Labor and Employment Law Overview: New Hampshire
Federal law and guidance on this subject should be reviewed together with this section.
Author: Susan Tahernia
- State law provides guidelines to help employers determine who is an employee and who is an independent contractor. See Employee Classification.
- New Hampshire employers are prohibited from discriminating against employees based on a variety of factors. See Unlawful Discrimination.
- Under certain circumstances, state law offers protection to employees who report violations of the law, participate in an investigation concerning violations of the law or refuse to participate in illegal conduct. See Whistleblower Protection.
- New Hampshire employers are required to pay employees a minimum wage and overtime. See Employee Compensation.
- State law restricts when employers may make wage deductions. See Employee Compensation.
- Under certain circumstances, employers must provide a 30-minute meal break for employees. See Hours Worked.
- In certain situations, New Hampshire employers are required to provide notice of mass layoffs. See Termination of Employment.
- Certain employees are entitled to health care continuation after a qualifying event. See Termination of Employment.
Medical Examination Fees
Employers may not require applicants or employees to pay for employment related medical examinations. See +NH Rev. Stat. § 275:3.
Employee Versus Independent Contractor
Misclassifying employees is, arguably, one of the biggest compliance issues faced by HR and mistakes in this area can be costly.
The New Hampshire Department of Labor has developed a notice that must be posted in a conspicuous place that explains how the state establishes whether an individual is an employee or independent contractor. The criteria include the following:
- Possession of a federal employer identification number;
- Having control over the performance of the work; and
- Having control over the time the work is performed.
It is important that HR reviews the notice and confirms the employer's independent contractors meet the requirements.
New Hampshire Commission for Human Rights
The New Hampshire Commission for Human Rights (Commission) is the primary civil rights agency in the state and is responsible for enforcing the New Hampshire Law Against Discrimination (NHLAD). The Commission consists of seven commissioners appointed by the governor who, collectively, have the power to adopt rules to help facilitate the NHLAD's objectives. The commission also investigates claims of unlawful discrimination and has the power to decide those claims.
Protected Classes Under the New Hampshire Law Against Discrimination
The NHLAD recognizes certain protected classes not recognized under federal antidiscrimination laws. Specifically, the NHLAD prohibits state and local employers, and employers with six or more employees, from discriminating in employment based on the following:
- Pregnancy (includes medical conditions related to pregnancy);
- Marital status;
- Sexual harassment;
- National origin;
- Physical disability;
- Mental disability; and
- Sexual orientation.
See +NH Rev. Stat. § 354-A:1, et seq.
Equal Pay for Equal Work
Male and female employees performing the same, or comparable, work should be paid equal wages. Employers are permitted to base pay differentials on legitimate, nondiscriminatory factors (e.g., seniority, merit, etc.). See +NH Rev. Stat. § 275:37.
Employers are not allowed to discriminate against employees based on their use of tobacco products outside the scope of their employment. Employers may, nonetheless, institute policies regarding tobacco use in the workplace. See +NH Rev. Stat. § 275:37-a.
The state Whistleblowers' Protection Act provides protection to employees who do the following:
- Report violations of law;
- Refuse to execute illegal directives; or
- Participate in investigations or hearings.
Employees are protected under this law only if the employee first brought the alleged violation to the attention of a person with supervisory authority - unless the employee believes reporting to that person is futile. See +NH Rev. Stat. § 275-E:1.
State child labor laws place restrictions on the type of work a minor can perform and limitations on hours of work.
Payment of Wages
If employers pay any of the following as a matter of policy or practice, they become wages when earned:
- Vacation pay;
- Personal days;
- Holiday pay;
- Sick pay; and
- Payment of employee expenses.
Additionally, employees' wages should be paid within eight days of the work being performed. The Labor Commissioner may permit the payment of wages less frequently. Employers interested in having the Labor Commissioner consider a less frequent payment schedule, should make a written request setting forth the reason(s). However, wages must be paid at least once each calendar month.
There are certain circumstances, in which salaried employees need not receive their full rate of pay, including:
- Days the employee does not work;
- During a leave of absence under the federal Family and Medical Leave Act; or
- During a disciplinary suspension under the federal Fair Labor Standards Act.
Employees who report to work at their employer's request must be paid for a minimum of two hours of work at their regular rate of pay. If the employer tries to contact the employee before his or her arrival at work, and is unable to do so, the employee does not have to pay the two hours of wages. County and municipal employers are also exempt from these reporting pay requirements.
Under state law, an employer may only make deductions from wages when the following apply:
- The employer is empowered or required by state or federal law (e.g., for taxes); or
- The employee provides written authorization for a purpose that benefits the employee (e.g., an insurance premium or charitable contributions).
Employers must provide employees with a written statement of all deductions on each pay day.
The minimum wage rate under the New Hampshire Minimum Wage Law is $7.25 per hour. A separate minimum wage rate exists for employees who receive tips. See Employee Compensation > Minimum Wage: New Hampshire.
Nonexempt employees should be paid at the rate of time-and-one-half for all time worked in excess of 40 hours in any one week. See Employee Compensation > Overtime: New Hampshire.
Changes in Pay Rate
Changes in an employee's pay rate may not be retroactive and must comply with applicable law, including minimum wage laws. See Employee Compensation > Minimum Wage: New Hampshire.
"Day's Work" Defined
Unless expressly agreed to between an employer and an employee, or otherwise provided for under the law, a day's work means eight hours of actual labor. Employers may not require employees to make-up lost time (e.g., time off for a holiday) by working more than a regular day's work
An employer may not require employees to work more than five consecutive hours without granting them a 30-minute lunch or eating period, unless both of the following circumstances apply:
- It is feasible for employees to eat while doing their jobs; and
- The employer allows employees to eat while doing their jobs.
If the employer cannot allow a 30-minute eating period, employees must be paid for the time if they are eating and working at the same time. See +NH Rev. Stat. § 275:30-a.
Leaves of Absence
Crime Victim Leave
Employers with 25 or more employees must comply with the Crime Victim Employment Leave Act (CVELA). Under the CVELA, the following individuals may take unpaid leave for the purposes of attending legal proceedings or participating in investigative proceedings:
- An employee who is the victim of a crime or an attempted crime;
- An employee whose immediate family member is:
- A minor, and
- Is the victim of a crime or an attempted crime, and
- An employee whose immediate family member is a homicide victim.
State of Emergency Leave
Firefighters and members of a rescue squad or emergency medical services agency may take unpaid leave to respond to a public emergency. To qualify for state of emergency leave, the employee must have been called to service by the state or a political subdivision. See +NH Rev. Stat. § 275:66.
Termination of Employment
When an employee quits, resigns, or is suspended because of a labor dispute, wages must be paid by the next regular payday or, upon employee request, by mail. Employees who are fired must be paid in full within 72 hours.
Facility Closings- State WARN Act
New Hampshire Worker Adjustment and Retraining Notification Act requires all New Hampshire employers with 75 or more employees to issue a warning before closing facilities or laying off more than 250 full-time employees, or more than 25 employees if they make-up more than 33 percent of the employer's full-time workforce. See +NH Stat. § 275-F:1.
Continuation of Health Coverage
Employees working for smaller employers (i.e., employers with less than 20 employees) are exempt from the federal Consolidated Omnibus Budget Reconciliation Act (COBRA). New Hampshire's state continuation law, or its mini-COBRA law, applies to employers with less than 20 employees. The law allows eligible separated employees to elect to continue health care coverage for up to 18 months after the date their coverage would have otherwise ended due to a change in eligibility.
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