Laws and regulations undergo changes at federal, state levels

Over the last year, state and federal legislators have enacted or amended several laws affecting the workplace. Similarly, courts and agencies have been busy considering laws affecting employers and employees.

Minimum wage: As you probably know, the minimum wage employees must be paid has been increased at both the federal and state level. An employer is required to pay employees whichever of these laws is a greater amount at any given time. As of Sept. 1, New Hampshire law provides the higher minimum at $6.50 per hour. On July 24, 2008, the federal rate will be higher, at $6.55 per hour, but as of Sept. 1, 2008, New Hampshire law increases its minimum to $7.25 an hour.

Employer payment of attorney’s fees in whistleblower and wage/hour cases: In a recent decision, the New Hampshire Supreme Court ruled that New Hampshire’s Whistleblower Law gives the New Hampshire Department of Labor authority to order an employer to pay a complaining employee’s attorney’s fees and expenses if the employee wins a whistleblower claim at a department hearing. This is a significant change for employers in defending such claims. Since the New Hampshire Whistleblower Law was enacted, the Labor Department has taken the position that it did not have authority to order an employer to pay a winning employee’s attorney’s fees or expenses. The possibility of having to pay an employee’s attorney’s fees and expenses greatly increases the cost/risk of losing a whistleblower case for an employer, and as a result now gives significant leverage to an employee in these cases.

The Supreme Court based its decision on a phrase in New Hampshire law that states the Department of Labor can award an employee “any appropriate injunctive relief.” The good news for employers is that New Hampshire’s wage/hour laws do not contain such a broad grant of authority, and since the whistleblower decision, the department has continued to rule that it doesn’t have authority to order an employer to pay an employee’s attorney’s fees or costs in a wage/hour case.

Forming unions at public workplaces: Unlike Congress, which considered but didn’t enact the Employee Free Choice Act, which would have allowed any workplace to be unionized without a secret ballot election if the majority of workers sign cards authorizing union representation, the New Hampshire Legislature passed and on July 17 Governor Lynch signed into law legislation requiring public employers in New Hampshire to recognize a union without an election if the union gets a majority of workers to sign union authorization cards.

Employees’ right to discuss terms and conditions of employment: In recent decisions, courts have ruled against employers prohibiting employees from discussing with each other or people outside of work the terms and conditions of their employment such as their wages/salary. For example, the U.S. Court of Appeals for the District of Columbia ruled that an employer’s policy prohibiting employees from “fraternizing on duty or off duty, dating, or becoming overly friendly with clients, employees or with co-employees” violated the National Labor Relations Act.

The court held that employees could reasonably interpret this rule as preventing them from talking about terms and conditions of employment with co-workers in violation of the NLRA.

Similarly, the D.C. Circuit Court ruled that an employer’s handbook policy confidentiality – “we recognize and protect the confidentiality of any information concerning the Company, its business plans, its partners [i.e. employees], new business efforts, customers, accounting and financial matters” – violated the NLRA’s protection of employees’ right to form, join or assist unions and to engage in concerted activities for their mutual aid and protection.

Employers are advised that policies that restrict such rights could result in unnecessary unfair labor practice charges against a company and may be used by a labor organization as a weapon for union organizing or as a basis for overturning a union election that the union has lost.

Civil unions: New Hampshire law now permits same-gender couples to enter into civil unions and have the same, rights, responsibilities and obligations as married couples. However, federal ERISA and the Defense of Marriage Act prohibit the recognition of civil unions or same-sex marriage. Employers need to look at the applicable law for every benefit they offer to married spouses to determine whether they are required, prohibited or allowed to offer the same benefit to civil union partners.

Required forms/posters: I-9 forms have been changed for the first time in 16 years. All employers, regardless of size or number of employees, must complete this form for every new hire.

Anne Scheer is of counsel with the Concord-based law firm of Gallagher, Callahan & Gartrell, representing both private and public sector clients on employment and labor relations issues. She can be reached at or 603-228-1181.