Wage and Hour Back to Basics for New Hampshire Employers

Headshot - Peg O'Brien
Margaret "Peg" O'Brien
Director, Litigation Department and Chair, Employment Law Group
Published: New Hampshire Business Review
April 27, 2023

With our newfound time now that pandemic-related matters are no longer monopolizing our days, it is a good time for New Hampshire businesses to review some basic wage and hour compliance matters in their workplace.  Some businesses are surprised by the specific requirements imposed by New Hampshire’s state laws and regulations.  From the initial communication of pay, to tracking, calculating and distributing wages, employers will likely find a specific statute and/or labor regulation governing the transaction. Fortunately, however, this area of employment law is relatively easy to master, once you are familiar with the basics. This article will briefly address some of the more frequent problem areas that result in civil fines and penalties being imposed by the New Hampshire Department of Labor (“DOL”) following an audit.

First, all employers must notify employees in writing at the time of hiring (which is usually prior to the first day of employment) of their rate of pay, the applicable pay period, and the day and place/manner of payment.  New Hampshire Lab. 803.03(a).  This notice is traditionally delivered to employees by way of an offer letter or some sort of “New Hire Rate of Pay” form (a sample form is available on the DOL’s website).  In addition, and what surprises most employers, is that pursuant to New Hampshire Lab. 803.03(f)(6), employers must not only provide the written notification of wages to employees but they must also obtain their employees’ signatures on this written notification, and they must keep a copy of the signed written notification on file.  Further, during the course of employment, employers must also notify employees in writing of any changes to wages or day of pay prior to such changes taking effect, and the employer must obtain the employee’s signature on this subsequent notification as well. See RSA 275:49; Lab. 803.03.

Second, if employers offer vacation, sick leave or other fringe benefits then New Hampshire’s laws and regulations requires employers to notify employees in writing or through a posted notice maintained in a place accessible to employees, of the terms and conditions of such benefits.  RSA 275:49; Lab. 803.03.  Frequently, this notice is provided in an employee handbook through a vacation or sick leave policy.  The paid time off benefits, for example, should include accrual rate, benefit period (e.g., calendar or anniversary year), whether or not the employer will “cash out” unused time at year end or at the end of employment, and if so, under what terms, and whether any or all of the paid time off will carry over from year to year. Again, if any changes are made to vacation pay, sick leave and other fringe benefits during the course of employment (all of which are considered “wages” under New Hampshire law), employers must request and obtain their employees’ signatures on the written notification of the change, and must keep a copy of the signed form on file. See Lab. 803.03.  This is frequently accomplished by way of an acknowledged form issued with an employee handbook.

Third, New Hampshire law and regulations require employers to provide written notification to employees of permissible deductions made from the employee’s payroll check, for each period such deductions are made and of information regarding the deductions allowed from wage payments under state law. RSA 275:49; Lab. 803.03. A handbook policy is a good place to provide employees with notice of permissible deductions.  Many deductions from payroll require the express approval from the employee, such as accidental overpayments of wages and deductions for purposes of repaying an employee loan.  The DOL website contains sample forms employers can use for each of those deductions from pay (overpayment and loans).

 The general rule is that all employers must pay all wages due to employees within eight days after the expiration of the week in which the work is performed if the employee is paid on a weekly basis or within 15 days after the expiration of the work week if the employee is paid on a biweekly basis. These wages must be paid on regular paydays designated in advance. For example, if your current pay period runs from Sunday, June 4, 2023 at 12:00am through Saturday, June 17, 2023 at 11:59pm; your payday may fall on any of the days from Sunday, June 18 through the following Sunday, June 25.

The Commissioner of the Department of Labor may permit payment of wages less frequently, upon written petition and for good cause shown, although the Commissioner will not approve pay schedules less frequently than once per month. See RSA 275:43, IV. The Department of Labor provides a sample form for employers to use to petition for less frequent payment of wages.

If you have questions regarding the issues discussed in this article, please do not hesitate to contact any of the lawyers in McLane Middleton’s Employment Law Practice Group.