The New Hampshire legislature considered several workplace-related bills during the last (2004-2005) session. Some were perennial favorites (or clunkers); others were first time volleys. Before the session's recess in early summer 2005 most of the bills were either killed, sent to study committee or otherwise deferred. However, a few new laws, related to employment and workplace issues, were passed late in the session. They were then signed into law by the Governor. The most noteworthy of these bills, at least for employers and human resources professionals, are: HB329: the Crime Victim Leave Act; HB350: Changes to the State's Wage Protection Statute; and HB239: Changes to the State's Unemployment Benefits Laws. Each of these bills went into effect as law on January 1, 2006.
The following are highlights from each of these new laws. Employers should review, consider these laws and the impact on their workplaces, and then adjust their policies and procedures accordingly.
I. Changes to State Wage Laws: HB 350.
In response to employer confusion and complaints over the years, the New Hampshire Department of Labor introduced this bill which addresses the vexing issues of wage deductions. The new law provides for deductions from wages for: the repayment of loans to employees; the voluntary recovery/repayment of the accidental overpayment of wages; the voluntary recovery/repayment of certain tuition costs; and repayment of advanced vacation pay, PTO, earned time, personal time, annual pay, sick leave, and bereavement pay.
This was a bill that can best be described as a mixed bag for employers. That is because along with these provisions the New Hampshire Department of Labor sought and was granted new provisions in the enforcement side of the state's wage protection statute RSA 275:42 et seq. This new law:
1. Empowers the NHDOL Commissioner to hold hearings and investigate charges of violation of the labor protection statutes either on his or her own motion OR on an employee complaint;
2. Adds the Department of Labor as a party entitled to initiate a wage claim and extends the period in which to file a wage claim from 18 months to 36 months; and
3. Increases the civil penalties that the Commissioner may impose for wage and hour law violations from $1,000 to $2,500.
There are many conditions to the new wage deductions provisions. Here are the details:
Employers may deduct from an employee's wages for those specified reasons when the following conditions have first been satisfied.
1. Voluntary installment payments of legitimate loans made by the employer to the employee as evidenced by a document that includes the following
A. The time the payments will begin and end,
B. The amounts to be deducted, and
C. A specific agreement regarding whether the employer is allowed to deduct any amount outstanding from final wages at the termination of employment.
2. Voluntary payments for the recovery of accidental overpayment of wages when the following conditions are met:
A. The recovery is agreed to in writing,
B. The deduction for the overpayment begins one pay period following the date the parties execute the written agreement, and
C. The written agreement specifies:
- The date the recovery of the overpayment will begin and end.
- The amount to be deducted, which shall be agreed upon by the employer and the employee but which shall, in no event, be more than 20 percent (20%) of the employee's gross pay in any pay period.
- A specific agreement regarding whether the employer is allowed to deduct any amount outstanding from final wages at the termination of employment.
3. Voluntary payments for the recovery of tuition for non-required educational costs paid by the employer for the employee to an educational institution when the specific deduction is authorized in writing prior to the deduction as evidenced by a document that includes the following:
A. The time the payments will begin and end,
B. The amounts to be deducted, and
C. A specific agreement regarding whether the employer is allowed to deduct any amount outstanding from final wages at the termination of employment.
4. Deduction/Withholding for borrowed vacation and other leave time. This new law also now permits employers to withhold from wages amounts to repay the Employer for borrowed leave time. The new provision amends RSA 275:48, I by inserting after subparagraph (d) the following new subparagraph:
- The employer has a written request from the employee, made at the time of the original request without coercion or pressure, that authorizes the employer to deduct from the employee's final wages at the termination of employment any amount the employee may owe for voluntary payments for vacation pay, paid time off pay, earned time pay, personal time pay, annual pay, sick pay, sick dependent pay, and bereavement pay made pursuant to a written employment policy as required by RSA 275:49, III, when the payments have been requested and paid to the employee in advance of eligibility.
Finally, the new law augmented the Commissioner's authority to penalize employers for wage and hour violations by granting the Commissioner to order wage adjustments after an audit or complaint and by increasing the amount of civil penalties that can be assessed.
Civil Penalties; Maximum Increased. With regard to the civil penalties the new law amended RSA 273:11-a, I to read as follows:
- In addition to any criminal penalty provided under this title, the commissioner may, after hearing, impose a civil penalty not to exceed ($1,000) $2,500, as determined by the commissioner, for any violation of any of the provisions of this title or of any rule adopted pursuant to this title. Any person on whom a penalty is imposed under this section may appeal as provided in RSA 273:11-c and 273:11-d. All moneys collected under this section must be deposited in the general fund.
II. Changes to Unemployment Laws: HB239.
For the last few years the Legislature has considered several bills dealing with unemployment. This bill included some of those proposed changes.
A. Now Eligible for Benefits If Only Seeking Part Time Work.
One of the provisions of this new law deals with Benefit Eligibility Conditions. It amends RSA 282-A:31 by inserting after paragraph IV the following new paragraph:
V. Subparagraphs I(c) and I(d) of this section shall not apply to individuals who are seeking solely part-time work if the individual establishes that:
a. The individual is the only available adult to care for the individual's natural, adopted, step, or foster child under the age of 16;
b. The individual's last 6 months in employment as defined in RSA 282-A:9, IV(f), or wages earned in a like manner in another state, usually consisted of 30 or fewer hours each week throughout such 6 month period.
c. The individual is ready, willing, and able to accept and perform suitable work at least 20 hours per week for which there is a market for the services the individual offers, and that the individual has exposed himself or herself to employment to the extent commensurate with the economic conditions and the efforts of a reasonable prudent person seeking work; and
d. There exists in the individual's labor market area sufficient suitable work during the hours or shifts to which the individual is restricted.
In keeping with that provision the bill also amended the section of RSA 282-A:32 dealing with an employee's disqualification from benefits. RSA 282-A:32, I(d)(2)(D)-(E) has been amended to read as follows:
D. If [he] the individual is unable to apply for or accept work during the hours of the third shift, so-called, because he or she is the only adult available [for the care of his children under the age of 15 during said hours or] for the care of an ill or infirm elderly person who is dependent on him or her for support[.];
E. If the individual is unable to apply for or accept work during the hours of a particular shift because he or she is the only adult available for the care of a natural, adopted, step, or foster child under the age of 16; or
F. If the individual is permanently physically and/or mentally disabled, full-time work for such individual shall be deemed to be the hours and shifts the individual is physically able to work as certified by a licensed physician provided there is a market for the services the individual offers during such hours and shifts.
III. Crime Victim Leave Act: HB 329.
This new law establishes the crime victim employment leave act which requires that covered employers allow employees who are victims of certain crimes to leave work to attend court or other legal investigative proceedings associated with the prosecution of the crime.
To be covered by this law an employer must have 25 or more employees for each working day in each of 20 or more calendar weeks during any calendar year. "Immediate family" for the purposes of this law means the father, mother, stepparent, child, stepchild, sibling, spouse, grandparent, or legal guardian of the victim; or any person involved in an intimate relationship and residing in the same household with the victim. "Victim" means any person who suffers direct or threatened physical, emotional, psychological, or financial harm as a result of the commission or the attempted commission of a crime. "Victim" also includes the immediate family of any victim who is a minor or who is incompetent, or the immediate family of a homicide victim.
Now all covered employers must permit employees who are victims of a crime to leave work so that the employee may attend court or other legal or investigative proceedings associated with the prosecution of the crime. Those employers cannot discharge any employee who is a victim of a crime because the employee exercises his or her right to leave work pursuant to this law.
Employers are not required to compensate employees who are the victim of a crime and who exercises his or her rights under this law.
However, an employee who leaves work pursuant to this law may elect to use, or an employer may require the employee to use, the employee's accrued paid vacation time, personal leave time, or sick leave time.
Employees cannot lose seniority while absent from his or her employment under this law.
To be eligible for this leave, and before commencing leave, the employee must provide the employer with a copy of the notice of each scheduled hearing, conference, or meeting that is provided to the employee by the court or agency responsible for providing notice to the employee. An employer may limit the leave provided under this law if the employee's leave creates an undue hardship to the employer's business. In this section "undue hardship" means a significant difficulty and expense to a business, and includes the consideration of the size of the employer's business, the employee's position and role within the business, and the employer's need for the employee.
Covered employers must maintain the confidentiality of any written documents or records submitted by an employee relative to the employee's request to leave work under this law.
Any employer who violates any provision of this law could be subject to a civil penalty, to be imposed by the commissioner of the New Hampshire Department of Labor in accordance with the procedures established in RSA 273:11-a.
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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