BIA REPORT
Employment Law Update
State and federal developments of interest to New Hampshire employers
April 2001 issue:
By Andrea Johnstone and Anne Scheer*
Withholding of Wages
The New Hampshire Department of Labor continues to be faced with, and issue numerous opinions, regarding employers withholding wages for various reasons. New Hampshire law prohibits withholding of wages except in very limited circumstances. New Hampshire RSA 275:48, I, prohibits an employer from withholding or diverting any portion of an employee's wages unless: (a) the employer is required or empowered to do so by state or federal law, or (b) the employer has written authorization by the employee for deductions for a lawful purpose accruing to the benefit of the employee as provided by regulations issued by the Commissioner of Labor, or (c) the deductions are pursuant to any rules or regulations for medical, surgical, or hospital care or services without financial benefit to the employer and openly, clearly and in due course recorded in the employer's books.
The New Hampshire Department of Labor's Administrative Regulations only authorize the following deductions as being for an employee's benefit: (a) installment payments of legitimate loans made by the employer to the employee; (b) union dues; (c) health, welfare pension and apprenticeship fund contributions; (d) strictly voluntary contributions to charities; (e) housing and utilities; (f) payments into savings funds held by someone other than the employer; (g) voluntary rental fees for non-required clothing; (h) voluntary cleaning of uniforms and non-required clothing; (i) the employee's use of a demonstrator vehicle covered by RSA 261:111, III; and (j) required clothing not covered by the definition of "uniforms" in Lab 802.14.
An employer who wishes to recoup funds from an employee for anything other than what is listed above cannot withhold the money from wages but can sue the employee for what is owed. However, given the cost of litigation and the difficulty of enforcing a judgment received against an employee, rarely is this a practical option.
Check Your Sexual Harassment Policy
A federal court covering the states of Alabama, Florida and Georgia, recently ruled that an employer was put on notice of an employee's sexual harassment complaint once the employee brought the complaint to her manager, although the employee never gave notice to anyone else in the Company. The court ruled that the employee had no duty to pursue her complaint further up the company ladder.
The sexual harassment policy at issue stated that an employee who was subjected to or who witnessed harassment "must immediately notify his or her manager. If the problem is not resolved, that associate should contact the personnel department." The court ruled that the only mandatory requirement of this policy was that an employee notify his or her manager. The court stated that notification to the personnel department under this policy was discretionary.
Check your company's sexual harassment policy to be sure that all steps in the reporting procedure are mandatory and that the company is confident the person(s) to whom employees are directed to report will handle the complaint properly.
Written Anti-Discrimination Policies Are Not Enough
On December 7, 2000, the U.S. Court of Appeals for the First Circuit, held that written anti-discrimination policies, without more, are "insufficient to insulate an employer from punitive damages liability." The Court ruled that in order to avoid punitive damages, a defendant must show it has made efforts "to implement its anti-discrimination policy, through education of its employees and active enforcement of its mandate."
The Court found that although the defendants did distribute written anti-discrimination materials, and instructed managers and supervisors that employment decisions were not to be based on discriminatory factors, defendants showed no evidence of an "active mechanism for renewing employees' awareness of the policies through either specific education programs or periodic redissemination or revision of their written materials." The Court also found no evidence of supervisory training to prevent discrimination and no evidence showing the company's antidiscrimination policies were successfully followed. The Court noted that it did not require evidence of all of these factors in order to qualify for a good faith defense, but some such factors must be present. Romano v. U-Haul International, (First Circuit, 12/7/00).
Copyright 2001. This article originally appeared in BIA Report, April 2001.
* Anne Scheer is admitted in New Hampshire.
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