HR REPORT: Notice of Suspension for Public Employees: New Requirements Coming

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. 

New Hampshire public employers, including towns and cities, will soon be subject to new requirements relating to the notice provided to employees who are suspended. The New Hampshire legislature has passed HB 1109, relating in its relevant part to “notice requirements regarding public employee suspensions and investigations,” which will go into effect on January 1, 2027. 

The new law, which once effective will be RSA 275:84, provides that “if any public employee is suspended from duty, with or without pay, the public employee shall receive written notice…stating the cause of the suspension and the anticipated duration, if known.” The law requires that employers provide this notice to employees within seven (7) days of the suspension date. It also requires the employer to provide “periodic updates regarding the status of their suspension” every 90 days “until a final decision is made.” 

While the new requirements may appear simple, public sector employers should be wary of a few issues when this law goes into effect. 

First, the new law does not define “suspended from duty” and there isn’t an otherwise generally accepted definition for the term.  For example, at the State level, “suspension” is defined as “a leave of absence with or without pay for investigative or disciplinary purposes,” while many other employers separate the concept of a disciplinary suspension from a non-disciplinary investigative leave, commonly referred to as “administrative leave.” See N.H. Code Admin. Rules, Per 102.93, 604.01(b)(8)f. More consistent with the latter approach, when considering how an unpaid suspension affected an employee’s seniority, the New Hampshire Supreme Court described a “disciplinary suspension” as an “involuntary absence from work for the employer’s purpose.” See Appeal of Flynn, 145 N.H. 422 (2000). Where the law is unclear, it will be prudent for public employers to ensure they review their own employment policies, contracts, or collective bargaining agreements and identify how they currently use “suspension” or “suspended.” At a minimum, if the employer informs an employee that they are “suspended,” the employer should comply with the standards established in the new law. 

Second, we anticipate disputes may arise regarding the amount of detail that employers must provide to employees regarding the “cause” of the suspension. While ultimately a court may decide what information needs to be included, the law itself does not require anything specific or detailed and some employees may, in fact, prefer less detail in a written notice in light of the court’s current interpretation of RSA 91-A. Cautious employers may wish to reach out to counsel early in a disciplinary/suspension process to discuss the options and risks to receive guidance. 

Third, the law provides a notable exception to the new requirements: it does not apply to any public employee that is employed under a collective bargaining agreement which establishes procedures relating to disciplinary actions including suspension. On its face, this exemption reads rather broadly—but employers will want to review their contract(s) closely to ensure that they have a good faith basis to exempt their bargaining unit employees based on the language they have negotiated with their union(s). 

Ultimately, while HB1109 may be somewhat unclear, it does encourage best practices for public sector employers by requiring: (1) clear communication with employees about their status and the basis for any action taken by the employer, and (2) reasonable updates about that status. Those concerned about implementation of the new law should consult with legal counsel to ensure compliance and minimize risk in the new year.

The information contained in this article is not intended as legal advice and the law may change from time to time, rendering this article outdated. It is recommended that you consult with NHMA’s legal services or your municipal attorney with questions.