2019’s 10 most common NH wage and hour violations

And how to avoid them in 2020

During 2019, the New Hampshire Department of Labor conducted 675 on-site inspections at New Hampshire workplaces. As a result of those audits, NHDOL proposed civil penalties totaling $2,707,600. The civil penalties actually collected (reduced after informal conferences showing corrections) was $601,127. During that same period, NHDOL collected $775,676 in wage adjustments paid to current and former employees.

The following are the 2019 Top 10 worst, or most common, wage and hour violations in New Hampshire, along with tips on how to avoid these problems:

10. Failure to pay minimum wage for all hours worked.

Make certain that all employees are paid at least the correct (current) minimum wage for all hours worked and any exceptions provided for in the law (e.g., special rates for student learners, tipped employees, etc.) are carefully reviewed and applied consistently.

9. Failure to have a written safety plan, joint loss management committee and safety summary form, if required.

Employers with 15 or more employees need to have a joint loss safety committee to review and correct workplace safety problems. Employers with 15 or more employees must file a written safety plan with the state.

8. Failure to secure and maintain workers’ compensation coverage for misclassified workers.

If employers use independent contractors and those individuals are actually misclassified employees, that could result in a failure to provide workers’ compensation coverage, and that can result in fines, insurance denials or dropped coverage and substantial liability for uninsured claims.

7. Improper deductions from wages. Not following list of approved deductions.

Under state law there is a list of approved deductions from wages. These arrangements should be in writing, and all elements of the deduction arrangement must be satisfied before the deductions commence.

6. Employing illegal aliens (and others who don’t have proper documentation on file).

All required paperwork (e.g., I-9 forms) must be completed and in place before the employee starts work, and in the case of employees on work visas, that they don’t continue to work beyond the visa/authorization’s expiration date.

5. Failure to provide written notice to employees of their wage rate, pay period, pay day and a general description of fringe benefits when they are hired and in advance of any changes thereto.

When employees are hired, employers need to put in writing the employee’s wage rate, pay period, pay date and a general description of fringe benefits. The same is true when those terms change. The change should be in writing before the effective date of the change. Employees need to sign an acknowledgment of receipt of these notices and employers need to keep those forms.

4. Failure to pay two hours minimum pay at the employee’s regular rate of pay on a given day that an employee reports to work at the request of the employer and work isn’t available.

Employers should notify hourly employees when they are not needed at work on a particular day. If the notice is unsuccessful and the employee reports to work, the employer must pay the employee a minimum of two hours pay for reporting to work OR put the employee to work and then pay for the hours worked. One exception is when the employee’s job regularly requires less than two hours of work. The employee, in those cases, only needs to be paid for the time worked but this arrangement needs to be clear, in writing, in advance.

3. Illegal employment of workers under 18 (not having proper paperwork, hours violations or working in a hazardous environment).

Employers should not employ younger workers (under age 18) unless they strictly comply with these laws and regulations. All workers under age 18 must be restricted in the number of hours, days of work and types of work, as established under state (and federal) law. The standards vary a bit by age. Employers need to strictly comply with applicable requirements.

2. Failure to keep accurate records of all hours worked. (Not recording meal breaks taken; not paying for breaks of less than 20 minutes in duration.)

Employers in New Hampshire must permit employees to take a 30-minute (unpaid) meal break after five consecutive hours of work in a workday. Meal breaks must be recorded on daily time sheets just like the start and end time for all hourly and salaried non-exempt employees. Meal waivers are possible, but exceptions to those waivers must be noted on time records.

1. Failure to pay all wages due for hours worked (including paid short breaks, overtime, shift differentials and fringe benefits due).

Employers must keep accurate time records each day (start, breaks, end) for hourly and salaried, non-exempt employees. The employee is the one who records the time. When there are errors, employers don’t always pay all wages and fringe benefits due to those employees. With the advent of smartphones and remote access, this is even more challenging. Daily monitoring of time records is important. Requiring employees to seek approval in advance for extra work is helpful, but they should also alert supervisors when additional work is performed.

Remember, time records are “frozen” in time and NHDOL won’t “let it go” if they find clear and repeated violations.

Our thanks again this year to Michele Small and the staff from NH Department of Labor, Wage and Hour Division, as they provided useful information for this year’s list.

Attorney Jim Reidy is a partner in the firm of Sheehan Phinney and chair of its Labor and Employment Practice Group.