Wage and Hour Compliance in Tough Times
| Jurisdiction | United States,Federal,New Hampshire |
| Citation | Vol. 50 No. 2 Pg. 0036 |
| Pages | 0036 |
| Publication year | 2009 |
2009 Fall, Pg. 36. Wage and Hour Compliance in Tough Times
Volume 50, No. 2
Fall 2009
INTRODUCTION
This has been a challenging year, especially for employers. The recession hit New Hampshire nearly a year ago and the economy has not stabilized yet. Organizations of all types and sizes have reduced expenses, trimmed payrolls and eliminated positions in an effort to keep the doors open and the lights on. In the meantime, Congress and the New Hampshire legislature have created new obligations for employers and wage complaints by employees have increased. According to a United States Department of Labor representative, "When there is an economic downturn with high unemployment, the Wage and Hour Division has seen an increase in wage violations."(fn 1 )
The stakes are higher than ever for employers. In addition to employee wage claims, inspectors for federal and state departments of labor have been active in their workplace audits and inspections. Civil penalty assessments have been climbing. In 2007, New Hampshire civil penalties per cited violation (per violation/employee per day) increased from $1,000 to $2,500.(fn 2 ) In 2008, the NHDOL collected over $ 1.4 million in wages due employees. 2009 may see an increase in penalties and wages due. The USDOL also has stepped up its enforcement actions. Those added costs could be devastating to employers. This article will discuss recent developments in federal and New Hampshire state wage and hour laws to help employers and their representatives navigate this ever-changing and often vexing area of labor law.
LAWS THAT APPLY AND TO WHOM Federal
The United States Department of Labor Wage and Hour Division (WHD) of the Employment Standards Administration (ESA)(fn 3 ) is responsible for enforcing federal wage laws regarding the minimum wage, overtime pay, record-keeping and youth employment. The Fair Labor Standards Act (FLSA)(fn 4 ) establishes the federal minimum wage, overtime pay requirements, child labor restrictions and recordkeeping standards applicable to most private and public employees.
The FLSA applies to all employees of covered enterprises, which are "engaged in interstate commerce, producing goods for interstate commerce or handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any person." (fn 5 ) Covered entities must meet one of the following criteria:
1. have annual gross volume of sales made or business done not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated); or
2. engage in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged or the mentally ill who reside on the premises; a school for mentally or physically disabled or gifted children; a preschool, an elementary or secondary school, or an institution of higher education (whether operated for profit or not for profit); or
3. engage in activities of a public agency.(fn 6 )
The FLSA also may apply to individual employees of organizations which are not covered enterprises, if the employees are themselves engaged in interstate commerce, in the production of goods for interstate commerce, or in any closely related process or occupation directly essential to such production. These include employees who work in communications or transportation; regularly use the mails, telephones or telegraph for interstate communication; keep records of interstate transactions; handle, ship or receive goods moving in interstate commerce; regularly cross state lines in the course of employment; or work for independent employers who contract to do clerical, custodial, maintenance or other work for firms engaged in interstate commerce or in the production of goods for interstate commerce.
The FLSA excludes certain interstate businesses or employees, so employers should review the statute and regulations to determine if they fall under one of the exemptions. For example, truck drivers covered by U.S. Department of Transportation requirements do not receive the protections of the FLSA.
New Hampshire
In New Hampshire, the Department of Labor (NHDOL) monitors employers to ensure their compliance with NH minimum wage, overtime, safety and workers compensation laws. The NHDOL administers wage and hour laws which include: RSA 273 "Department of Labor," RSA 275 "Protective Legislation," RSA 276-A Youth Employment, and RSA 279, "Minimum Wage Law." New Hampshire Administrative Rule Chapter Lab 800 further interprets and outlines wage payment requirements for employers.
The NH statute relating to wage payments defines employer as "an individual, a partnership, an association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased individual, or the receiver, trustee, or successor or any of the same, employing any person, except employers of domestic labor in the home of the employer, or farm labor where less than 5 persons are employed."(fn 7 )
INSPECTIONS AND AUDIT
New Hampshire
RSA 273:9 grants the NHDOL broad authority to investigate compliance with state labor and employment laws.
The commissioner shall, at such times as he shall deem it necessary and without notice, visit the manufacturing, mechanical and mercantile establishments in the state, so far as practicable, for the...
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