by Jeanine Poole

Eight sections of New Hampshire’s Protective Legislation (RSA 275:37, 38, 38-a, 40, 41-a, 41-b, 41-c, and 41-d) will be modified effective January 1, 2015. RSA 275:37 will prohibit employers and persons seeking employees from discriminating between employees on the basis of sex by paying employees of one sex less than employees of the other sex for equal work that (1) requires equal skill, effort, and responsibility and (2) is performed under similar working conditions.

There are exceptions that permit different wage rates when the different payment is made pursuant to:

• A seniority system;
• A merit or performance-based system;
•  A system that measures earnings by quantity or quality of production;
• Expertise;
• Shift differentials; or
• A demonstrable factor other than sex (such as education, training, or experience).

RSA 275:38-a,I will prohibit employers from discharging or discriminating against an employee in any manner because he or she:

• Makes a charge, files a complaint, or institutes or causes to be instituted an investigation, proceeding, hearing, or action under or related to the equal pay requirements, including an investigation conducted by the employer, or has testified, plans to testify, or has assisted or participated in any manner in any such investigation, proceeding, hearing, or action; or
• Inquired about, discussed, or disclosed his or her wages or the wages of another employee.

RSA 275:38-a,II provides that these restrictions:

Shall not apply to any employee who has access to the wage information of other employees as a part of [his or her] essential job functions who discloses the wages of . . . other employees to individuals who do not otherwise have access to such information, unless such disclosure is in response to a complaint or charge or in furtherance of an investigation, proceeding, hearing or action, . . .  including an investigation conducted by the employer.

Another new section of the statute likely will make it easier for employees to obtain wage information. RSA 275:41-b will prohibit employers from requiring an employee to:

• Refrain from disclosing the amount of his or her wages; or
• Sign a waiver or other document that purports to deny the employee the right to disclose the amount of his or her wages, salary, and benefits.

Employers that violate the equal pay laws will be subject to a fine of not more than $2,500. Employees may seek unpaid wages and liquidated damages for violations of RSA 275:37. The new statute also extends the amount of time employees have to pursue claims for unpaid wages. Under RSA 275:37, employees must commence a claim within three years of discovering a violation, and claims may not include violations that occurred more than four years before the commencement of the claim.

The New Hampshire Department of Labor (NHDOL) has issued a mandatory poster outlining the changes in the law. The new poster is available at http://www.nh.gov/labor/documents/equal-pay-poster.pdf and should be posted with your employment-related posters (in a “conspicuous place”) by January 1, 2015.             

For more information on these modifications to the law, see the December issue of New Hampshire Employment Law Letter.

Jeanine Poole is an attorney with Sulloway & Hollis, P.L.L.C. She can be reached at jpoole@sulloway.com.