Eighty percent of life is just showing up, right?

While some may debate the accuracy of that measure of effort in New Hampshire, a law provides for hourly pay when an employee just shows up for work.

That law, NH RSA 275:43-a, adopted in 1985, requires, with few exceptions, that when an employee reports to work at the employer’s request, and there is no work for the employee that day, the employer needs to either find work for the employee at his/her regular hourly rate or pay the employee for two hours of work to make up for the inconvenience. Employers in New Hampshire refer to that law as “The Two-Hour Rule” or “Reporting Pay.”

This unique pay arrangement has most often been triggered when a facility lost power during a winter storm or when staff weren’t needed because of fewer customers that day. And there are exceptions to the rule for specialized workplaces like instructors at ski resorts or public sector (e.g., municipal or county) workplaces, when the job requires less than two hours of work per day, or when the employee wants to leave because of illness or to care for a family member.

Since the inception of the law, employers have been encouraged to notify workers in advance when they aren’t needed, but the law provides that if the employee didn’t get the notice and showed up at work, the employer still had to either pay the employee for the trouble of coming in or put the person to work. That all changed with COVID-19 and the explosion of remote work.

Before the COVID-19 pandemic, an estimated 6% of the U.S. workforce worked remotely. That mushroomed to as much as 60% at the zenith of COVID.

Now, approximately 30% of workers in the U.S. work remotely on a full-time or hybrid basis. As a result, the New Hampshire Department of Labor took the position during COVID that if an employee logged on to work from a remote location, he/she was due a minimum of two hours of pay regardless of the time spent that day. Employers objected, focusing on the legislative history and the clear intent of the law to account for an employee’s commute to and from work on that day when no work was available.

For the last couple of years, there have been discussions with the N.H. Department of Labor, employers, the Business and Industry Association, and members of the Legislature to address this issue. Last year a bill was introduced that made it clear that the two-hour law required pay only when the employee was required to report to the employer’s place of business, but that bill failed in committee. Now, however, there appears to be a fix in the works this year.

Currently, there is a bill in the Legislature, HB 1043, that allows employers to have an alternative policy to the two-hour pay rule. This bill amends RSA 275:43-a to grant employers the authority to establish their own pay policies regarding minimum payment for employees who report to work.

In other words, the new language specifies that the statutory minimum pay requirement of not less than two hours’ pay at the employee’s regular rate will only apply if the employer hasn’t established a different written policy. The current law includes a provision that protects employers from liability for wages if they make a good-faith effort to notify an employee not to report to work. The proposed change to the law doesn’t change that protection for employers. While the current law also provides if an employee reports to work after unsuccessful notification attempts, the employer can pay the employee for two hours’ pay at the employee’s regular rate for the inconvenience or put the employee to work and pay the employee for hours worked. The proposed change to the law wouldn’t change that provision but it would allow the employer to have a different pay policy when employee’s report to work at the employer’s request.

While this bill doesn’t expressly address remote work, it does suggest that employers could have a separate policy that deals with remote work pay expectations. Employers are encouraged to reach out to their local House representative or state senators to express their support for this bill.