This material was originally presented on March 12, 2003, as part of a seminar entitled New Hampshire Payroll Basics sponsored by Lorman Education Services, and held at the Executive Court Banquet Facility in Manchester, New Hampshire.

New Hampshire has enacted its own wage protection statute which is found at RSA 275. The Department of Labor has also adopted regulations which govern the payment of wages. It is imperative that employers be familiar with both the statute and the regulations since there are some unique provisions which differ from the federal law and regulations.

A. Vacation Pay

Probably one of the most frequent mistakes made by employers is in regards to the payment of vacation time when an employee terminates employment. There is no requirement that employers provide employees with paid time off. However, "wages" are defined to include paid vacation, sick time, personal days, paid holidays, bonuses, and other fringe benefits. ⁽¹⁾ Thus, if an employer does provide paid vacation time, sick time, or the like, the Department will consider such paid time to be "wages" which are due to the employee and must be paid. Rulings by the Department make clear that whether vacation or other paid time is payable at termination depends on the employer's policies. If, however, the employer's policy does not state specifically that such time will not be paid at termination, the Department will find that it is payable. Thus, employer's are cautioned to examine their policies on vacation and other paid time and be sure that those policies state clearly whether accrued and unused time is payable at termination.

B. Department of Labor Wage Orders

Employees who believe that they have not been paid all of the wages to which they are entitled, have two (2) avenues of relief. A civil suit may be filed within three (3) years from the date the wages were due. ⁽²⁾ Costs, attorneys fees and interest are recoverable if the employee is successful in a civil suit. ⁽³⁾ Alternatively, the employee can file a wage claim with the Department of Labor within 18 months from the date the wages were due. ⁽⁴⁾ The administrative claims procedure has the benefit of being simple and fairly quick. An employee does not have to have legal representation to file such a claim. The employer is given only ten (10) days to object to the claim. If an objection is filed, a hearing will be scheduled. The hearing officer must issue a decision within thirty days of the hearing.

Until recently, New Hampshire employers also faced the possibility of a "wage adjustment" order by the Department of Labor. Such orders resulted when the Department conducted an inspection or audit of an employer and found some inconsistency with either state statutes or regulations. The Department would even go so far as to cite violations of federal law. The Department would then calculate the amount of wages which were owed to employees as a result of the violation and would order the employer to make such payments to the employees, through the Department. Civil penalties would also be assessed. The New Hampshire Supreme Court, however, recently declared that such a practice exceeded the Department's authority. ⁽⁵⁾ The Court held that the Department could issue a wage order only in response to a claim filed by an employee, or a claim specifically assigned by the employee, and could not issue such orders as part of its inspection. A bill has already been introduced in this legislative session to extend this authority to the Department.

C. Child Labor Laws

New Hampshire's Child Labor laws are found at RSA 276-A and Code of Administrative Rules Lab 1000. There are prohibitions based on the type of work and restrictions on the number of hours that may be worked. For the most part, the provisions of New Hampshire law are similar to the federal. Where applicable, the differences are noted below.

1. Types of Work

2. Hours of Work

3. Youth Certificates

4. Penalties

Under New Hampshire law, penalties of up to $1,000 per violation may be assessed. ⁽¹⁷⁾

D. Deductions from Pay

1. Salary Rule. The New Hampshire salary rule requires that salaried employees be paid their full salary with no deductions, for the entire pay period. This rule is more restrictive than the federal rule which prohibits deductions from weekly salary. ⁽¹⁸⁾

Exceptions - Deductions may be made in the following circumstances:

2. Regulation Lab 803.03 (d) specifically prohibits reduction in salary for any period where the employee notifies the employer that the absence is due to illness.

3. Withholdings from Wages. New Hampshire law also prohibits employers from withholding sums from employee wages except for certain purposes and with employee authorization. ⁽²⁶⁾ Authorized withholdings include:

E. Miscellaneous Provisions

There are a number of other unique provisions in New Hampshire.

1. Meal Periods - RSA 275:30-a states that an employer may not require an employee to work more than 5 consecutive hours without a 30 minute meal break, unless it is feasible for, and the employer permits, the employee to eat while working. Although there is no requirement to provide a paid meal period, if the employee is required to eat while working, he/she will be entitled to pay.

2. No Smoking Discrimination - RSA 275:37-a provides that employers from requiring as a condition of employment that employees, or applicants, abstain from using tobacco products outside of work. However, this does not prevent employers from enforcing no smoking rules within the workplace.

3. Payment of Wages - RSA 275:43 requires that employees be paid within 8 days (including Sunday) after the expiration of the week in which the work in performed. Any employer who wants to pay on a less frequent basis must obtain the approval of the Commissioner of the Department of Labor.

4. Call Back Pay - RSA 275:43-a requires employers to pay any employee who reports to work at the employer's request a minimum of 2 hours of pay.

5. Termination Pay - RSA 275:44 provides that employees who are being terminated must be paid all wages due them within 72 hours. If the employee voluntarily resigns, wages can be paid on the next regular payday unless the employee has given notice of resignation at least one pay period in advance, in which case the wages must be paid within 72 hours.

6. Access to Personnel Files - RSA 275:56 provides that all employees are entitled to a reasonable opportunity to inspect their files and may request copies of any part of their files. Employees are also entitled to submit a rebuttal to anything in the file with which they disagree.

7. Expense reimbursement - RSA 275:57 requires employers to reimburse employees for any expenses incurred by them in the course of their employment and at the request of the employer. Reimbursement must be made within 30 days of presentation by the employee of proof of the expense.

Notes:

1.     RSA 275:43, III and Rule Lab 803.04.

2.     RSA 275:53

3.     RSA 275:53,III

4.     RSA 275:51,V

5.     Labor Ready Northeast, Inc. v. N.H. Department of Labor, 147 NH 721 (2002)

6.     RSA 276-A:4, I

7.     RSA 276-A:3, V and Lab 1003.01

8.     RSA 276-A:4, III

9.     RSA 276-A:4, IV

10.     RSA 276-A:4, VI and VII

11.     RSA 276-A:11 and 13

12.     Lab 1002.03 (c)

13.     RSA 276-A:20

14.     RSA 276-A:4, II and 276-A:5, I and V

15.     RSA 276-A:4, VIII

16.     RSA 276-A:5, I

17.     RSA 276-A:7-a

18.     RSA 275:43-b

19.     RSA 275:43-b, I (a)

20.     RSA 275:43-b, I (b)

21.     RSA 275:43-b, I(c)

22.     RSA 275:43-b, I(d)

23.     RSA 275:43-b, I (e)

24.     RSA 275:43-b, II

25.     RSA 275:43-b, III