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What are the requirements relating to advertising open positions?
No state-specific requirements exist, except actions prohibited by the state’s Law Against Discrimination (RSA Ch. 354-A).
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
Employers in New Hampshire are generally free to condition offers of employment on the satisfactory results of a criminal records check and to ask about criminal backgrounds on employment applications and in the recruitment process; however, they may ask only about pending arrests and convictions that have not been annulled. Schools, home healthcare agencies, residential care and treatment facilities (including nursing homes), and other entities that offer personal care services regulated by the New Hampshire Department of Health and Human Services are required to conduct criminal records checks when the position involves services or direct access to a vulnerable individual. The state legislature has attempted to restrict employers’ ability to use criminal background checks, but such bills have not been successfully legislated as of August 2015. It is worth monitoring state legislation to identify whether any new bills are introduced in 2016.
(b) Medical history
It is unlawful for any employer to require an applicant or employee to undergo genetic testing or to affect terms of employment based on genetic testing, except in very limited circumstances (RSA 141-H:3).
(c) Drug screening
No state-specific laws restricting or regulating an employer’s ability to impose pre-employment drug screens exist. However, one statute (RSA 151:41) requires healthcare facilities to have a written policy addressing drug testing and diversion prevention of controlled substances. Healthcare facilities include, without limitation, hospitals, doctors’ offices, home healthcare providers, outpatient rehabilitation centers, ambulatory surgical centers, urgent care centers, nursing homes, assisted living facilities, adult day-care centers, and hospice care facilities. The policy, which applies to employees, contractors and agents who provide direct patient care, must include procedures for drug testing, including, at a minimum, testing where reasonable suspicion exists. While not specifically required, pre-employment drug testing should probably be a part of the drug-testing program.
As of 2013, New Hampshire has a medical marijuana law (RSA Ch. 126-X). The law is completely effective now that special dispensaries have begun to open around the state to make prescription cannabis available to qualified patients. The statute states that the law is not to be construed to require “any accommodation of the therapeutic use of cannabis on the property or premises of any place of employment” (RSA 126-X:3, III (c)). Further, the law does not “limit an employer’s ability to discipline an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis” (id.). While these provisions are seen as helpful to employers’ efforts to maintain a drug-free workplace, no case decisions or administrative guidance exists on whether the statute will limit an employer’s rights to refuse employment or terminate the employment of qualified individuals who test positive on employer-mandated drug tests for marijuana, especially pre-employment drug screens.
(d) Credit checks
No state-specific laws exist that restrict an employer’s use of credit checks in the hiring or employment process. However, there have been attempts in the state legislature to restrict this ability. Such bills have not been successfully legislated as of August 2016, but it is worth monitoring state legislation to identify whether any new bills are introduced.
(e) Immigration status
New Hampshire law requires all employers to comply with federal law (RSA 275-A:4-a).
(f) Social media
In 2014, New Hampshire passed a law, under which employers cannot:
- request or require applicants and employees to disclose login information to their personal social media and electronic accounts; or
- compel any applicant or employee to add anyone to his or her personal social media or electronic accounts or reduce the privacy settings on such accounts (RSA 275:74).
There are exceptions under the law to allow employers to:
- monitor employee use of the employer’s social media accounts and electronic systems;
- conduct certain workplace investigations;
- obtain access to accounts that were created by virtue of the employment relationship or that were paid or sponsored by the employer; and
- obtain information about an employee or applicant that is in the public domain.
The law applies to all employers.
If an employer intends to require a new employee to execute a non-compete agreement as a condition of employment, the employer must provide the new hire with a copy of the agreement before the individual’s acceptance of the offer of employment. See the full text of the law below at section 7.3.1.
Wage and hour
What are the main sources of wage and hour laws in your state?
The majority of wage and hour laws in New Hampshire are contained in RSA Chapters 273-282-A. The most significant chapters are the state’s statutes on:
- wage protection (RSA Ch. 275);
- youth employment (RSA Ch. 276-A); and
- minimum wage (RSA Ch. 279).
These statutes and their corresponding regulations are found at the New Hampshire Department of Labor website at www.nh.gov/labor/laws/index.htm. In addition, New Hampshire has a statutory process for wage garnishment procedures (RSA Ch. 512).
What is the minimum hourly wage?
The minimum wage is $7.25 an hour for most workers or whatever is set forth under the Federal Fair Labor Standards Act.
What are the rules applicable to final pay and deductions from wages?
Employees who are discharged by the employer must be paid all wages earned within 72 hours of discharge. Employees who voluntarily resign must be paid all wages no later than the next regular payday, unless the employee provides at least one pay period’s notice of his or her intention to quit. In such cases, the employer must pay all wages within 72 hours of the resignation date. Employees who are laid off by the employer must be paid all wages no later than the next regular payday. If an employer willfully and without good cause fails to pay all wages when due, the employer will be liable for the wages not paid, plus liquidated damages up to an amount equal to the unpaid wages (RSA 275:44). Any withholding of or deduction from wages must fall within one of the enumerated provisions listed in RSA 275:48 and meet the requirements of such applicable provision. Careful consideration of RSA 275:48 should be made before initiating any wage withholding. An employer’s ability to make deductions from a salaried employee’s pay is restricted (RSA 275:43-b). The New Hampshire statute is more restrictive than the Federal Fair Labor Standards Act’s salaried pay rules for exempt employees, and the state law applies to all salaried employees, whether they are exempt from overtime requirements or not.
Hours and overtime
What are the requirements for meal and rest breaks?
All employers must provide employees with a 30-minute meal break (which can be unpaid) if the employee is scheduled to work for five or more consecutive hours, unless the employee is allowed to eat while he or she works and is paid for such time (RSA 275:30-a).
What are the maximum hour rules?
New Hampshire generally follows standards under the Fair Labor Standards Act; however, state law prohibits discrimination or discipline against any nurse or nursing assistant who refuses to work for more than 12 consecutive hours, except in certain limited circumstances (RSA 275:67). In addition, employers must provide at least 24 consecutive hours off within six days of any Sunday on which the employee is required to work, with some exceptions (RSA 275:32).
How should overtime be calculated?
Generally, New Hampshire follows the Federal Fair Labor Standards Act on calculation of overtime.
What exemptions are there from overtime?
With limited exceptions set forth in RSA 279:21, New Hampshire follows the Federal Fair Labor Standards Act on exemptions from overtime.
What payroll and payment records must be maintained?
New Hampshire employers must pay all wages due to employees within eight calendar days of the end of the week in which the work was performed (RSA 275:43). If an employer uses a pay period that is less frequent than weekly, or will result in a payday that is more than eight days from the end of the week in which wages are earned, it must obtain written approval from the New Hampshire Department of Labor. The process to apply for such written approval can be found on the New Hampshire Department of Labor’s website www.nh.gov/labor/forms/non-weekly-payment.htm. If obtained, the New Hampshire Department of Labor’s written approval must be maintained with the employer’s regular payroll records.
Employers must maintain a record of all hours worked by employees who are not exempt under the Fair Labor Standards Act for at least four years (RSA 275:49 and the New Hampshire Department of Labor’s administrative rules (Admin. Rules Lab 803.03)). Such time records must show the time when work began and ended, including any bona fide meal periods. If the employer alters entries on time records completed by employees, the employee must sign or initial the changed record. Time records must support individual pay sheets; payroll sheets, in turn, must support canceled checks or cash receipts.
Employers cannot make use of automated or electronic time keeping programs that can be altered by an employer without the knowledge of the employee or that do not clearly indicate that a change was made to the record.
Every employer must—at the time of hiring and before making any changes—notify each employee in writing as to his or her rate of pay or salary (whether by day, week, biweekly, semi-monthly, or yearly), if he or she is to be paid by commission, the day and place of payment, and the specific methods used to determine wages due. The employee must sign such notices. If an employer has any policies or established practices regarding fringe benefits (e.g., paid vacations, holidays, sick leave, bonuses, severance pay, personal days, and reimbursement of employees’ expenses), employees must be provided with a written or posted detailed description of such practices and policies (N.H. Admin. Rules Lab 803.03) on the requirements of providing written notices www.gencourt.state.nh.us/rules/state_agencies/lab800.html).
Payroll records must show all compensation paid to employees, whether in the form of hourly wages, salary, bonuses, commissions, or severance pay. Employers must provide employees with pay stubs that show all deductions made from wages.
New Hampshire’s unemployment insurance rules (Admin. Rules Emp 303.05) require payroll records to be maintained for six years from the end of the calendar year in which the wages were paid or due to the employee.
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