Preparing to Implement ObamaCare

Slides from the previously mentioned Preparing to Implement ObamaCare webinar offered through USLAW Edunet are now available for download as a PDF from the gcglaw.com website at this link: Preparing to Implement ObamaCare.

The Patient Protection and Affordability Care Act (also known as ObamaCare) takes effect January 1, 2014. New Hampshire plans to participate in a state/federal partnership exchange. New Hampshire employers, please call to discuss your company's approach to the new law or help with determining if the new law pertains to your business.

Implementing Obama Care: Free Webinar for Employers on April 30th

I am pleased to be a co-presenter at the upcoming USLAW Employment Edunet Webinar, Preparing to Implement ObamaCare, on Tuesday, April 30, 2013. This free webinar will review the major provisions of the Patient Protection and Affordable Care Act (PPACA), which is commonly referred to as "ObamaCare."

We will help you to determine if the new law applies to your business, and if so, and how to determine if you will decide to comply or pay the resulting penalties for non-compliance. For more information on the information covered and to register for this event, please click on: NH Employers, Are You Ready for Obama Care?

NH Employment Legislation: Bills That Could Impact Your Business in 2013-14 Session

New Hampshire business owners and HR managers should be aware of several employment related bills before the New Hampshire Legislature in the 2013-14 session. 

Pay close attention to the following pending legislation that could impact your business in a variety of areas.

1. Minimum wage: (HB241 and HB127) – If passed would raise the minimum wage by either $2.00 or by 0.75 cents per hour depending on which law is passed. Currently, NH minimum wage is based on federal minimum wage. For those NH businesses that employ minimum wage employees, the passage of this law would negatively impact your bottom line both in regular and overtime wages.

2. Worker’s Compensation: (HB171) – This change to law would impose a mandatory fine of $2,500 if an insurance carrier or self-insured employer fails to make worker’s compensation payments within 21 days of the award of benefits. Currently, the assessment of a potential fine is left to the discretion of NH DOL.

3. Unemployment Security: (HB360) –  This proposed change to the law will significantly shift liability for repaying NH Employment Security when an employee/claimant receives money from an arbitration award, back pay, settlement or jury verdict. Currently, the employer is responsible for any repayment. This change shifts the responsibility to both parties and gives NH ES power, through civil action (law suit), to reduce the claimant’s future benefits and/or to hold back employer’s adjustments and refunds in order to recoup the overpayment.  Overall this law is favorable to businesses because the employee will be responsible for repayment as well.

4. Unemployment Security: (HB246) – This revision to the current law would impose a mandatory criminal offense provision if an employer makes false statements or withholding documents from NH Employment Security.  Employees who file NH ES paperwork must be mindful that they will be held criminally liable if they make any false statements to NH ES.

5. Immigration: (HB249) – This new law Would mandate public employer participation in the federal E-Verify program (confirms work eligibility). In addition, contractors and subcontractors who have contracts with public employers must participate. If the sub and/or contractor do not comply, then the contract will be cancelled and a 3-year ban will be imposed on future contracts with public employers. If you have a contract with a public employer this law will impact you directly and you will have to certify through E-verify that all of your employees are eligible to work in the US. Contractors and subcontractors could lose significant business if non compliance.

6. Credit Checks: (HB357) – This new law would ban credit checks unless a state or federal law specifically requires credit checks. There are only a few instances in which the law currently requires credit checks.therefore, this new law would make them illegal in most instances. Please keep in mind that even if state law requires credit checks, it could still be a violation of federal law to make employment decision based on credit check results.

7. Social Media: (HB379) – This new law would make requiring disclosure of social media passwords illegal. It would ban employers from requiring this disclosure from potential or existing employees. A few states have passed similar laws protecting an individual’s right to privacy in their private social networking sites.

While not all of the proposed legislation is bad news for businesses, several would have a negative impact. Businesses still have an opportunity to get involved in this legislation where it is in their best interest! Please contact me for further information or regarding opportunities to get involved.

US DOL Fines Bank Over $1 Million in Overtime Back Wages

Recently, the US DOL (jurisdiction over wages and unpaid overtime) recovered over $1 million dollars in overtime back wages for 392 First Republic Bank employees located in 5 states (California, Connecticut, Massachusetts, New York and Oregon). (See: US DOL News Release.) The US DOL investigation revealed that the bank wrongly classified those employees as exempt from overtime in violation of the FLSA.

Remember, the FLSA defines the categories of employees and the criteria as to whom may be classified as exempt from overtime. Those categories are: executive, administrative, professional, computer, outside sales, and highly compensated. (See: US DOL Factsheet: Exemptions.) If an employer bases its classification decision solely on the employee's job title or even job description, it is likely to run afoul of the FLSA and could face hefty overtime back wages fines. A much more careful analysis is required.

This is a great reminder to companies that they should audit employees classified as exempt from overtime by consulting the FLSA criteria, understanding employees' actual job responsibilities and actual work done and then consult with employment law counsel to confirm that the classifications comply with the FLSA. Take measures in the New Year to avoid this situation and/or to mitigate damages — it is well worth the effort.

Federal Court Includes Overtime in Award of Backpay in FMLA Case

If you run a business with 50 or more employees, your company is covered by the Family and Medical Leave Act (FMLA) and you should be aware that the First Circuit Court of Appeals decided for the first time that an employee's lost overtime pay can be included in an award of back pay under the FMLA. The ruling in Pagan-Colon v. Walgreens of San Patrico, Inc. is consistent with other federal employment laws that include payments for overtime work that an employee would have performed but for her employer's violation of the law.

The Court also decided that liquidated damages (double lost wages) was not available because the employer acted in good faith and had reasonable grounds for believing its actions were not in violation of the FMLA. In finding good faith, the Court took into consideration that the employer sought legal advice about its obligations under the FMLA, invited the employee to apply for disability leave, reconsidered its decision to terminate the employee, and there was evidence of a communication breakdown that prevented management from learning the facts of the employee's hospitalization and absence from work when making the decision to terminate his employment.

This case puts companies on notice that if an FMLA violation occurs, damages can be costly (and now include overtime pay), but might be limited by taking affirmative measures — like consulting with legal counsel — that might prove that it was acting in good faith and had reasonable grounds for the employment decision.

See related post: Are Your Employees Really Exempt from Overtime Pay? Determining Overtime Exemptions in New Hampshire

Revised NHDOL Independent Contractor Test Is Shorter, Not Sweeter

Earlier this year, I blogged about the unnecessarily complex state of independent contractor law in NH. One of NH's multiple administrative tests has been reduced to 7 points: the NH DOL independent contractor test has been reduced from a 12 point test to a 7 point test. It might be tempting to conclude that fewer requirements to a test make it easier to pass — not so in NH. For a start, there are still 7 requirements to the NH DOL test — remember that that NH DOL has authority over:

• wage and hour
• worker's compensation
• youth employment
• minimum wage and 
• whistleblower claims. 

In addition, NH Employment Security has its "A, B, C" independent contractor test and the NH Commission for Human Rights (authority over allegations of harassment, discrimination and retaliation charges) has its own test.

Even if the revised NH DOL independent contractor test provides fewer hoops to jump through, it is not the same test for unemployment compensation or discrimination charges, or the IRS (did I mention its 14 point test?). It is likely that businesses run afoul of one test, but comply with another — it is just a matter of which state agency will receive your check.

For a closer look at the 7 points, you can read my full article on NH's Revised Independent Contractor Test. This is one area of law where a consult with an employment attorney may well pay for itself in avoiding fines.

Social Media as a Hiring and Termination Tool — Guidance and Precautions

I recently presented on “Social Media as a Hiring and Termination Tool” at the NH Bankers Association Insurance Trust member meeting held October 16th in Concord. The presentation covered some of the limits and repercussions employers could face if they use social media to learn more about applicants and employees. With 54% of Americans using social media, an employer may be tempted to use them as investigative tools. However, employers should be aware that the National Labor Relations Board (NLRB) has issued important decisions related to social media, including ones that could result in the reinstatement of terminated employees.

To learn more, click on: NLRB's social media report.

If you are a NH employer looking for advice on this topic, or if you would like a presentation on this topic to your industry group, please contact me to discuss.

Letting in Service Animals under the ADA

I was in a large hotel chain recently and came across several well placed signs stating: NO PETS. It got me thinking about the Americans with Disabilities Act (ADA) and service animals, and whether the hotel manager realized that the NO PETS policy isn’t unequivocal. If your business is one where the public has access (such as a restaurant, hotel, school, town office, bar), it is important to understand a few basics about when animals must be admitted.

ADA Requirements for Service Animals

For a start, service animals can be dogs or miniature horses only — no monkeys, goats or snakes (thank goodness!). See ADA Revised Requirements. The service animal has to be individually trained to do work that is directly related to the individual’s disability. For example, a service animal could help an individual with a psychiatric condition by preventing or interrupting impulsive or destructive behaviors or getting/reminding about medications. Providing emotional support, well-being, comfort, or companionship by itself does not constitute work or tasks.

In the case of a psychiatric condition, it may not be obvious what work or task the animal provides. Here are the only 2 questions that you may ask:

1. Is the animal required because of a disability; and
2. What work or task has the animal been trained to perform.

Staff cannot ask about the nature or extent of the individual’s disability or require medical documentation, a special ID card or training documentation, ask that the animal demonstrate its ability to perform the work or task or require the animal to wear a vest.

Assuming the individual answers the questions above satisfactorily, they then must abide by the following rules:

• The service animal must be on a harness, leash or other tether unless the individual is unable to use them because of his/her disability or unless the use would interfere with the animal’s safe, effective performance of work or tasks. If they cannot be used, the individual must be able to control the service animal through voice, signals, or other effective means.
• The service animal can be removed if it is not housebroken or if the animal is out of control and the individual does not take effective action to control it. 

Put It in Writing

Any NO PETS policy should provide for an exception for service dogs/miniature horses in writing so that disabled individuals do not assume that they will not be accommodated, and so that your staff understands the ADA exception for service animals. If in doubt about how to handle the situation, give your employment lawyer a call to talk you through the process.

New Non-Competition and Non-Piracy Agreements Law Requires Disclosure or Agreements Will Be Unenforceable

Generally, New Hampshire looks with disfavor on non-competition agreements and this new law (HB 1270), by requiring disclosure at the outset, makes it even more likely that businesses may find themselves with unenforceable agreements. Effective July 14, 2012, businesses must provide copies of any non-competition and non-piracy agreements to potential employees or employees who are making changes in their job classifications prior to or at the same time as the change in employment occurs.

The law is clear that if the agreements are not in compliance, then they will be void and unenforceable. Before hiring and/or changing existing employees' job classifications, take the time to consider whether you will want them to sign a non-competition or non-piracy agreement. By doing so, your business will have a better shot at having an enforceable agreement assuming the restrictions are not overly broad. Run these agreements by an employment lawyer to assess the likelihood of enforceability.

Hiring Employees for Your NH Business? Make Sure To File and Distribute the Correct Documents

Deciding to hire employees for your NH business is an exciting step, but can be overwhelming given the number of employee forms, documents and posters required by the NHDOL, NHES and NHCHR (not to mention Federal agencies). Here is a brief look at employer requirements with helpful links to the agency forms and posters you will need. Depending on the size of your business and the circumstances of an employee’s employment, all of these documents may not be required — ask an employment lawyer for advice and get off to the right start! 

NH Agency Reqirements and Forms
New Hampshire Employment Security (NHES) requires that businesses submit the following forms when hiring employees:

• Employer Status Report
• New Hire Report Form
• Wage and Tax Report (quarterly).  
• Links to these NHES forms.

Keep in mind that the term “New Hire” has legal meaning that can include services provided by a sole proprietor or independent contractor (see my independent contractor blog below). Therefore, businesses should consult with employment counsel to make sure that the correct documents and information are submitted in a timely manner (e.g., the New Hire Form must be submitted within 20 days of hiring an employee or of qualified services being provided).

Worker’s compensation insurance coverage is required for businesses employing one or more full- or part-time employees. Before deciding that your employees are independent contractors, consult with employment counsel because a misclassification can be costly: a daily fine per uninsured employee can be assessed. Your worker’s compensation insurance carrier is responsible for filing the notice of coverage with New Hampshire Department of Labor (NHDOL). However, businesses should double-check that has been done by going to the NHDOL website and entering the company’s name in the Verification of Coverage field.

Internal Documents
Businesses must complete a W-4 for each employee and a Form I-9 with correct supporting documentation. An incomplete or incorrect Form I-9 can result in NHDOL fines. Businesses are required to keep accurate, written, employment records such as:

• Written notice to employees about rate of pay, how they will be paid (hourly or salary, commissions, piece rate and/or flat rate), when they will be paid and whether and which benefits they will receive. Employees should sign the notice to minimize any disputes later on. The form should be updated and resigned by employees when there is a change to wages and/or benefits.
• Payroll deductions other than those for tax purposes must be in writing and signed by the employee.
• A written waiver signed by the employee must be on record, if an employee will be working through his or her lunch period.
• Employees must be paid weekly, unless a permission request is sought and received from NHDOL.
• Businesses are responsible for keeping track, in writing, of the hours employees work. Any changes to an employee’s time card should be acknowledged by the employee in order to minimize disputes about hours worked later on.
• If you are employing youths (aged under 18), make sure that you are keeping the correct forms on file: Parental Consent Form  and/or Employer’s Request for Child Labor. Both forms may not be required and remember that there are certain prohibitions about the number of hours youths of a certain age can work and about the type of work they can perform.
• NHDOL also provides a helpful New Hire Checklist as a guide. 

NH Employment Posters
In addition, there are state and federal employment rights posters that must be posted in a communal area. Here are the links to posters required by:

• DOL State and Federal posters 
• Employment Security posters
• NH Commission for Human Rights.

Hiring employees and complying with NH’s multiple employment laws can be challenging; however consulting with an experienced employment lawyer who is familiar with and practices before NH state agencies will get your business off to a great start.

ADA Compliance Plan — Bankers Beware the Ides of March!

The Americans with Disabilities Act was amended to include requirements that ATM machines be accessible to blind or visually impaired customers. Generally, ADA-compliant ATM machines must be equipped with speech-enabled technology, headset jacks, and other items so visually impaired customers can use ATM machines without assistance. In order for banks to determine which ATM machines are even capable of being upgraded or need to be replaced to comply with the ADA requirement, they must draft and implement a compliance plan by March 15, 2012.

ADA ATM Compliance Plan
Your bank's compliance plan must include the following:

• An inventory of existing ATMs.
• A comparison of each ATM’s specifications to the 1991 ADA standards and 2010 ADA standards. Your ATM vendor should be able to help with the comparison and will be aware of the standards.
• A determination of the cost of each upgrade or replacement. Again, your ATM vendor will be able to provide this information.
• A budget, strategic plan, and schedule for achieving ATM accessibility; and
• An annual review – this is not a static plan.

The Exception - Undue Burden
The ADA does not require that under any and all circumstances, banks upgrade or replace immediately all of their non-compliant ATM machines if they can show that those changes would be an "undue burden." Undue burden means with "significant difficulty or expense" and factors to consider in making the subjective determination include the:

• Nature and cost of the action
• Overall financial resources of the site (bank)
• Number of person employed by the bank
• Effect on expenses and resources of the bank
• Legitimate safety requirements
• Geographic proximity and other relationships of the entity and
• Financial resources of any parent entity.

The aggregate number and cost of auxiliary aids may also influence the determination. One nuance to the compliance rule: if there are two ATM machines in one location (e.g., both located in a lobby), one has to be ADA compliant.

This is where the compliance plan is a necessary component of determining "undue burden:" it is only after the compliance plan has been established that banks can determine whether they can afford to take corrective measures all at once or according to the plan or at all. It is this document — the compliance plan — that banks would produce to the Department of Justice if it investigates an alleged non-compliant ATM machine. It is very important to understand that the compliance plan must be revisited at least on an annual basis because what was an undue burden one year might not be an undue burden the next. In other words, the compliance plan is not a one-shot deal.

Liability to Third Parties
If a third party — mall, movie theatre, gas station — has an ATM machine in its public location, it could be held liable for non-compliance, too. An indemnification agreement between the third party and the bank would not indemnify the third party as to the DOJ, but would likely put the hook on the bank for the third party's attorney’s fees and costs. Once the compliance plan is in place, the bank should contact any third parties that have one of its ATM machines and let them know when, according to the plan, the ATM machine will be compliant and that the compliance plan will be revisited annually. Implementing a compliance plan will also mitigate the impact of a DOJ action.

Reality Check
There is no question that banks must comply with the ADA/ATM requirements by putting a compliance plan in place by March 15, 2012: doing so enables the visually impaired to have the same access that other customers have. However, due to financial burdens and possible liability that may result, some banks are taking ATM machines out of service or are going to third party ATM machine vendors to avoid the cost of continuing compliance issues. These decisions can only be assessed properly once the compliance plan is in place.

Contact Beth Deragon for any questions about third party liability, obligations under the compliance plan, review of your plan, or ADA compliance generally.

2011 EEOC Employment Discrimination Statistics: Retaliation and Race Highest Percentage of Charges

Federal and State Anti-discrimination Employment Laws
Federal anti-discrimination and retaliation laws (enforced by EEOC) apply to employers with 15 or more employees (ADEA covers 20 or more employees). NH’s anti-discrimination and retaliation laws (enforced by CHR) apply to employers with 6 or more employees. Federal law protects individuals based on Age, Disability Genetic Information, National Origin, Pregnancy, Race/Color, Religion, Sex, and Sexual Harassment (“protected classes”). Equal Pay/Compensation is also covered under Title VII, the ADA and the ADEA. NH extends protection to employees and applicants based the federal protected classes, including sexual orientation and marital status.

EEOC 2011 Statistics
Overall, discrimination charges were up slightly from last year from 99,922 to 99,947. In terms of the volume of charges by protected class, the highest percentages were:

• Retaliation – 37.4%
• Race – 35.4%
• Sex/Gender – 28.4%
• ADA/Disability – 25.8%

However, it is important to note that the categories that increased in number of filings from 2010 were retaliation, disability, age, national origin and religion. Disability charges cited back impairments, orthopedic impairments, depression, anxiety disorder and diabetes most frequently.

The EEOC received 245 charges pursuant to the Genetic Information Nondiscrimination Act (GINA) (which completed its first year of enforcement), that prohibits discrimination on the basis of genetic information, including family medical history.

In terms of monetary damages for employees and applicants, the EEOC obtained a record $455.6 million ($51 million increase from last year). ADA charges resulted in the highest amount of monetary relief – increased by almost 35.9% to $103.4 million compared to $76.1 million in 2010.

What Can Employers Learn from the 2011 Statistics?
The EEOC’s draft Strategic Plan states that economic challenges may increase the number of charges filed and may decrease in other types of charges:

“For example, while most employers honor their responsibilities under the law, some may begin enacting policies to save time or money that have an unlawful disparate impact on certain protected groups, e.g. bans on hiring currently or long-term unemployed workers, which may impact racial and ethnic groups with high unemployment, and changes in medical leave policies, which may impact persons with disabilities. Moreover, some employers may cut back on human resources personnel or be less willing to implement best practices to ensure compliance with equal employment opportunity laws, which will impact the success of EEOC’s education and outreach efforts and lead to an increase in charges.”

Although economic factors may impact the number of charges filed and employers’ ability to apply resources toward preventative measures, employers must be aware of their obligations under employment discrimination laws, especially providing reasonable accommodations to employee under the ADA. Retaliation charges might be decreased or better defended where good employment practices are in place including handbooks, properly completely employee evaluations, and maintaining disciplinary documentation for verbal and written warnings.

For more information, see: Private Sector Bias Charges Hit All-Time High, and EEOC Charge Statistics 2011.

Classification of Independent Contractor in NH Is Risky Business

Independent contractors are often an essential component of a specialized, dynamic workforce and a growing business. Using an independent contractor may seem to be a perfect solution for additional employment needs — with all parties happy until the employment relationship goes wrong. It may be because the independent contractor is not getting the job done, or sometimes there simply is no more work to be done. Whatever the reason, when the relationship ends, your former “independent contractor” might be looking for unpaid wages, unemployment compensation, worker's compensation, or for money via a claim of discrimination or harassment.

Businesses beware. Classifying an individual as an independent contractor is fraught with risk because misclassification can lead to fines, worker’s compensation violations, unemployment compensation and tax fines – to name a few. New Hampshire law does not make it easy for businesses to determine whether an individual is an employee or independent contractor: three separate NH agencies (NH Department of Labor, NH Commission for Human Rights and NH Employment Security) use different tests to determine an individual’s employment status. The selection of the appropriate test depends on the purpose for the determination or in which administrative agency the matter is pending.

Both state and federal agencies have been focusing aggressively on the issue of misclassification of independent contractors. This has resulted in costly fines and back payments for businesses that have wandered into this area of the law and applied the wrong independent test. It is worth consulting a professional to conduct an independent audit of individuals currently classified as independent contractors to ensure that your business is in compliance with NH’s myriad of independent contractor tests.

For more information on NH's three tests for classification of independent contractors, please see my article: Determining Independent Contractor Status in NH on gcglaw.com, or contact me directly.

Are Your Employees Really Exempt from Overtime Pay? Determining Overtime Exemptions in New Hampshire

The Fair Labor Standards Act (FLSA) is administered by the US Department of Labor and regulates minimum wage and overtime requirement. The FLSA overtime regulation requires that any employee who works over 40 hours in a week is paid time-and-one-half. However, the FLSA exempts from that overtime requirement employees whose job duties and wages (at least $455 per week on a “salary basis”) meet the criteria of one of these exemptions:

• Highly Compensated Employees
• Computer Employees
• Outside Sales
• Professional
• Executive; or
• Administrative.

If an employee meets the criteria for an exemption, then the employee may be classified as exempt and the employer will not have to pay overtime for time that employee works over 40 hours per week.

How can you be sure of being in compliance with the FLSA?

A determination must be made as to whether your employee’s job responsibilities meet the criteria for an exemption; an incorrect analysis could create liability for unpaid overtime. A thorough audit should be conducted of all currently exempt employees. This requires more than simply reading job descriptions and performance evaluations to ascertain an employee’s primary duty, but should include interviewing the employee to confirm actual job duties performed which may not be reflected in existing job descriptions.

After the audit, if it is determined that an employee has been misclassified as exempt and is entitled to overtime, it is advisable to consult with an employment law attorney to develop a compliance strategy and policies that will help to mitigate the cost of overtime going forward. Policies might include requiring prior authorization of overtime or applying the salaried-non-exempt/fluctuating work week method of pay. Although some action must be taken to avoid potential damages for violation of the FLSA, it is vital that the action be reviewed by a professional to ensure that it provides the best solution without exposing the business to further liability.

See related article for banks and financial services companies: FLSA Interpretation Requires Banks to Take Action Regarding Loan Officer Overtime Pay.

Starting a Business in NH? What Employment Forms Need To Be Submitted and To Whom?

When starting a business in NH, there are a couple of agencies that require initial form filings related to employment law.

The NH Department of Employment Security (NHES) requires that the following forms (which you can download here) be filed:

• Employer Status Report
• New Hire Report Form
• Wage and Tax Report (quarterly).

If your new business has employees who are not corporate officers, then it must have worker’s compensation insurance. If any employees work prior to the effective date of the worker's compensation insurance coverage, the NHDOL can assess a daily fine. The company's worker's compensation insurance carrier is responsible for filing the notice of coverage with the NHDOL. However, the company should do its due diligence by double-checking that the notice has been filed by going to the NHDOL website and entering the company name in the Verification of Coverage.

There are many other compliance issues related to taxation, immigration and employment rights that should also be retained and posted. For example, employers must complete correctly:

• W-4 for new employees;
• Form I-9 and supporting documents must be maintained for each employee;
• Written notification to each employee (and signed by employee) regarding rate of pay and benefits should be on file.

In addition, there are also Federal and State employment rights posters that must be posted in the workplace.

NH is a great place to start a business and it is worth consulting with a professional to make sure that your employment practices comply with NH and Federal employment laws to ensure that your company is off to a great start.

9 Ways To Avoid NH Labor Law Violations

The New Year is a great time to resolve to audit your company’s employment documents and practices for compliance with the NHDOL labor laws. Pay special attention to the items listed below as they are most likely to give rise to labor law violations that can result in costly fines, including liquidated damages (if employer willfully and without good cause withheld wages).

• Youth employment: Prior to beginning work, have proper paperwork for workers under 18. Youth workers are not allowed to work in hazardous environments and are restricted in the number of hours and days of the week under state and federal law.
• Permission to work in US: Confirm that new employees have authorization to work in US with correct supporting documentation (specified on Form I-9). For I-9 must be completed correctly for all employees to be in compliance with NHDOL rules.
• Notice of conditions of employment: Provide written notice of rate of pay, pay period, pay day and fringe benefits (including but not limited to vacation, sick and bonuses). Bonus plans should include discretionary language and limitations. Any changes to the terms and conditions of employment must be in writing and should be signed by employees.
• Hours worked: Keep accurate records of hours worked, including lunch breaks. After 5 consecutive hours of work, employees must be allowed to take a 30 minute (unpaid) meal break. Any changes to an employee’s time sheet must be acknowledged by the employee. Meal waivers are permitted, but must be in writing and noted on time records.
• Safety plans: A joint loss safety committee is required for employers with 5 or more employee. A written safety plan must be filed with the NHDOL if a company employs 10 or more employees. Make sure the plan and reports are current and meet legal requirements.
• Payment of wages: Pay wages for hours worked, including fringe benefits and breaks less than 20 minutes. Employees may not be paid less than minimum wage and must be paid weekly, unless the company has an agreement with the NHDOL.
• 2-hour minimum pay rule: Pay 2 hours minimum pay at employee’s regular rate of pay on a given day that an employee reports to work at the request of the employer. If employer’s notice to employee not to come to work is unsuccessful, generally, the employee must be paid for 2 hours work.
• Deductions from wages: Do not make deductions from wages without confirming that the deductions are permissible under NH law. Agreements to make deductions must be in writing that also has certain legal specification.
• Independent contractors: Before classifying an individual as an independent contractor, do the appropriate analysis - NHDOL, NHES and NH Commission for Human Rights have separate tests (so does the IRS). Misclassification could lead to costly violations, including fines for lack of worker’s compensation coverage (calculated on a daily basis) and back taxes. (See related blog post: Classification of Independent Contractor in NH Is Risky Business.)

Welcome to NH Employment Law Blog for Business!

This blog is for New Hampshire businesses. It is a resource of employment law issues that effect NH businesses in these challenging economic times. Readers will receive an overview of employment issues, but should remember that due to the complexity and intersection of many federal and state employment laws, businesses should always seek legal advice prior to taken action. I hope that you find the blog useful and look forward to your suggestions for topics! To be alerted by email when new posts are added to the blog, please subscribe using the sign-up box in the right column.