If you believe you’ve been deprived of the compensation to which you’re legally entitled, please contact the Lore Law Firm. Our overtime rights lawyers represent New Hampshire employees who have been subjected to workplace wage and hour violations and take cases on a contingent fee basis – no fee if no recovery of backpay.
Understanding New Hampshire Wage and Overtime laws
While New Hampshire does have certain state labor laws that differ from the federal Fair Labor Standards Act (FLSA), the state law applies only in instances where it provides greater rights or protections than federal law. Whichever law (state or federal) is more favorable to the worker will apply. In most instances, however, federal law will cover issues involving overtime pay and minimum wage.
The current New Hampshire minimum wage and the federal minimum wage is $7.25 per hour.
New Hampshire state labor laws do not include a provision regarding the payment of overtime. However, as most employers are covered by the FLSA, generally the FLSA will apply and requires employers to pay time and a-half for all hours worked over 40 per workweek, unless an employee is properly classified as exempt.
For minimum wage workers in New Hampshire, the overtime pay rate amounts to $10.88 per hour (1.5 x $7.25).
New Hampshire labor laws do require reporting pay or show-up pay when workers show up for a scheduled shift but are sent home due to no available work. An employee who reports to work at the employer’s request must be paid for a minimum of 2 hours.
An employer doesn’t violate overtime laws by requiring employees to work overtime, (ie “mandatory overtime”), as long as they are properly compensated at the premium rate required by law. However, a mandatory overtime exception applies to nurses under New Hampshire law which provides:
Mandatory Overtime for Nurses. A registered nurse, licensed practical nurse, or a licensed nursing assistant shall not be disciplined, or lose any right, benefit, or privilege for refusing to work more than 12 consecutive hours, except as provided below. Any nurse who is mandated to work more than 12 consecutive hours shall be allowed at least 8 consecutive hours of off-duty time immediately following the worked overtime.
The prohibition against mandatory overtime shall not apply to: (a) A nurse participating in surgery, until the surgery is completed; (b) A nurse working in a critical care unit, until another employee beginning a scheduled work shift relieves him or her; (c) A nurse working in a home health care setting, until another qualified nurse or customary caregiver relieves him or her; (d) A public health emergency; or (e) A nurse covered by a collective bargaining agreement containing provisions addressing the issue of mandatory overtime.
Employers shall be exempted from the provisions relating to mandatory overtime for nurses if there is a written waiver agreement between the employer and employee, made without coercion or pressure, provided the agreement is submitted to the commissioner of the department of labor. The agreement may be terminated by the employee with 14 days written notice to the employer and department of labor.
Which Employees are Entitled to Overtime Pay
Most workers in New Hampshire are entitled to overtime pay when they work more than 40 hours per week. In certain circumstances, however, there are exemptions.
Employees engaged in executive, administrative, or professional capacities (and paid at least $455 per week on a salary basis) are exempt from the overtime requirement. Note that new minimum salary requirements for overtime exemption take effect in January 2020 and increase the minimum salary threshold to $684 per week (or $35,568 annually). This change in federal law will also apply to most workers in New Hampshire when making the determination of whether they are classified as exempt or non-exempt from the overtime pay laws.
Misclassification of Independent Contractors
Misclassification occurs when a business treats its workers as independent contractors (or subcontractors) rather than employees to avoid legal obligations such as social security taxes, worker’s compensation, unemployment insurance and overtime pay. While there are situations in which workers are legitimately running their own business and properly treated as independent contractors who are not entitled to receive overtime, employers are not allowed to mischaracterize employee roles to avoid paying overtime compensation.
Merely labeling a worker as an independent contractor, or even entering into a written agreement, is not enough to avoid the labor laws on overtime pay.
There are several factors to be considered in determining if a worker in New Hampshire is an employee or independent contractor (a/k/a 1099 employee)
If properly classified as an independent contractor under New Hampshire law, workers are typically eligible for only the specific compensation bargained for in a contract.
Employers may not withhold any portion of an employee’s wages unless required to by New Hampshire or federal law, or with prior written authorization.
An employer is required to provide the employee with a written statement of all deductions, which may include taxes, insurance premiums, contributions to charities, legitimate deductions made from gross wages
New Hampshire law requires that all final wages be paid on the next regular payday if an employee quits or resigns. If fired, wages are due withing 72 hours of the termination.
Pay Statements / Pay Stubs
New Hampshire labor laws require an employer to provide employees with a written statement of all deductions made from pay, which may include taxes, insurance premiums, contributions to charities, legitimate deductions made from gross wages.
At the time of hiring an employee, and upon any changes, employers are required to put the employee’s rate of pay or any fringe benefits in writing.
Meal and Rest Breaks
Employers in New Hampshire are required to grant workers a 30 minute lunch or meal period whenever an employee is required to work more than 5 consecutive hours. If the employer cannot allow thirty minutes, the employee must be paid if they are eating and working at the same time.
Vacation or Holiday leave
New Hampshire doesn’t require employers to provide workers with paid or unpaid vacation leave.
Many employers choose to provide vacation leave as part of a benefits packages to attract employees, however. In these situations, employers may set the policies, terms and conditions as to how and when such a benefit is used – including “use it or lose it” policies that state that terminating employees forfeit accrued but unused vacation time.
Statute of limitations
New Hampshire’s deadline for filing an overtime claim adheres to the FLSA, which requires those seeking to recover unpaid back overtime wages file a lawsuit within two years from the date of the employer’s wage violation. So, a lawsuit filed today would be able to seek recovery of back overtime for only the prior 2 (sometimes 3) years.
As an example, suppose you believe that your employer has failed to pay you proper overtime wages since January 1, 2016. Waiting until June 1, 2019, to file your lawsuit means you are only allowed to seek unpaid wages from June 1, 2017, to June 1, 2019.
The statute of limitations may be extended to three years if an employer’s violation of the FLSA was willful. An FLSA violation is deemed willful if the employer knew that its conduct was prohibited by the FLSA or showed reckless disregard.
Penalties for Violations
Under federal law, employers who fail to pay proper overtime wages may be liable for up to double the amount of unpaid back wages plus costs and attorney’s fees incurred by employees. These cases can be brought by overtime pay lawyers on a class or collective basis on behalf of all workers who were subjected to the same illegal pay practices.
Layoffs, Plant Closings and WARN Notices
The Worker Adjustment and Retraining Notification Act (WARN) offers protection to New Hampshire workers, their families and communities by requiring employers to provide notice 60 days in advance of covered plant closings and covered mass layoffs. This notice must be provided to either affected workers or their representatives (e.g., a labor union).
An employer who violates the WARN Act by failing to provide appropriate notice is liable to each employee for an amount up to 60 days back pay and benefits for the period of violation.
On your side
At the Lore Law Firm, we represent salaried, hourly, and day-rate workers in an array of employment litigation matters, including unpaid overtime compensation claims in New Hampshire. Our attorneys, and the New Hampshire overtime law attorneys we associate with, are passionate about protecting the rights of workers and have helped recover millions of dollars in unpaid overtime wages for our clients.
Contact us for a free and confidential review of your situation.