Chapter 279: Minimum Wage Law

Terms used in this chapter shall be construed as follows, unless a different meaning is clearly apparent from the language or context:

I. "Commissioner," the labor commissioner.

II-IV. [Repealed.]

V. "Occupation," an industry, trade or business or branch thereof or class of work therein in which employees are gainfully employed, but shall not include domestic service in the home of the employer or labor on a farm.

VI-IX. [Repealed.]

X. "Employee" means and includes every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, but shall not include any person exempted from the definition of employee as stated in RSA 281-A:2, VI(b)(2), (3), or (4), or RSA 281-A:2, VII(b), or any person who has entered into a contract to play baseball at a minor league level and who is compensated pursuant to the terms of a collective bargaining agreement that expressly provides for wages and working conditions, or a person providing services as part of a residential placement for individuals with developmental, acquired, or emotional disabilities, or any person who meets all of the following criteria:

(a) The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter.

(b) The person has control and discretion over the means and manner of performance of the work, in that the result of the work, rather than the means or manner by which the work is performed, is the primary element bargained for by the employer.

(c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to completion schedule, range of work hours, and maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented.

(d) The person hires and pays the person's assistants, if any, and to the extent such assistants are employees, supervises the details of the assistants' work.

(e) The person holds himself or herself out to be in business for himself or herself or is registered with the state as a business and the person has continuing or recurring business liabilities or obligations.

(f) The person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work.

(g) The person is not required to work exclusively for the employer.

XI. "Employer" shall include any individual, partnership, association, joint stock company, trust, corporation, limited liability company, the administrator or executor of the estate of a deceased individual, or the receiver, trustee, or successor of any of the same, employing any person.

XII. "Tip" means money given to an employee by a customer, in cash or its equivalent, or transferred to the employee by the employer pursuant to directions from a credit card customer who designates a sum to be added to the bill as a tip, or added as a gratuity to a customer's bill, in recognition of service performed.

XIII. "Tip pooling" means the voluntary practice by which the tip earnings of directly tipped employees within the same job category are intermingled in a common pool and then redistributed among participating employees.

XIV. "Tip sharing" means the practice by which a directly tipped employee gives a portion of his or her tips to another worker who participated in providing service to customers.

XV. "Coercion" means the threat of or a direct action which results in an adverse effect on an employee's economic or employment status.

XVI. "Ballroom" means an indoor facility which has seating accommodations for at least 500 patrons, provides live entertainment, and is licensed by the New Hampshire liquor commission.

The commissioner or any representative duly authorized by him shall have full power and authority:

I. To investigate and ascertain the wages of employees employed in any occupation in the state;

II. To enter the place of business or employment of any employer of employees in any occupation for the purpose of examining and inspecting any and all books, registers, payrolls, and other records of any employer of employees that in any way appertain to or have a bearing upon the question of wages of any such employees and for the purpose of ascertaining whether the orders of the commissioner have been and are being complied with; and

III. To require from such employer full and correct statements in writing of the wages paid to all employees in his employment.

The commissioner shall adopt rules under RSA 541-A for the purpose of carrying out the provisions of this chapter.

Except as otherwise provided by statute, any party aggrieved by a written decision of the commissioner may appeal such decision to the superior court not later than 20 days from the date thereof by petition setting forth that the decision is erroneous, in whole or in part, and specifying the grounds upon which the decision is claimed to be in error. Upon the filing of an appeal, the commissioner shall transfer to the court the record of the proceeding or a certified copy thereof. The scope of review by the superior court shall be limited to questions of law; however, the court may consider newly discovered evidence. After hearing and upon consideration of the record, the court may affirm, vacate, or modify, in whole or in part, the decision of the commissioner or may remand the same to the commissioner for further findings. In the absence of a seasonable appeal, the decision and order shall be final.

Unless otherwise provided by statute, no person, firm, or corporation shall employ any employee at an hourly rate lower than that set forth in the federal minimum wage law, as amended. Tipped employees of a restaurant, hotel, motel, inn or cabin, or ballroom who customarily and regularly receive more than $30 a month in tips directly from the customers will receive a base rate from the employer of not less than 45 percent of the applicable minimum wage. If an employee shows to the satisfaction of the commissioner that the actual amount of wages received at the end of each pay period did not equal the minimum wage for all hours worked, the employer shall pay the employee the difference to guarantee the applicable minimum wage. The limitations imposed hereby shall be subject to the following exceptions:

Unless otherwise provided by statute, no person, firm, or corporation shall employ any employee at an hourly rate lower than that set forth in the federal minimum wage law, as amended. Tipped employees of a restaurant, cigar bar as defined in RSA 178:20-a, II, hotel, motel, inn or cabin, or ballroom who customarily and regularly receive more than $30 a month in tips directly from the customers will receive a base rate from the employer of not less than the minimum direct wage as set forth in the federal minimum wage law, as amended, but in no case less than $3.27 per hour. If such an employee shows to the satisfaction of the commissioner that the actual amount of wages received at the end of each pay period did not equal the minimum wage for all hours worked, the employer shall pay the employee the difference to guarantee the federal statutory minimum wage. The limitations imposed hereby shall be subject to the following exceptions:

I. These limitations shall not apply to employees engaged in household labor, domestic labor, farm labor, nor to outside salesmen, nor to employees of summer camps for minors.

II. These limitations shall not apply to employees engaged as newsboys, non-professional ski patrolmen or golf caddies.

III. [Repealed.]

IV. These limitations shall not apply to a person with less than 6 months' experience in an occupation; provided, however, such person shall not be paid less than 75 percent of applicable statutory minimum wage in an occupation, after application is filed by the employer with the labor commissioner within 10 days after hire.

V. These limitations shall not apply to a person 16 years of age or under; provided, however, such person shall not be paid less than 75 percent of applicable statutory minimum wage rate and evidence of such person is kept on file by the employer.

V-a. These limitations shall not apply to an employee of a ski area who exclusively performs welcoming and guest relation services at a ski area which are not essential to the functional operations of a ski area.

VI, VII. [Repealed.]

VIII. Those employees covered by the introductory paragraph of this section, with the following exceptions, shall, in addition to their regular compensation, be paid at the rate of time and one-half for all time worked in excess of 40 hours in any one week:

(a) Any employee employed by an amusement, seasonal, or recreational establishment if:

(1) It does not operate for more than 7 months in any calendar year; or

(2) During the preceding calendar year, its average receipts for any 6 months of such year were not more than 33-1/3 percent of its average receipts for the other 6 months of such year. In order to meet the requirements of this subparagraph, the establishment in the previous year shall have received at least 75 percent of its income within 6 months. The 6 months, however, need not be 6 consecutive months.

(b) Any employee of employers covered under the provisions of the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. section 201, et seq.); provided however, employers that pay any delivery drivers or sales merchandisers an overtime rate of compensation for hours worked in excess of 40 hours in any one week shall not calculate such overtime rate of compensation by the fluctuating workweek method of overtime payment under 29 C.F.R. section 778.114.

For the purposes of employment in the hotel, motel, cabin, tourist home and restaurant industries, an employer shall be entitled to deduct from the minimum wage pursuant to RSA 279:21 allowances for meals and lodging. The maximum amounts of such deductions shall be as follows:

I. Full Board and Room (Weekly) $45.00 Full Board and Room (Daily) 6.45 II. Meals (Weekly) 39.45 Meals (Per Meal) 1.88 III. Lodging (Weekly) 10.88 Lodging (Daily) 1.80

Except as provided in RSA 279:22-aa and RSA 279:26-a, no person shall employ any individual with a disability as an employee at an hourly rate lower than that set forth in RSA 279:21.

I. Upon application by a participating employer or proper school authority, the labor commissioner may establish a sub-minimum wage rate, or no rate, for high school or post secondary students working for practical experience, if circumstances warrant. Guidelines shall be established by the labor commissioner to determine whether an employer-employee relationship exists between participating parties for such work in respect to existing labor laws. No such student shall be allowed to replace an existing worker or a laid-off worker.

II. Upon application by a proper post-secondary organization or rehabilitation facility as defined by and in a manner established by the labor commissioner, the commissioner may establish a practical experience/training program at a sub-minimum wage rate or no wage rate for individuals with disabilities. If such program is established, the commissioner shall establish guidelines to determine whether an employer-employee relationship exits between the parties for work performed through the program that is consistent with state and federal law. No such individual with disabilities, while in the program, shall be allowed to replace an existing worker or a laid-off worker.

The commissioner of labor is hereby directed to readjust minimum wages for employees insofar as it may be necessary in view of the provisions of RSA 279:21 and 22.

The provisions of this chapter shall not apply to a child employed by his parents, grandparents, or a person or persons in place of his parents or grandparents, employing his own child, grandchild or a child in his custody, who furnishes full maintenance to such child. Nor shall the provisions apply to a spouse working for the other spouse on a volunteer basis when the spouse who works does not expect or claim any pay for the work, other than the support derived from the other spouse's profits in the business.

I. Tips are wages and shall be the property of the employee receiving the tip and shall be retained by the employee, unless the employee voluntarily and without coercion from his or her employer agrees to participate in a tip pooling or tip sharing arrangement.

II. No employer is precluded from administering a valid tip pooling or tip sharing arrangement, including suggesting reasonable and customary practices, documenting agreed upon practice, and mediating disputes between employees regarding a valid tip pooling or tip sharing arrangement, provided that the employer does not require or coerce employees to participate in the tip pooling or tip sharing arrangement.

III. Nothing shall preclude employee participants in a tip pool from agreeing, voluntarily and without coercion from the employer, to provide a portion of the common pool to other employees, regardless of job category, who participated in providing service to customers.

Every employer of employees shall keep a true and accurate record of the hours worked by each, wages paid to each, and classification of employment when necessary, and shall furnish to the commissioner or the commissioner's authorized representative upon demand a sworn statement of the same. Employers shall retain such records of hours and wages for 3 years and such records shall be open to inspection by the commissioner or the authorized representative at any reasonable time, subject to the provisions of RSA 273:9. Every employer subject to a statutory minimum wage shall post and make available to his or her employees a copy of such statutory minimum wage. Employers shall be furnished copies of posters on request without charge. Records required by this section may be made, signed, acknowledged, approved, and retained electronically.

I. [Repealed.]

II. Any employer or the officer or agent of any corporation who pays or agrees to pay to any employee less than the rates applicable to such employee under the statutory minimum wage shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person. Each week in any day of which such employee is paid less than the rate applicable to him under the statutory minimum wage and each employee so paid less shall constitute a separate offense.

III. Any employer or the officer or agent of any corporation who fails to keep the records required hereunder, or refuses to permit the commissioner or his authorized representative to enter his place of business, or fails to furnish such records to the commissioner or his authorized representative upon request shall be guilty of a violation if a natural person, or guilty of a misdemeanor if any other person. Each day of such failure to keep the records requested hereunder or to furnish the same to the commissioner or his authorized representative shall constitute a separate offense.

If any employee is paid by the employer less than the minimum wage to which the employee is entitled under the statutory minimum wage the employee may recover in a civil action the full amount of such minimum wage less any amount actually paid to the employee by the employer together with costs and such reasonable attorney's fees as may be allowed by the court, and any agreement between the employee and the employee's employer to work for less than the statutory minimum wage shall be no defense to such action. At the request of any employee paid less than the minimum wage to which the employee was entitled under the statutory minimum wage the commissioner may take an assignment of such wage claim in trust for the assigning employee and may bring any legal action necessary to collect such claim, and the employer shall be required to pay the costs and such reasonable attorney's fees as may be allowed by the court.