Municipal Employment - Legal Relationships and Obligations
The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.
Q: When must an employee be permitted to take a break?
A: An employer may not require an employee to work more than 5 consecutive hours without granting him a 1/2 hour lunch or eating period, except if it is feasible for the employee to eat during the performance of his work, and the employer permits him to do so.
Q: Must breast feeding mothers be given any additional break time?
A: The Fair Labor Standards Act (FLSA) provides that breast feeding mothers are entitled to break time to express breast milk and be given a space to express their breast milk in private, not in a bathroom. Under the Patient Protection and Affordable Care Act (“PPACA”), which amended provisions of the FLSA, employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for one (1) year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”
Q: Can a municipality hire a resident alien?
A: There is no law in the State of New Hampshire that prohibits the hiring of a resident alien by a New Hampshire municipality. The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to discriminate with respect to hiring, firing, or recruitment based upon an individual’s citizenship or immigration status. The law prohibits employers from hiring only U.S. citizens or lawful permanent residents unless required to do so by law, regulation, or government contract.
Q: Is equal pay for men and women mandated by New Hampshire law?
A: Yes, RSA 275:37 prohibits discrimination between employees on the basis of sex. An employer cannot pay employees of one sex at a rate less than the rate paid to employees of the other sex for equal work that requires equal skill, effort, and responsibility and that is performed under similar working conditions.
Q: Are there circumstances that would permit unequal pay between men and women?
A: It is permissible to pay employees of one sex at a rate less than the rate paid to employees of the other sex if such unequal pay rates are due to:
(a) A seniority system;
(b) A merit or performance-based system;
(c) A system which measures earnings by quantity or quality of production;
(d) Expertise;
(e) Shift differentials;
(f) A demonstrable factor other than sex, such as education, training, or experience.
Q: What penalties can be imposed on an employer for illegal pay discrimination?
A: An employer guilty of illegal gender pay discrimination under RSA 275:37 is liable to the employee affected for double damages, equaling two times the amount of the unpaid wage difference. In addition, the municipal employer would be found guilty of a misdemeanor and subject to a fine of not more than $2,500.
Q: Can an employer prohibit an employee from disclosing her pay to her fellow employees?
A: No employer can prohibit an employee from disclosing the amount of his or her wages, nor can an employer require an employee sign a waiver denying the employee the right to disclose the amount of his or her wages, salary, or paid benefits. No employer can discharge, discipline, or otherwise discriminate against an employee because she discloses the amount of her wages, salary, or paid benefits. RSA 275:41-b.
Q: Can an employer mandate access to an employee’s or job candidate’s social media accounts?
A: No employer can require that an employee or prospective employee permit access to any social media account. RSA 275:74. No employer shall take or threaten disciplinary action against any employee for refusal to comply with a request for access to a social media account. This does not prohibit an employer from obtaining information about an employee or prospective employee that is in the public domain. Employers may still adopt lawful workplace policies governing the use of the employer’s electronic equipment, including policies regarding internet use, social networking site use, and electronic mail use. Employers may monitor usage of the employer’s electronic equipment and electronic mail and in certain circumstances require login information for access to: (1) an account or service provided by virtue of the employee’s employment relationship with the employer or (2) an electronic communications device or online account paid for or supplied by the employer.
Q: How must wages be paid to municipal employees?
A: Municipal employers may pay employee wages in the following ways:
(a) In cash;
(b) By electronic fund transfer;
(c) By direct deposit with written authorization to banks of the employee’s choice;
(d) By a payroll card provided: (i) the employee has least one free means to withdraw the full amount of the employee’s payroll card during each pay period at a location convenient to the place of employment and (ii) none of the employer’s costs associated with a payroll card or payroll card account is passed on to the employee; or
(e) With checks on a financial institution convenient to the place of employment where suitable arrangements are made for the cashing of such checks by employees for the full amount of the wages due.
All non-cash payment methods shall first offer the option of being paid via a check. RSA 275:43.
Q: Can an employee who is a designated member of a collective bargaining unit be compelled to join the union?
A: An employee who is designated a member of a collective bargaining unit under a collective bargaining agreement is not required to join the union organization. However, as provided in Nashua Teachers Union v. Nashua School District, 142 N.H. 683 (1998), the employee who declines to join the union may still be assessed agency fees and be asked pay for the costs of collective bargaining.
Q: Is a municipality required to deduct union dues or agency fees from the wages of an employee who is part of a collective bargaining unit?
A: Without written authorization from the employee to permit specific deductions from his or her paycheck as required by RSA 275:48, the town cannot deduct the union dues or agency fees. The union organization would have to collect the union dues or agency fees directly from the employee.
Q: How must overtime be calculated for fire protection and law enforcement personnel?
A: Section 7(k) of the FLSA provides that employees engaged in fire protection or law enforcement may be paid overtime on a “work period” basis. A “work period” may be from 7 consecutive days to 28 consecutive days in length. For work periods of at least 7 but less than 28 days, overtime pay is required when the number of hours worked exceeds the number of hours that bears the same relationship to 212 (fire) or 171 (police) as the number of days in the work period bears to 28. For example, fire protection personnel are due overtime under such a plan after 106 hours worked during a 14-day work period, while law enforcement personnel must receive overtime after 86 hours worked during a 14-day work period.
Q: What information must be documented in writing when a person begins municipal employment?
A: Every employer at the time of hire shall notify new employees in writing as to the rate of pay or salary, the frequency of pay, as well as the day of payday and the specific methods used to determine wages due pursuant to RSA 275:49. That notice should include a detailed description of employment practices and policies as they pertain to paid vacations, holidays, sick leave, bonuses, severance pay, personal days, payment of the employee’s expenses, pension, and all other fringe benefits. That written notice must also include a statement of information regarding the deductions from pay that would be permitted by written authorization of the employee as provided in RSA 275:48. NH Admin. Code Lab 803.03
Q: What personnel, wage, and other employment records are required to be kept by each employer?
A: Employers are required to keep the following employment records:
(1) Payroll information so that time records, showing the time work began and ended including any bona fide meal periods, shall support individual pay sheets and that payroll sheets, in turn, shall support canceled checks or cash receipts.
(2) Any time records with entries that are altered shall be signed or initialed by the employee whose record was altered (the use of automated time keeping devices or software 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 are prohibited).
(3) Make records that show the exact basis of remuneration of an employee’s compensation.
(4) Make such records to show other than an employer-employee relationship such as an independent contractor relationship.
(5) Keep a record of hours worked by all of its employees except for employees who are exempt under 29 U.S.C. section 213 (a) of the Fair Labor Standards Act. Said records shall be preserved and stored for a period of no less than 4 years. NH Admin Code Lab 803.03.
Q: What records maintained by an employer are considered part of the personnel file?
A: As provided in NH Admin Code Lab 802.09, “personnel file” as used in RSA 275:56 means any personnel records created and maintained by an employer and pertaining to an employee including and not limited to employment applications, internal evaluations, disciplinary documentation, payroll records, injury reports and performance assessments, whether maintained in one or more locations, unless such records are exempt from disclosure under RSA 275:56, III or are otherwise privileged or confidential by law. The term does not include recommendations, peer evaluations or notes not generated or created by the employer.
Q: Can a town employee volunteer to do work for the town?
A: An individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation, or receipt of compensation for the services rendered is considered to be a volunteer during those hours. However, under the 1985 Fair Labor Standards Act Amendments, an individual is not considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer. This limitation is found in the statutory definition of “employee” (section 3(e)(4) of the FLSA, 29 U.S.C. Sec. 203(e)(4)). Consequently, under the FLSA, a person employed as a member of the public works department could not volunteer to direct traffic at the Fourth of July parade. He would have to be paid his ordinary salary or hourly pay for any “volunteer” hours where he worked performing labor as the road agent.
Q: Can a volunteer undertake fundraising activities on behalf of a municipality?
A: There could be two ways an individual citizen might get involved with fundraising activities. First, in certain instances, a statutory board or body of the town is authorized to conduct fundraising activities. For example, under RSA 674:44-b (I) (h), a heritage commission has authority to “[r]eceive gifts of money and property, both real and personal, in the name of the city or town, subject to the approval of the city council in a city or the board of selectmen in a town, such gifts to be managed and controlled by the commission for its proper purposes.” The ability to receive gifts of money and property both real and personal implies the ability to solicit those gifts of money and property.
Second, individual citizens may seek to raise funds for ad hoc events or purposes, such as a town anniversary event. In such instances where the town meeting has authorized the select board to hold gifts in trust under RSA 31:19, the select board should establish written policies that dictate that such fundraising would require written authorization by the select board, as well as requirements that all receipts and disbursements would be handled through the municipality’s accounting system and that periodic reports would be made to the select board on the status of all receipts and disbursements. Handling donations in this fashion would also afford beneficial tax treatment for the donor because all donations to a town or city would be tax deductible under Sections 170 (a)(1) and 170 (c)(1) of the Internal Revenue Code.
If a group of individuals wishes to conduct charitable fundraising, they should be informed that select board approval is required under RSA 31:91, as well as registration with the Division of Charitable Trusts of the New Hampshire Attorney General’s office. The individuals would be strongly encouraged to register as a non-profit for IRS purposes.
Stephen Buckley is Legal Services Counsel with the New Hampshire Association. He may be contacted at 800.852.3358 ext. 3408 or at legalinquiries@nhmunicipal.org.