Ocean State Friday Fun Facts

We missed last week's Ocean State Friday Fun Facts, so here's a bonus "three-pack."  Enjoy the weekend!

• Consistent with its small size, Rhode Island's State Motto, "Hope," is the shortest of any of the states.

• Most Americans know that Rhode Island is the smallest state in the Union (OK, maybe the good folks in Delaware don't know that).  However, do you know just how small Rhode Island is in comparison to Alaska?  Believe it or not, you could fit 424 Rhode Islands within the state of Alaska.

• Did you know that The Industrial Revolution started in Rhode Island?  It all began with the development and construction in 1790 of Samuel Slater's water-powered cotton mill in Pawtucket.

What's DOMA Got To Do With It?

At the Rhode Island Employment Law Blog we LOVE feedback from our readers.  Typically, we receive feedback through our LinkedIn connection to the Blog.  In addition, you can write your questions or comments right at the bottom of each Blog post.  

Today's great feedback question comes from Bill Klocek (thanks Bill!) who wanted to know why DOMA (Defense of Marriage Act) did not trump Rhode Island Governor Chafee's executive order recognizing same-sex marriages from other states.  GREAT QUESTION!


First, a little background.  D.O.M.A. is a federal law, enacted in 1996, that denies federal recognition of same-sex marriages and authorizes states to refuse to recognize same-sex marriages licensed in other states.  


Under the Full Faith and Credit Clause of the U.S. Constitution (Article IV, Section 1), states are expected to recognize the public acts, records, and judicial proceedings of every other state.  Congress was alarmed at the prospect of a lesbian or gay couple being married in one state and then going to another state and expecting that state to recognize them as legally married.  Congress did not want to grant same-sex couples the same federal benefits that are given to heterosexual couples who are legally married.


In order to prevent this from happening, Congress passed DOMA.


The kinds of federal laws in which marital status is a factor include: 

• Social Security and Related Programs, Housing, and Food Stamps
• Veterans' Benefits
• Taxation
• Federal Civilian and Military Service Benefits
• Employment Benefits and Related Laws
• Immigration, Naturalization, and Aliens
• Native Americans
• Trade, Commerce, and Intellectual Property
• Financial Disclosure and Conflict of Interest
• Crimes and Family Violence
• Loans, Guarantees, and Payments in Agriculture
• Federal Natural Resources and Related Laws

The text of DOMA is very brief and contains only two provisions: (1) No state, territory, or Indian tribe shall be required to legally recognize a "relationship between persons of the same sex that is treated as a marriage under the laws of another state, territory or Indian tribe."  In other words, the Full Faith and Credit Clause of the Constitution has no application to same-sex marriages. (2) The federal government is to follow a definition of the word "marriage" that means only "a legal union between one man and one woman as husband and wife."

So, to answer Bill's question, DOMA bars federal recognition of same-sex marriages.  DOMA permits states to ignore same-sex marriage recognition from other states, but it does not prevent a state from recognizing same-sex marriages in other states.

Rhode Island Governor Chafee Signs an Executive Order Recognizing Out-of-State Gay Marriages.

On Monday, May 14, 2012, Rhode Island Governor Chafee signed an executive order recognizing same-sex marriages performed in other states.  Governor Chafee claimed that his executive order came in response to confusion and inconsistency within the Rhode Island State Department and Rhode Island agencies on how to treat out-of-state gay marriages.

The executive order requires state departments and agencies under the executive branch to recognize out-of-state same-sex marriages


The Executive order covers:

• Insurance.  Insurance companies conducting business in Rhode Island must extend insurance to same-sex couples on the same terms as to married couples.  This includes automobile, life and health insurance policies.
• Parental Rights.  When a child is born to a same-sex couple, birth certificate will list mother and spouse.
• Property and Other Rights.  Surviving spouse will be listed on death certificate of a married decedent.  Same-sex spouse will be exempt from sales tax for transfers of property between the.

The Executive Order Does Not Cover:

• Divorce.  Rhode Island Family Court will not conduct divorce proceedings for same-sex couples.
• Income Tax.  Same-sex married couples will not be eligible to file state taxes jointly.
• Estate Tax.  In gay marriages, the surviving spouse will not be eligible for the marital deduction under the Rhode Island estate tax.

Trends in Rhode Island Employer-Provided Health Care Benefits

Consistent with the declining economy, the trends of employer-provided health care benefits have been in decline.  According to the results from the Rhode Island Department of Labor and Training's Benefits Survey, employer provided access to health care benefits for Rhode Island full-time workers has decreased from 79% in 2005 and 2007 to 73% in 2009 and 2011.  Moreover, the percentage of employers offering health benefits to part-time workers has decreased from 18% in 2005 to 13% in 2011.


According to the Survey, smaller companies (employers with less than 20 employees) are less likely to to offer health insurance to their full-time employees than larger companies.  The share of small employers who offer health insurance has declined from 75% in 2007 to 65% in 2011.

The percentage of employers who pay 100% of their employees' health insurance premiums has declined as well.  As recently as 2009, 25% of Rhode Island employers paid the full cost of health care premiums for the family plans offered to their full-time workers.  However, in 2011 the survey revealed that less than 15% of employers now pay full costs associated with a family plan.


Monthly premiums for health insurance in Rhode Island have increased for both family and individual plans.  Employers reported the monthly costs associated with the individual plan offered to their workers increased from $424 in 2007 to $520 in 2011.

Rhode Island "Homeless Bill of Rights" passed by the Senate

By an overwhelming margin (33 - 2), the State Senate of Rhode Island approved legislation that would give greater protections against discrimination to homeless people.  If the Senate's legislation eventually becomes law, Rhode Island would be the first state in the United States to provide protections against discrimination of homeless people.


According to a report by WPRI.com, the bill would include at least eight fundamental rights for homeless people including:

• The right to emergency medical care
• The right to be free from searches and detention
• The right to reasonable expectation of privacy of personal property
• The right to protection from disclosure to law enforcement agencies
• The right not to face discrimination while seeking or maintaining employment due to lack of a permanent mailing address
• The right to confidentiality of personal records and information
• The right not to be criminally sanctioned for unobtrusively sleeping in a public place

The Rhode Island Coalition for the Homeless reported that approximately 4,400 people in Rhode Island experienced homelessness at some point in 2010.

So, what do you think?  Do the Homeless in Rhode Island need their own Bill of Rights?  Do you agree that the Homeless should be entitled to the proposed "rights" set forth above?  If you do not agree with some or all of the proposed rights, what suggestions do you have to modify the proposed legislation? 

Flying to Orlando. Guest Speaker (Employment Law) at the Annual Convention of the Independent Armored Car Operators Association

Rhode Island & Religion: Origins, Demographics and Discrimination

From its origin to the present, religion has been an important part of Rhode Island.  Clergyman, Roger Williams founded the present state capital, Providence, after being exiled by the Massachusetts Bay Colony Puritans in 1636.  Other religious exiles founded Pocasset (now known as Portsmouth) in 1638 and Newport in 1639.

Despite its religious origins, or perhaps because of its rebellious, authority-defying nature, Rhode Island is one of the least religious states in the country.  According to a recent Gallup survey, only 32% of Rhode Islanders are "very religious," which places Rhode Island tied with New York as the 10th least religious state in the union.  Nonreligious residents comprise 37% of Rhode Island population and 31% are moderately religious.  With 63% of its residents either very or moderately religious, Rhode Island is lower than 68% of all Americans who are religious.  Nevertheless, Rhode Islanders are more religious than the residents of other New England states (CT 57%, MA 53%, ME 52%, NH 48%, and VT 43%).


In such a mix of religious and non-religious beliefs, employers should be mindful of religious discrimination in the workplace.  For example, employers must face the somewhat paradoxical decision of taking into account an employee's religion when making certain workplace decisions (accommodations) while at other times ignoring an employee's religion (e.g. hiring decisions).


With only a few exceptions, an employer may not fire, demote, terminate, or otherwise take actions against an employee because of her religion.  The rare exception to this general rule is a bona fide occupational qualification (BFOQ), such as hiring a Catholic man to be a priest in a Catholic church.

Is the U.S. 40-Hour Work Week "Just Right"?

In a recent article in Time.com, author Geoffrey James noted that the COO of Facebook routinely leaves the office at 5:30 p.m. to be with her children.  However, for years she felt the need to hide this fact before "coming out of the closet."


Almost a century ago Ford Motor Company ran dozens of tests and discovered that the "sweet spot" was 40 hours per week for optimum productivity.  In six of the Top 10 most competitive countries in the world (Sweden, the U.K., Germany, Finland, the Netherlands, and Denmark) it is illegal to demand more than 48 hours of work per week.


So, what do you think?  Is the "standard" 40-hours per week in the U.S. too much, too little, or "just right"?  Would you prefer to work 10 hours per day in a 4-day work week?

Ocean State Friday Fun Facts

In 1524 the Florentine navigator Giovanni da Verrazano, while sailing for France, was the first European to explore Rhode Island.  By comparing Block Island with the Mediterranean island Rhodes, he accidentally gave it its name.

Rhode Island Employment Law Re: Use of Applicant's Criminal Records: Arrests, Charges and Expungement.

In the wake of the EEOC's recent pronouncement regarding the use of criminal arrests and convictions in the employment law setting, a brief review of Rhode Island laws regarding criminal records as part of a job application.  In Rhode Island it is illegal for any employer to include on any application for employment (except for law enforcement positions)a question inquiring whether the applicant has ever been arrested or charged with a crime.  However, employers may inquire whether the applicant has ever been convicted of a crime.


Similarly, in Rhode Island, any person whose criminal records have been expunged shall be released from all penalties and disabilities from the crime of which he had been convicted.


In any application for employment, a person whose conviction of a crime has been expunged may state that he has never been convicted of a crime.

Rhode Island Recognized Transgender Non-Discrimination Eleven Years Before the EEOC Prohibited Transgender Discrimination

Eleven years after Rhode Island became the second state in the nation to adopt a law prohibiting discrimination against transgender people in employment, housing, credit and public accommodations, the EEOC issued its own rule prohibiting discrimination against transgender employees or job applicants.  According to the EEOC's new rule, transgender discrimination is prohibited by Title VII of the Civil Rights Act.                        


Of course, the EEOC's ruling is NOT binding on the courts, but it will influence how the EEOC and state agencies enforce Title VII.

In Rhode Island and throughout the United States, Title Inflation Can Cause Problems for the Worker and the Employer.

Which job titles actually mean something in the work world?  When done right, a nontraditional job title can describe a person's skills with greater specificity, making that person's role at a company clearer and enhancing his or her marketability.

Some companies are also adding a little humor or edginess to titles, a reasonable idea but one that may not help the employee in the long run.  Title inflation can cause problems for the worker and the employer.

If the worker is seeking another job, an inflated title might land him an interview for a job for which he is wildly underqualified. And networking sites make it easy for potential employers to figure out a person's place in a company, regardless of title. No recruiter's going to be impressed by someone carrying a title that overstates his or her abilities.

For the employer, inflating employee job titles can lead to legal problems, especially if the employee's title does not match his job duties. Companies can be audited by the state or federal labor department and can get in trouble if they have people working under titles that don't line up with their duties — particularly if the trumped-up titles are being used to skirt state and federal wage and hour laws. 

Rhode Island Unemployment Rate Rose to 11.1% in March 2012

Rhode Island lost 600 jobs between February and March 2012.  Unemployment in the state is up slightly to 11.1 percent for March, from 11.0 percent in February.  Rhode Island's unemployment rate is now nearly three percentage points higher than the national unemployment rate of 8.2 percent.

State officials, backed by a local economist questioned whether the monthly jobs report accurately captured the nuances of the local economy -- specifically the number of jobs that exist in the state.

DLT Director Charles J. Fogarty commented, "No one is suggesting we're in a robust recovery, but we do want to give people some measure of hope, and we see some signs that the recovery is under way slowly."

Rhode Island is ‘Tough on Retirees’

Rhode Island is “particularly tough on retirees” according to a report by business forecast and personal finance publication Kiplinger.

The Ocean State taxes up to 85 percent of Social Security benefits similar to the way the federal government does and it taxes “virtually all other sources of retirement income,” according to Kiplinger.

While railroad retirement benefits are exempt, which is true for every state, out-of-state government pensions are fully taxed.

As of January 2011, Rhode Island revised its income tax withholding rates, brackets and withholding allowances. The revision expanded tax brackets and lowered the top marginal income-tax rate from 9.9 percent to 5.99 percent.

The state has the fifth-highest median real estate tax in the United States, according to the Tax Foundation and it treats capital-gains income as ordinary income for tax purposes.

Can Employers Ban Obese Employees?

Citizens Medical Center, a health-care facility in southeastern Texas, is refusing to hire any person who has a body mass index over 35, which means that in order to work at the hospital, a 5'5" applicant can weigh no more than 210 pounds. Officials say the measure is meant to promote healthy living, so that employees can set an example for patients. The rule is legal in Texas.

The law is different in Rhode Island.  In November 1993, the First Circuit, in Cook v. Rhode Island, Department of Mental Health, Retardation, and Hospitals, became the first United States Court of Appeals to acknowledge morbid obesity as a disability under federal disability law.' The First Circuit reasoned that conditions such as obesity that are arguably voluntary or mutable are not preempted per se from the protection of federal disability law.'  Additionally, the court recognized that the negative stereotypes that American society associates with the obese are evidence that society perceives obesity as a disability."

Judge Rules In Favor of Fired Employee With Bipolar Disorder

On March 28, after a four-day bench trial, Judge Edward F. Shea of US District Court for Eastern Washington ruled in Plaintiff's favor, noting "[The Employer's] deficient ADA policies and practices." The Judge found that the company's half-dozen different rationales for terminating the employee were simply a pretext for discrimination. The Judge awarded the employee $6,500 in back wages and $50,000 for emotional pain and suffering. The court also issued a three-year injunction, requiring the employer to train its managers and human resources personnel on anti-discrimination and anti-retaliation laws.

Breast Feeding at Work: Rhode Island and Federal Laws

Breastfeeding Laws in Rhode Island: Employers should provide a breastfeeding mother with flexible breaks and a safe, clean, privateplace to pump breastmilk or breastfeed her child.  Section 23-13.2-1 (2003).  A woman may breastfeed or bottle-feed her child in any place open to the public. Section 23-13.5-1(2008)


Federal Breastfeeding Law:The United States Patient Protection and Affordable Care Act requires nationwide workplace lactation accommodations:  www.dol.gov/whd/nursingmothers

Rhode Island Treasurer Raimondo Tells Communities to Think Long-term in Fixing Pension Plans

Sharing the lessons her office learned last year in overhauling the state pension system, the treasurer told the two dozen municipal leaders at CCRI to resist the urge to focus on short-term solutions, which might unfairly target one group -- and leave the community vulnerable to legal challenges.

Think long term, she said. Study the big questions. Make the process transparent so citizens and the unions can see the scope of the problem and the solutions being considered.

Under the state pension overhaul law, the communities have until November to present a plan to fix their pension plans.

Maryland and seven other states may pass bills to protect employees from disclosing personal social media passwords

Maryland may become the first state to ban employers from demanding applicants or workers hand over their log-in information for social media sites. The measure keeps managers from snooping on password-protected content, a practice advocates of the bill say violates privacy and intimidates job seekers and employees. 


It is impossible to know exactly how often employers ask to tap into prospective workers' accounts, but it is happening more and more frequently.

While the Maryland legislation is the first of its kind, lawmakers in at least seven other states have introduced legislation to limit employer access to social media user names and passwords, according to the National Conference of State Legislatures.