Good news for employers from NH Legislature and Breaking News from Supreme Court regarding Public Sector Employment
Recent Updates to New Hampshire Workplace Laws
By Karen A. Whitley
On June 25, 2018, New Hampshire Governor Sununu signed a bill (“June 2018 amendments”) which modifies workplace laws about Department of Labor inspections, poster and notice requirements, youth employment restrictions, and the retention of wage and hour records. Specifically, the changes affect NH RSA 273 (Labor Commissioner), RSA 275 (Protective Legislation), RSA 276-A:4 (Youth Employment) and RSA 279:27 (Minimum wage). Most of these are welcomed changes for employers.
First, the June 2018 amendments describe the circumstances in which the Commissioner of the New Hampshire Department of Labor (“DOL”) may conduct a workplace inspection. Chapter 273 of New Hampshire’s Revised Statutes Annotated (RSA) governs the department of the Labor Commissioner. According to RSA 273:9, “The commissioner shall, at such times as he shall deem it necessary, and without notice, visit the manufacturing, mechanical and mercantile establishments in the state, so far as practicable, for the purpose of ascertaining whether the laws with reference to employment are complied with, and for the further purpose of ascertaining if reasonable sanitary and hygienic conditions are maintained, calculated to promote the health and welfare of the working people.”
The June 2018 amendment will appear as RSA 273:9-a, and will clarify that “All inspections performed by the commissioner shall be proportional and relative to the potential violations being inspected.” Proportionality is determined by evaluating “the importance of the issues at stake in the inspection, the degree to which the alleged violation involves risk of physical injury, the potential for lost wages, the amount in controversy, the parties’ relative access to relevant information, and the parties’ resources.” A different bill (SB 465-FN) had proposed more strict limitations: that the DOL could only visit a “specific location” of a business at a “reasonable time,” and “after a pattern of documented complaints to the department or known problems for that specific location … has been identified within the prior 12 months.” Although the definition of “proportional” in the June 2018 amendment provides some help, it remains to be seen how this guideline will be implemented.
Second, the legislature changed certain poster and notice requirements relating to work on Sundays. According to RSA 275:32, an employer cannot make an employee do “the usual work of his occupation” on Sunday unless the employee is allowed to have 24 hours free from work in the following six days. Prior to the June 2018 amendment, the employer had to post a schedule “in a conspicuous place on the premises” containing a list of employees who are required or allowed to work on Sunday and designating the day of rest for each.” RSA 275:33. Additionally, each employer was required to “promptly file a copy of each such schedule and every change therein with the labor commissioner.” The statute imposed a $50 file for each violation.
The June 2018 amendment removes the requirement that the list be posted “in a conspicuous place” and instead requires that it be “made available to employees.” The amendment also eliminates the requirement that the employer file the list (and any changes to that list) with the Labor Commissioner. The change also removes the $50 per violation fine. Finally, the June 2018 amendment would allow employees to work on their day of rest, though they cannot be required to do so. The law does not change other provisions of New Hampshire law allowing certain types of employees to work on Sundays without following these requirements (such as employees in hospitals, the newspaper business, employees who sell or deliver food or who work in certain retail stores, and “employees engaged in any labor called for by an emergency which could not reasonably have been anticipated.”)
Third, the law amends RSA 275:48, which lists the types of deductions an employer can make from an employee’s wages. The DOL’s regulations prohibit an employer from charging for a required uniform, but RSA 275:48 does allow an employer (with the employee’s consent) to charge an employee for “voluntary cleaning of uniforms and non-required clothing” and for “required clothing not covered by the definition of uniform.” Chapter 275:48 defines “uniform” as “a garment with a company logo or fashion of distinctive design, worn by one or more employees, and serving as a means of identification or distinction.”
The June 2018 amendment clarifies that any uniform provided by an employer must be “reasonably suited for the conditions in which the employee would be required to wear one, at no cost to the employee.” The amendment also discusses optional company gear, stating “An employee may purchase any other company garments or items if the employee chooses.”
Notice and Poster Requirements
New Hampshire law requires employers to notify all employees their rate of pay and the day and place of payment, both at the time of hire and if there are any changes afterwards. RSA 275:49. The June 2018 amendment clarifies that there is no penalty for failing to notify employees about any change to the minimum hourly rate.
New Hampshire law also requires employers to post an Equal Pay poster which states: “It is illegal in New Hampshire under both state and federal law to pay employees different wages for the same work based solely on sex. If you think that your employer has violated this provision, please contact the New Hampshire Department of Labor.” The poster states at the bottom that it must be posted “in a conspicuous place.” The June 2018 amendment changes the posting requirement by removing the reference to a “conspicuous place” and instead requires employers to “post and make [the poster] available” to its employees. Apparently, circulating the Equal Pay poster via email or on an intranet would comply.
Likewise, the 2018 amendment removes the requirement that employers post the statutory Minimum Wage poster “in a conspicuous location,” and instead requires them to “post and make [it] available” to their workers.
Currently, New Hampshire law requires an employer to keep “a true and accurate record of the hours worked by each [employee], wages paid to each, and classification of employment when necessary.” The employer must keep those records for the length of time “as the commissioner shall prescribe by regulation.” The June 2018 amendment sets a specific timeframe of three (3) years. It is important to note that if a longer retention period applies to a certain type of document due to another law or regulation, the longer period will apply. For example, the New Hampshire Department of Employment Security requires that payroll records be kept for “a period of not less than 6 years after the calendar year in which the remuneration for the services was paid, or, if not paid, was due.”
For municipal employers there can now be more room in file cabinets as HB 1450 changed the requirement to retain job applications and personnel files from 50 years to 20 years.
The bill was originally introduced as an effort to update the law governing youth employment. New Hampshire law protects youth workers based on their age from working in certain occupations, before and after certain hours of the day, more than a certain number of hours per week, and subject to specific work certificates.
The June 2018 amendment focuses on youth workers who are 16 or 17 years of age. The amendment clarifies the number of consecutive days or total hours per week the child may work while school is in session, which varies depending on how many days of school happen during that work week. The amendment confirms that the DOL has the responsibility for enforcing this chapter, but removes a prior provision that had allowed investigators and truant officers to “visit and inspect” all workplaces. The amendment confirms that each employer must “post and make available to all employed youths” a notice about the hours of work, the time allowed for dinner or other meals, and the maximum number of hours that a youth may work in a day. The amendment removes a provision that could be used to hold employers automatically liable for certain violations.
Each year, the New Hampshire Department of Labor conducts in-person seminars throughout the state to give employers a refresher about workplace requirements and to discuss any legal or policy changes. At these seminars, we expect more in-depth discussions of how these legislative changes should be incorporated into an employer’s everyday practice. In the meantime, employers should be on the lookout for changes to DOL posters, forms, and notices and to make sure they are using the most updated versions to reflect the June 2018 amendments. Changes in these workplace laws provide a good opportunity for employers to review their own practices, particularly around record-keeping, compensation, and hiring.
Attorney Karen Whitley is a shareholder and member of Sheehan Phinney’s Labor and Employment group. Karen is licensed to practice in Massachusetts and New Hampshire.
What Does the Supreme Court’s Janus Decision Mean for New Hampshire Public Sector Employers and Employees?
By Elizabeth A. Bailey
In its June 27, 2018 decision in Janus v. American Federation of State, County and Municipal Employees (AFSCME), the U.S. Supreme Court overruled its own longstanding precedent and held that “States and public sector unions may no longer extract agency fees from nonconsenting employees.” The Janus Court’s decision has significant implications for public sector employers and employees here in New Hampshire.
To provide some context, in the 1977 case of Ahood v. Detroit Board of Education, the Supreme Court recognized that under certain circumstances public sector employees who are part of a bargaining unit represented by a union, but who declined to join the union, may be charged an “agency fee.” Under Ahood , nonmembers could be charged for the portion of union dues attributable to activities which were germane to the union’s duties as the collective bargaining unit representative, but nonmembers could not be required to fund the union’s political and ideological projects.
The Janus Court, in a 5-4 decision, overruled the Ahood case and found that the State’s extraction of agency fees from nonconsenting public employees violated the First Amendment. The Janus Court majority held in part that forcing free people to endorse ideas that they find objectionable raises serious First Amendment concerns.
The Court also held that the Ahood Court’s two main justifications for agency fees (labor peace and avoiding the risk of “free riders”) do not pass muster. The Janus Court reasoned that the Federal Government and 28 states prohibit agency fees and millions of employees are effectively represented by unions, and therefore labor peace can be achieved through less restrictive means than agency fees. Avoiding the risk of so-called “free riders” was not a compelling state interest to justify agency fees because unions are willing to represent nonmembers even in the absence of agency fees.
It is important to note that principles of following past decisions (stare decisis) did not require the Court to follow Ahood, and overruling Ahood was appropriate.
In providing direction to public sector employers, the Court held that the procedure of extracting agency fees from nonconsenting public sector employees “violates the First Amendment and cannot continue. Neither any agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed… Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”
The Janus Court minority issued a lengthy dissent, and noted the concern that this decision could undermine unions’ financial ability to effectively represent public sector employees.
Impact on New Hampshire Public Sector Employers
The Janus decision has an immediate impact in the Granite State. Although private sector unions are relatively rare in New Hampshire, public sector unions are numerous and active in all walks of the public sector. RSA 273-A governs labor relations between New Hampshire public sector employers and employees, including towns, cities, school districts, counties and various branches of the State. The New Hampshire Public Employee Labor Relations Board, the New Hampshire State agency which oversees RSA 273-A, has certified well over 600 separate bargaining units in New Hampshire, including bargaining units in all 10 of New Hampshire’s counties. Bargaining unit members include teachers, paraprofessionals, support staff, police, fire fighters, dispatchers, corrections officers, and nursing home employees, as well as a myriad of other public sector professionals and including some supervisory groups. Some of these bargaining units have collective bargaining agreements which provide for the deduction of agency fees; some do not.
Key Take Aways
So what does the Janus decision mean for New Hampshire public sector employers and employees? As an initial matter, New Hampshire public sector employers have stopped deducting agency fees from paychecks. For example, State and Union officials have worked collaboratively to notify bargaining unit members that agency fees would no longer be deducted from State unionized employee paychecks. (Supreme Court union dues decision takes effect in New Hampshire, Concord Monitor, July 5, 2018). Leaders in public sector unions have spoken out against the Janus decision as an attempt to cripple public sector unionism, and have vowed to work harder to maintain and recruit union membership. In the long run, New Hampshire public sector unions will likely be incentivized by Janus to further strengthen relations with existing union members and to strategically support efforts to bring about political change.
Attorney Liz Bailey is a shareholder and member of Sheehan Phinney’s Labor and Employment practice group. Liz represents several public sector clients on labor and employment matters.