Hiring

Advertising

What are the requirements relating to advertising open positions?

New Hampshire employers are prohibited from publicizing any notice or advertisement that indicates any limitation, specification, or discrimination of applicants based on age, sex, sexual orientation, gender identity, race, color, marital status, physical or mental disability, religious creed, national origin or sexual orientation, unless there is a bona fide occupational qualification for such preference. RSA § 354-A:7(III).

Background checks

(a)Criminal records and arrests

Generally, employers may condition offers of employment on the satisfactory completion of a criminal history record check. Also, there is no statute in New Hampshire, preventing employers from questioning applicants or employees about their prior criminal convictions, as long as the crime has not been annulled by a court. RSA § 651:5(X)(f). Specific background inquiries may be required for specific employment positions. For instance, certain schools are required to perform a background investigation, including a criminal history check, on all employees. RSA § 189:13-a. In addition, childcare centers are required to submit to the Department of Health and Human Services the names along with other information of new hires, new household members, or other individuals who are responsible for the care of or have regular contact with children. RSA § 170-E:7. Employers are also required to check the criminal history of employees in certain healthcare professions. See RSA § 151:2-d (residential care and healthcare providers); RSA § 161-I:6-a (personal care service providers).

New Hampshire has adopted the Fair Credit Reporting Act, RSA §§ 359-B:1 – 359-B:21, which parallels the Federal Fair Credit Reporting Act, 15 U.S.C. § 1681 (2006). 

(b)Medical history

New Hampshire prohibits employers from: (1) soliciting, requiring, or administering genetic testing relating to any individual as a condition of employment; or (2) affecting the terms, conditions, or privileges of employment of any individual based on genetic testing. RSA § 141-H3.

(c)Drug screening

New Hampshire has no statutory prohibition against employers administering drug tests to applicants or employees. Drug testing, however, in certain circumstances may violate an employee’s right to privacy (e.g., when the scope of testing unreasonably exceeds the employer’s legitimate interest in imposing the test).

Employers are prohibited from requiring an employee or applicant for employment to pay for the cost of a medical examination, non-required drug or alcohol testing, records required by the employer, or any item required by and for the benefit of the employer, as a condition of employment. This shall not include examinations, permits or licenses required by state or federal law.” N.H. Code Admin. R., Lab § 803.02(b).

(d)Credit checks

New Hampshire does not have any restriction on an employer’s ability to inquire into certain credit history questions during the hiring process, as long as all requirements under the federal and state Fair Credit Reporting Acts have been met (e.g., obtaining written authorization from the applicant; making certain required disclosures and notifications, etc.).

(e)Immigration status

The New Hampshire Department of Labor does not issue work visas or conduct certification for employers seeking to bring foreign workers to the United States. All employers must comply with federal laws regarding immigration.

(f)Social media

Employers are prohibited from requesting or requiring an employee or prospective employee to (1) disclose social media passwords for accessing their social media accounts, (2) to add anyone to a list of contacts associated with a personal social medic account, or (3) reduce the privacy settings associated with any personal social media account RSA § 275:73 An employee cannot discriminate or retaliate against an employee for refusing to do any of these things. RSA § 275:74.

(g)Other

New Hampshire has not clarified whether an employer checking references has to comply with the requirements of the New Hampshire Fair Credit Reporting Act.

Wage and hour

Pay

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 § 275:1 et seq. and RSA § 279:1 et seq. The most significant subchapters are:

What is the minimum hourly wage?

The minimum wage in New Hampshire is the same as the federal minimum wage. RSA § 279:21. As of 2022, the minimum wage is $7.25 per hour. There have been proposals in the state legislature to increase the minimum wage but those proposals have thus far failed. The minimum wage provisions apply to all employees, except those engaged in household, domestic, or farm labor; those employed as outside salesmen; employees of summer camps for minors, or those employed as newsboys, non-professional ski patrolmen, or golf caddies. RSA § 279:21. Furthermore, employees with fewer than six months of experience in an occupation may be paid 75 per cent of the minimum wage, provided the employer files an application with the labor commissioner within 10 days of hiring the employee. Individuals 16 years of age or younger may also be paid 75 per cent of the minimum wage. Employers cannot pay salaried employees an amount that falls below the minimum wage, when compared to the hours worked in any workweek. N.H. Code Admin. R. Ann. Lab. § 803.02(a).

What are the rules applicable to final pay and deductions from wages?

Vacation pay, severance pay, personal days, holiday pay, sick pay, and payment of employee expenses, when such benefits are a matter of employment practice or policy, are all considered “wages” when due. RSA § 275:43(V).

Salaried employees are required to be paid their full salary for any period in which such employees perform any work without regard to the number of hours or days worked by the employees, unless certain exceptions apply. RSA § 275:43-b(I). However, an employer may “prorate salary to a daily basis when a salaried employee is hired after the beginning of a pay period, terminates of his own accord before the end of a pay period, or is terminated for cause by the employer.” RSA § 275:43-b(II). Please note that this means that exempt employees who are terminated for a reason other than cause must be paid for the remainder of the pay period (e.g., if an employer has a two-week pay period and terminates an exempt employee without cause on the first day of the pay period, the exempt employee must be paid the regular salary through the remainder of the full two-week pay period). RSA § 275:43-b(II).

New Hampshire has strict requirements regarding deductions from wages. RSA § 275:48(I). Employers are permitted to deduct amounts from employee wages only in the following circumstances:

  • When the employer is required or empowered to do so by law, such as payroll taxes.
  • When the employee authorizes (in writing) the employer to make a deduction for union dues, health, welfare pension, and apprenticeship fund contributions, voluntary contributions to charities, housing and utilities, payments into savings funds held by someone other than the employer, voluntary rental fees for non-required clothing, voluntary cleaning of uniforms and non-required clothing, the employee’s use of a vehicle (under RSA § 261:111), medical, surgical, hospital and other group insurance benefits without financial advantage to the employer, required clothing not covered by the definition of uniform, legal plans and identity theft plans without financial advantage to the employer.
  • Pursuant to any rules or regulations for medical, surgical or hospital care or service, without financial benefit to the employer, and openly, clearly and in due course recorded in the employer’s books.
  • Upon an employee’s written request, for the following (provided the employer provides an itemized accounting to the employee at least once a month):
    • voluntary contributions into cafeteria plans or flexible benefit plans;
    • voluntary payments by the employee for childcare fees, parking fees;
    • voluntary payments for pharmaceutical items, gift shop or cafeteria items purchased on site of a hospital by hospital employees;
    • voluntary installment payments for legitimate loans made by the employer to the employee, as evidenced by a document that includes the time the payments will begin and end, the amounts to be deducted, and a specific agreement regarding whether the employer is allowed to deduct any amount outstanding from final wages at the termination of employment;
    • voluntary payments for accidental overpayments of wages, when the recovery is agreed to in writing (and when certain conditions are met);
    • voluntary payments for the recovery of tuition for non-required educational costs paid by the employer for the employee to an educational institution when the specific deduction is authorized in writing prior to the deduction (and when certain conditions are met); or
    • voluntary payments for employee’s use of a health or fitness facility (and when certain conditions are met).
  • Contributions to political action committees when requested in writing by the employee.
  • Deduction from the employee’s final paycheck for vacation pay or other paid time off when paid to the employee in advance of eligibility, if the employer has a written authorization from the employee that was made at the time of the original request for the advanced pay, without coercion or pressure.
  • For any purpose on which the employer and employee mutually agree does not grant financial advantage to the employer, when the employee has given his or her written authorization and deductions are duly recorded. The withholding shall not be used to offset payments intended for purchasing items required in the performance of the employee's job in the ordinary course of the operation of the business.
Hours and overtime

What are the requirements for meal and rest breaks?

It is unlawful for an employer to require an employee to work more than five consecutive hours without providing the employee with a half-hour lunch or eating period, unless it is feasible for the employee to eat while performing his or her work and the employer permits the employee to do so. RSA § 275:30-a.

What are the maximum hour rules?

In general, eight hours of work constitutes a workday under New Hampshire law, unless otherwise agreed to by the employer and employee. RSA § 275:30. Also, with some exceptions, nurses and nurses’ assistants may not be required to work more than 12 consecutive hours. RSA § 275:67.

Employers in New Hampshire cannot operate on Sundays unless they have posted a list of employees who are required or allowed to work on Sunday and designated another day of rest for those employees. RSA § 275:33. Employers, however, may operate on Sundays if they reach an agreement with employees and the agreement is approved by the labor commissioner. RSA § 275:33-b. Furthermore, this provision does not apply to hospitals, nursing homes, orphanages and homes for the aged. RSA § 275:33-a. Specific occupations are also exempt from this requirement, such as janitors and employees engaged in farm or personal service. RSA § 275:35. If an employee is required to work on Sunday, he or she must be allowed 24 consecutive hours off during the next six days. RSA § 275:32.

How should overtime be calculated?

The overtime requirement in New Hampshire tracks the federal Fair Labor Standards Act. Under the New Hampshire overtime law, an employer must pay an employee 1.5 times his or her regular hourly rate for all hours worked over 40 in one working week. RSA § 279:21(VIII).

What exemptions are there from overtime?

New Hampshire law exempts from overtime requirements employees of amusement, seasonal or recreational establishments (if certain conditions are met). Employees of employers covered by the Fair Labor Standards Act are also not subject to New Hampshire overtime provisions (but, of course, are subject to the overtime provisions of the FLSA); provided, however, that employers may not calculate overtime for delivery drivers and sales merchandisers through use of the fluctuating workweek method authorized under the FLSA regulations. RSA § 279:21.

Record keeping

What payroll and payment records must be maintained?

New Hampshire law requires every employer to keep an accurate record of the hours worked by, wages paid to, and classification of each employee, which records shall be made readily available to the New Hampshire Department of Labor (NHDOL) for inspection. RSA § 279:27.