employer’s need for the employee.”

Prohibitions under the Act

The Act prohibits an employer from discharging, threatening or otherwise discriminating against any employee “regarding such employee’s compensation, terms, conditions, location, or privileges of employment” because the employee has exercised his or her right for leave under the Act.

The Act serves as a reminder to each employer to be aware of all leave of absence laws in each state in which the employer operates, so as to avoid inadvertent violations of such leave laws.