NEW HAMPSHIRE LEGISLATURE PASSES SEVERAL LAWS THAT IMPACT EMPLOYERS
August 13, 2014
The 2014 New Hampshire Legislature passed several laws this session that affect employers. The laws outlined below have been passed by both houses and have been signed by the governor. They either have become effective or will become effective within the next several months.
Equal Pay: The Paycheck Fairness Act (Senate Bill 207) prohibits discrimination in the workplace by paying employees of one sex at a rate less than the rate paid to employees of another sex. Although disparate pay based on gender has been unlawful in New Hampshire for decades, Senate Bill 207 repeals the current law (RSA 275:37 (Equal Pay)) and clarifies, updates and limits the factors upon which disparate pay may be justified.
In addition, the new bill requires employers to post a statement that "It is illegal in New Hampshire under both state and federal law to pay employees different wages for the same work based solely on sex. If you think that your employer has violated this provision, please contact the New Hampshire Department of Labor." Per statute, this notice must also include the address, phone number, and email address of Department of Labor personnel to be contacted with complaints and a link to the law.
Senate Bill 207 imposes stiff penalties and sanctions for violations, including criminal liability and civil penalties of up to $2500 per violation. In addition to RSA 275:37, disparate treatment on the basis of sex is prohibited by RSA 354-A, New Hampshire's Law against Discrimination, which falls under the jurisdiction of the NH Commission for Human Rights. As a result, violations under RSA 275:37 have often been referred by the NH Department of Labor to the Human Rights Commission. It is not clear how, if at all, the revisions to RSA 275:37 could change this process. Senate Bill 207 becomes effective January 1, 2015.
Disclosing Wages: The Paycheck Fairness Act, in conjunction with accompanying legislation House Bill 1188, makes it unlawful for an employer to prohibit employees from disclosing the amount of their wages to employees or other individuals. It further prohibits employers from discharging, formally disciplining, or otherwise discriminating against an employee because s/he discloses the amount of his or her wages, salary or benefits.
Violations of the wage disclosure provisions are also subject to penalties and sanctions for violations, including criminal liability and civil penalties of up to $2500 per violation. The major provisions of House Bill 1188 become effective on January 1, 2015, with Senate Bill 207.
Social Media: House Bill 1407 makes it unlawful for an employer to "request or require . . . an employee or prospective employee" to "disclose login information for accessing any personal account . . ." Basically, an employer cannot force an employee or an applicant for employment to allow the employer access to his/her private social media (e.g. Facebook) account. In addition, an employer may not force an employee or an applicant for employment to "add" the employer to his/her list of contacts (e.g. "friends") on any social media account or require the employee or applicant to lower his/her privacy settings so that the employer can view his/her online profile.
While House Bill 1407 will limit an employer's ability to access an employee/applicant's private information, it has no effect on an employer's ability to view and access otherwise public social media accounts. In addition, it does not limit an employer from monitoring employee internet use. House Bill 1407 becomes effective September 30, 2014.
Non-Compete Agreements: As discussed in our last newsletter, Senate Bill 351 replaces the 2012 version of RSA 275:70 with an entirely new statute. The new law requires that:
Any employer who requires an employee who has not previously been employed by the employer to execute a noncompete agreement as a condition of employment shall provide a copy of such agreement to the potential employee prior to the employee's acceptance of an offer of employment. A noncompete agreement that has not been disclosed to an employee as required by this section shall not be enforceable against the employee, but all other provisions of any employment, confidentiality, nondisclosure, trade secret, intellectual property assignment, or any other type of employment agreement or provision shall remain in full force and effect.
While the new language is not without its flaws and may well be subject to court interpretation, it does appear to fix some restrictions that were problematic for employers under the 2012 version of RSA 275:70. In particular, the new version does not appear to limit an employer's ability to obtain non-compete agreements from existing employees, and appears to allow employers to obtain and enforce confidentiality/nondisclosure agreements, whether or not they were disclosed at the time of hire. Senate Bill 351 became effective July 28, 2014.