Every year, around this time, we review the top 10 most common wage and hour violations from the last year. The Christmas season may be over, but employers could still end up with coal in their stockings. That is because the stakes for noncompliance with state and federal wage and hour laws are higher than ever. Employers need to be aware of these common violations to stay in compliance and avoid disruptive wage claims, as well as expensive civil penalties and wage adjustment orders from the Department of Labor.

Note: This outline focuses on violations of state (New Hampshire) wage laws. The USDOL enforces the Federal Fair Labor Standards Act (FLSA) and USDOL investigators have also been busy with workplace investigations in New Hampshire. While USDOL investigations can involve some of the same issues, this outline focuses on the most common violations under state (New Hampshire) law and how to avoid them in the new year.

5. Failure To Have a Joint Loss Management (Safety) Committee

*RSA 281-A:64, III

Problem: Employers with 15 or more employees must have a Joint Loss Safety Committee to review and address workplace accidents and related safety issues.

Recommendation: Covered employers should ensure that their safety committee is organized, they hold meetings at least quarterly, and they properly maintain meeting minutes (posted, then filed). Those records must be available for NHDOL inspection.

4. Failure of Employers To Report or Obtain a Workers’ Compensation Policy

*RSA 281-A:5 

Problem: Employers in New Hampshire with at least one employee need to secure workers’ compensation insurance. Failure to secure or maintain that insurance could result in civil penalties and it could also result in unfunded liabilities to cover the employee’s medical bills and lost wages.

Recommendation: Along with other items on your risk management checklist, this item should be the top priority for your organization. Insurance should be secured, premiums should be paid in a timely manner, and information requests as required by the carrier should be provided to avoid gaps in coverage.

3. Failure To Have a Written Safety Plan and Safety Summary Form, if Required

*RSA 281-A:64, II and Lab 602.01, 602.02, 603.02 and 603.03

Problem: In addition to recording injuries, illnesses and responses to workplace hazards, employers must document their safety policies and compile them in a written safety program. Many employers neglected to maintain their safety committees, written safety programs and to ensure they had a safety summary form on file with NHDOL.

Recommendation: Employers with 15 or more employees must maintain a written safety program. The written safety program must be reviewed and updated at least every two years, and the employer must keep records of the dates on which the written safety program is reviewed and updated. Employers with 15 or more employees must file a safety summary form with the NHDOL. The safety summary form can be filed with NHDOL electronically and must be available for inspection by NHDOL. Employers with a current (2011 or later) safety summary form on file with NHDOL do not have to file again.

2. Failure To Keep Accurate Records of All Hours Worked

(Not recording meal breaks taken; not paying for breaks of less than 20 minutes in duration.) 

*RSA 279:27 and Lab 803.03 

Problem: This is a common violation but in recent years it has taken on a new dimension because of split shifts and remote work. State law requires employers to keep a daily “true and accurate record” of all hours worked for employees (specifically hourly and salaried nonexempt employees). These records must be maintained for at least three years and be available to NHDOL upon request. The problem in recent years has been tracking and accurately recording those hours. This issue comes up in a number of different ways, including not accounting for meals and other short breaks, as well as time spent working on a hybrid or remote basis.

Recommendation: As you know, employers in New Hampshire must permit employees to take a 30-minute (unpaid) meal break after five consecutive hours of work in a workday unless it is feasible for the employee to eat while working and they are permitted to do so. Meal breaks must be recorded on daily time sheets, just like the start and end times for all hourly and salaried nonexempt employees. Note that if an employee eats while working and does not take a break of at least 20 minutes, all that time must be paid.

Timekeeping is the employer’s obligation even when the employer expects the daily record to be kept by the employee. Therefore, employers have to be sure the daily time records entered by employees are accurate and changes are only permitted if agreed to (New Hampshire law says the change must be initialed) by the impacted employee.

The issue with meal break recording errors and other time recording mistakes is that employees may not have received all wages due, which means the employer could be fined for not permitting the breaks and not recording time properly and ordered to pay back wages. If the NHDOL looks back at all covered employees for each workday over the last three years, these fines and wage adjustments can add up. This can be both expensive and unnecessary (because the employees likely took breaks). (Note: If the employer can prove meal periods were actually taken there might be civil penalties for incomplete records, but wage adjustments may not be due.)

… And the number one worst (most common) wage and hour violation from 2024 is …

1. Failure To Have Written Notifications of Rate of Pay or Changes

*RSA 275:49 and Lab 803.01(g)(1)

Problem: Employers don’t always have the documentation to prove that an employee was notified in writing at the time of hire — and before any subsequent changes — of their rate of pay. This information is usually contained in an offer letter but especially with rushed hires or transitions in HR, this documentation has been overlooked. State law requires a written notice at the time of hire, signed by the employee, that contains the employee’s wage rate, pay date, pay period and general description of fringe benefits. This must also be documented in the same manner in advance of any changes to those arrangements. Those documents must be maintained in personnel files and available for inspection.

Recommendation: This is an easy fix. Make sure that all involved in hiring and onboarding and those involved with subsequent pay changes are aware of this requirement, and this is included in your HR compliance audit checklist.