When many employers worry about wage and hour issues, their angst concerns staying on the good side of the U.S. Department of Labor by complying with federal wage and hour laws such as the Fair Labor Standards Act. However, a New Hampshire employer, or an employer doing business in New Hampshire, should also be concerned about New Hampshire's separate wage and hour laws that are enforced by the New Hampshire Department of Labor ("the NHDOL").
As many New Hampshire businesses can confirm, a New Hampshire employer may have more contact with, and more scrutiny from, the NHDOL than its federal counterpart. The NHDOL enforces a comprehensive set of statutes and regulations that impose legal requirements on employers, ranging from requirements concerning the payment of wages, to protections for whistleblowers, to an employer's obligations concerning personnel files.
In attempting to understand and comply with New Hampshire's wage and hour provisions, sometimes it's instructive for an employer to learn from the painful mistakes of others. Our firm, with the assistance of NHDOL Inspection Division Administrator Cynthia Flynn, has again this year compiled a list of the ten most common wage and hour offenses that came before the NHDOL during the last year. We think it is helpful to know what NHDOL is looking for and what they are finding in their inspections of New Hampshire employers. In reverse order, here are the ten most common mistakes made by employers in 2006. After each entry, we have provided a citation to the New Hampshire statute and any corresponding NHDOL regulations that provide instruction about what an employer should do to avoid making the same mistake in the coming year.
10 MISTAKES TO AVOID IN 2007
10. Failure to provide written notice to employees of their wage rate, pay period, pay and description of fringe benefits, including any changes. RSA 275:49 and Lab 803.04
9.Misclassifying employees as independent contractors. RSA 275:42, II and Lab 803.01
8. Failure to keep accurate records of all time worked. RSA 279:27 and Lab 803.04
7.Failure to compensate employees who take work breaks shorter than 20 minutes in duration. RSA 275:43 and Lab 803.05
6. Failure to pay wages by automatically deducting for lunch periods not taken. RSA 275:43,I and Lab 803.05
5. Failure to pay 2 hours minimum pay at his/her regular rate of pay on a given day that an employee reports to work at the request of the employer. RSA 275:43-a and Lab 803.04(h)-(j)
4.Illegal deductions from wages. RSA 275:48 and Lab 803.03
3.Failure to pay employees final wages, in full, when due. RSA 275:44 and Lab 803.02(e)-(g)
2.Employing illegal aliens (not having proper documentation). RSA 275-A:4-a
1.Illegal employment of workers under 18 (not having proper paperwork, hours violations, or working in a hazardous environment). RSA 276-A and Lab 1000
Among other enforcement tools, the NHDOL has the authority to issue wage adjustment orders ( orders to pay employee wages they assess as due) and civil monetary penalties to employers who fail to comply with New Hampshire wage and hour requirements. The maximum civil penalty per cited violation ( per violation/employee, per day) just increased on January 1, 2007 from $1,000 to $2,500. These fines and assessments can add up fast. It is therefore essential for New Hampshire employers to know their obligations and avoid these common mistakes and their consequences.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.
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