Long gone are the days when employers could prohibit employees from talking about their pay with each other, including bonuses, pay raise rates and/or paid benefits and/or to fire them for doing so. It is illegal for an employer to take any such action under NH law. The rationale behind RSA 275:41-b is to attempt to level the playing field when it comes to pay inequality in the workplace.
This is part 2 of a 2 part series. To read part 1, click here.
Now that you have read the top 5 NH Labor Law Violations, keep reading – you don’t want to get caught out on the last 5!: https://www.nh.gov/labor/inspection/violation-free.htm
This is part 1 of a 2 part series. To read part 2, click here.
At the end of 2017, the New Hampshire Department of Labor (DOL) published its annual list of “Top 10 New Hampshire Labor Law Violations.” While the list does not change that much from year to year, it is a good opportunity to review pay and record keeping practices to ensure compliance with NH law.
Yesterday Governor Sununu enacted his first law allowing gun owners to carry concealed loaded guns, without a license – effective immediately.
Prior to the this law, police chiefs and local officials had discretion to decide if someone was “suitable” to carry a loaded gun concealed. Now, if a person is not prohibited by state or federal law from possessing a gun, he or she can carry it concealed without a license. This means that an employee, who lawfully possesses a gun, could carry it concealed in her handbag, backpack, briefcase, or jacket, for example. Some employees may view this new law as permitting them to carry loaded concealed weapons into the workplace. That is not true. Continue Reading Conceal and Carry: License to Be Armed at Work?
With all of the focus on the uncertainty of federal employment regulations, state legislatures have been hard at work on proposed legislation and have flown a bit under the radar. Now is a good time to take a look at some pending bills in New Hampshire which could impact workplaces. There are a variety of important issues being discussed. Continue Reading New Hampshire Legislature Tees Up Workplace Laws for Debate
Annually, the New Hampshire Department of Labor issues a list of the top ten most frequent violations it sees in audits and claims filed before it. The list doesn’t change dramatically from year to year, but violations move up and down the list giving us a clue as to where the DOL may focus its enforcement efforts in 2017. So here we go….
- Failure to Secure and Maintain Worker’s Compensation Coverage for Misclassified Workers. The issue of employee misclassification has been a focus of both state and federal agencies for the past ten years. We have written many blog posts directing the attention of business to the issue of independent contractors and how difficult it is to meet the criteria set out by the various agencies who address it. This year, misclassifying workers and failing to provide worker’s compensation coverage for them is at the top of the list.
- Failure to Pay All Wages Due for Hours Worked. Employers must be very cognizant of making sure that their employees properly record their hours worked and that employees are paid for all time. Approximations, auto-deductions, and flat time entries are insufficient. Non-exempt employees must record, time in, out for lunch, back in and out for the day as well as time spent answering calls at night, stopping at the post office on the way home and checking email on weekends.
- Failure to Have a Written Safety Plan, Joint Loss Management Committee and Safety Summary Form on File. All employers with 15 or more employees must comply strictly with RSA 281-A:64 and the related regulations.
- Employing Illegal Aliens (Undocumented Workers). Although this issue is typically within the purview of the federal government, DOL inspectors will review I-9’s and supporting documentation during audits and cite employers for missing or incomplete forms.
- Failure to keep accurate records of all hours worked. Similar to number 2 above, the DOL frequently cites employers for failing to maintain accurate documentation of time work and then to follow the legal requirements for paying employees. Non-exempt employees are entitled to a 30 minute unpaid meal break after five continuous hours of work, and employers should make sure that this time is accurately recorded. Similarly, employers may not dock employee pay for breaks of less than 20 minutes.
- Failure to Provide Written Notice to Employees of Their Wage Rate, Pay Period, Pay Day and Notice of Fringe Benefits At the Time of Hire and At the Time of Any Change. With careful education, this one has dropped down the list, but is still a frequent issue, especially for businesses which come from out of state. All of this information must be provided to the employee in writing, and the document must be signed by the employee and kept on file. This is a very NH specific requirement. A good way to handle this is to provide an offer letter which the employee needs to sign or at least a pay status document which can be updated with changes such as annual raises.
- Youth Employment Violations. The DOL is not forgiving of youth employment violations. Employers must make sure proper parental consent certificates or letters should be on file before a minor begins work. There are also very specific rules about hours and days of work and restrictions on dangerous occupations with which businesses should become familiar if they are going to hire younger workers.
- Failure to Pay Two Hours Minimum Pay on Any Day an Employee Reports to Work at the Request of the Employer. This is sometimes referred to as “show up pay” or the
“snow day” or “not enough work day” rule. If an employee is scheduled for work and comes in, he or she must be paid a minimum of two hours even if the business closes down for the day or sends the employee home due to lack of work. The employer can certainly require the employee to stay and work for the two hours.
- Improper deductions from wages. Not following list of approved deductions. New Hampshire has a very specific list of what deductions employers can make from wages and very clear rules on how and when those deductions may be taken. Employers should carefully review RSA 275:48 and the attendant regulation. Although the approved list has been expanded, the deductions must still be voluntary and in most cases authorized in writing by the employee.
- Failure to Pay Minimum Wage for All Hours Worked. It is hard for most to imagine that this is still an issue. New Hampshire follows the federal minimum wage ($7.25) which is lower than the minimum wage of all of our neighboring states. The difficulty typically comes into play in very specific scenarios such as commissioned inside sales employees, tipped employees and others who are paid at special rates.
This time of year is a good time to do some risk avoidance planning. It might be a good time to schedule a wage and hour audit or self-audit for January or February, once the dust settles on the New Year celebrations.
Earlier this week, the New Hampshire Supreme Court issued an opinion holding that the New Hampshire Law Against Discrimination, RSA Chapter 354-A, can impose liability upon individual employees for aiding and abetting discrimination in the workplace, and for retaliation against another employee in the workplace of a qualifying employer.
The issue came before the New Hampshire Supreme Court in the form of a certified question from the United States District Court for the District of New Hampshire, in connection with a case pending in that court. In the underlying case, a female employee brought suit against her employer for sexual harassment and retaliation under federal law (Title VII) and state law (RSA chapter 354-A). The plaintiff also sued an individual employee under state law. (Under current First Circuit precedent, there is no individual liability under the federal Title VII law.) Because the New Hampshire Supreme Court has never specifically addressed the question of whether individuals can be held liable under Chapter 354-A, the Federal Court asked for clarification on the issue.
The New Hampshire Law Against Discrimination identifies certain acts which, when committed by an “employer,” constitute unlawful discriminatory practices. The New Hampshire Supreme Court pointed out that the law also provides that “any act of aiding, abetting, inciting, compelling or coercing another to commit an unlawful discriminatory practice, or attempting to do so, or obstructing or preventing any person from complying with the [law] is itself an unlawful discriminatory practice.” The Court noted that the law allows an aggrieved person to purse a claim against a “person, employer, labor organization, employment agency or public accommodation alleged to have committed the unlawful discriminatory practice.” Since “person” is defined in the law as “one or more individuals, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, trustees in bankruptcy, receivers, and the state and all political subdivisions, boards, and commissions thereof,” the Court concluded that individuals can be liable under the New Hampshire Law Against Discrimination.
The New Hampshire Law Against Discrimination only applies to employers with six or more employees. The Court addressed the issue of whether an individual employee of an employer with fewer than six employees could be individually liable. The Court held that one can only be found liable for aiding and abetting discriminatory conduct that is illegal under the New Hampshire Law Against Discrimination. Therefore, if the conduct of a smaller employer is not actionable because the employer is exempt from the law due to its size, there can be no liability for aiding and abetting.
The Court came to a similar conclusion with regard to individual liability for retaliation under the New Hampshire Law Against Discrimination. The Court held that the statute’s language makes clear that “as is relevant in the employment context … any ‘person’ may be held liable for retaliation without regard to whether that person is also an ‘employer.’” As it did with the question of aiding and abetting, the Court found that “it would be illogical to hold individual employees liable for retaliation when they are employed by an employer that is exempt from liability” due to the size of the employer, and accordingly, the Court held that only individual employees of qualifying employers (i.e., employers with six or more employees) could be held liable for retaliation.
This week’s holding brings New Hampshire law in line with existing law in the neighboring Bay State on the issue of individual liability. Under the Massachusetts anti-discrimination statute (G.L. Chapter 151B) “any person, whether an employer or an employee or not,” may be held liable for aiding, abetting, inciting, compelling or coercing the doing of any of the acts forbidden under the law.
The case is U.S. Equal Employment Opportunity Commission, et al. v. Fred Fuller Oil Company, et al., Case No. 2015-0258 (Feb. 23, 2016). A copy of the opinion can be downloaded at the Court’s website.
SB 417, currently pending in the New Hampshire Senate, seeks to amend RSA 329 by adding a provision which would make it unlawful to prevent a physician from leaving one practice or hospital and setting up shop just a few miles away in competition with his or her former employer. The bill is concise and states as follows:
Any contract or agreement which creates or establishes the terms of a partnership, employment, or any form of professional relationship with a physician licensed by the board [of medicine] to practice in this state, which includes any restriction to the right of such physician to also practice medicine in any geographic area for any period of time after the termination of such partnership, employment, or professional relationship shall be void and unenforceable with respect to said restriction; provided, however, that nothing herein shall render void or unenforceable the remaining provision of such contract or agreement. The requirements of this section shall apply to new contracts or renewals of contracts entered into on or after the effective date of this section.
The Bill was initially introduced and referred to the Senate Commerce Committee but has since been transferred to the Health and Human Services Committee for follow up. There are no scheduled hearings.
A legislative change of this nature will be of interest to hospitals, physician practices and individual physicians, each likely having significantly different feelings about whether the amendment is a good or bad thing. Many would argue that such provisions have generally been deemed unenforceable, at least with respect to new patients, since the 1997 case of Concord Orthopaedics v. Forbes was decided by the New Hampshire Supreme Court. However, passage of this legislation would put any doubt to rest.
Those who have an interest in this issue should keep a watchful eye on this bill and consider contacting their own Senators or members of the committee to express their thoughts. Following pending legislation can be accomplished by clicking here and inserting the bill number where indicated.
Recently enacted House Bill 2 includes a tax amnesty plan for all New Hampshire taxes collected by the Department of Revenue Administration. This is the first New Hampshire general tax amnesty program since 2001 and includes taxes such as the Business Profits Tax, the Business Enterprise Tax, the Real Estate Transfer Tax, the Interest and Dividends Tax and the Meals and Rentals Tax. Under the program, a taxpayer who pays all unpaid taxes between December 1, 2015 and February 15, 2016 will receive amnesty from all penalties and all interest in excess of 50% of the applicable interest rate. Amnesty applies even if the Department of Revenue Administration has not assessed the tax or if the assessment is, or will be, appealed. A taxpayer who has not filed a return can participate in the amnesty program by filing the missing return and paying the associated tax by February 15, 2016. No special form or application is required to request participation in the amnesty program. The Department of Revenue Administration intends to place an online interest calculator on its website to facilitate amnesty filings.
House Bill 2 also includes a provision requiring mandatory penalties for a taxpayer owing taxes due on or before December 31, 2015 who does not participate in the amnesty program. The mandatory penalty provision will apply on and after March 1, 2016. The mandatory penalty provision prohibits “the department or any administrative tribunal or court with jurisdiction” from waiving, abating or reducing a penalty for any reason on taxes due before December 31, 2015. The Department has taken the position that the mandatory penalty provision does not prohibit the reversal of an improperly assessed penalty on appeal. The Department has published Technical Information Release 2015-006 describing the amnesty program. This Release is available at http://revenue.nh.gov/tirs/technical-releases.htm.
House Bill 2 also revises RSA 21-J:3 by adding a provision requiring the Department to implement a Voluntary Disclosure Program. Under the Disclosure Program, the Department will waive penalties for any taxpayer that self-discloses a failure to file required tax returns. Several years ago, the Department began an informal disclosure program. Since then, it has formalized the program. Thus, the statutory revision will not change Department procedure, but provides authorization for the Department to provide a disclosure program. Under the existing program, a self-disclosing non-filer agrees to file returns for the past three years in exchange for penalty relief and no requirement to file earlier returns. Note that as of March 1, 2016, the mandatory penalty provisions in the amnesty program will prevent waiver of penalties for voluntary disclosures of taxes due on or before December 31, 2015.
You have probably heard that effective July 1, 2015, Massachusetts enacted a new sick time law. There has been much discussion about its impact on companies located in Massachusetts. However, one aspect that has been overlooked is its impact on out-of-state businesses which have employees in Massachusetts. Any company with employees performing work in Massachusetts must consider this issue or face the consequences of non-compliance with the law.
The new law applies to businesses with employees whose “primary place of work” is Massachusetts. The final regulations of the Earned Sick Time Law, M.G.L. c. 149, § 148C, specify that an employee does not have to spend 50% of his/her work time in Massachusetts for it to be considered his/her primary place of work. Click here to read the final rule.
The regulations give the following example: A painter with a single employer works 40% of her hours in Massachusetts, 30% in New Hampshire and 30% in other states. Massachusetts is her primary place of work. In this example, all the hours the painter worked would be applied toward accrual of earned sick time, regardless of the location of the work or of the employer.
The first step in determining whether a company not located in Massachusetts is covered by the law is to review its total number of employees. Unpaid sick leave must be provided to employers with 11 or fewer employees, and paid sick leave must be provided to employers with more than 11 employees. The regulations state that in determining the number of employees for purposes of the sick leave law, “All of an employer’s employees, including full-time, part-time, seasonal, and temporary employees, whether working in or outside Massachusetts and regardless of their eligibility to accrue and use earned sick time, shall be counted for the purpose of determining employer size.”
Therefore, a New Hampshire (or any out-of-state) business that has employees who work primarily in Massachusetts must count all of its employees to determine whether it must offer paid or unpaid sick time to its Massachusetts employees.
For example, ACME manufacturing has its head office in New Hampshire where 20 people work, 5 employees in Connecticut and 2 salespeople in Massachusetts. The 2 salespeople in Massachusetts report to the New Hampshire head office, but primarily work in Massachusetts. What is ACME’s obligation under the Massachusetts sick leave law? Answer: ACME must count all employees to determine whether it must offer the 2 salespeople unpaid or paid leave. In this case, ACME has 27 employees and must offer paid sick leave to its 2 salespeople in Massachusetts and otherwise comply with that law as to those 2 employees.
My colleague Adam Hamel has written several blog posts (link #1, link #2) about compliance with the new law. However, businesses with questions about the new law are strongly encouraged to consult with legal counsel to determine what, if any changes, must be made to their existing sick leave or paid time off (PTO) policies and whether the safe harbor applies.