Pay workers what's coming to them
Published 10/29/04

A top priority for a company is to pay all wages due its current and former workers. Failure to timely pay can result in substantial penalties under the New Hampshire Wage an Hour Law, RSA 275. Specifically, if an employer fires a worker the employer must pay the worker's wages in full within 72 hours.

If the worker quits, resigns, or is laid off, the employer must pay the worker's wages no less than the next regular payday either through the regular pay channels or by mail if requested by the employee.

However, if the worker upon resigning gives at least one pay period's notice of intention to quit, the employer must pay all wages due to the worker within 72 hours of his last day. If the worker was salaried and is fired during a pay period, generally the employer must pay for the full pay period. If a worker claims that more wages are due him than the employer concedes are due, then the employer must pay all wages that are conceded to be due and the worker must pursue the remainder of the wage claim for which the worker believes he is entitled.

Wages under the New Hampshire Wage and Hour Law includes compensation, including hourly, health and welfare, pension fund contributions required pursuant to a health and welfare trust agreement, pension fund trust agreement, collective bargaining agreement, or other agreement adopted for the benefit of a worker and agreed to by his employer, for labor or services rendered by a worker, whether the amount is determined on a time, task, piece, commission, or other basis of calculation. Vacation pay, personal days, holiday pay, sick pay and payment of worker expenses, where such benefits are part of the employment practices and policy, are also wages when they become due.

It is generally imprudent for an employer to hold back wages as an offset for other obligations it believes the worker has failed to meet. If the employer is considering such an offset, it would be extremely prudent to obtain legal counsel as to the limited circumstances upon which such an offset may be made. A worker who believes he is entitled to unpaid wages generally may initiate a claim through the New Hampshire Department of Labor, however, he may pursue the matter directly with the Court. If it is found that that the employer willfully and without good cause failed to pay the wages, the employer would additionally be liable to the worker for liquidated damages up to an amount equal to the unpaid wages.

The worker may also be able to recoup his costs for the action and reasonable attorney's fees from the employer. Officers of the company who decide not to pay the workers may be personally liable along with the company. Furthermore, if an officer of the company knows the company has insufficient monies to pay workers but still allows them to work, that officer may possibly still be personally liable for the unpaid wages owed even though the company had insufficient funds.

Current workers are generally owed their pay check weekly. A worker's resignation from a job because her employer was not paying her wages when owed should not prevent her from collection of unemployment compensation if she is otherwise eligible. Taking stock in the company in lieu of wages is usually not prudent since not only are you trading off a debt for which both the company and its officers may be liable for an ownership interest in a company that cannot even pay its workers, but the worker will have income noted on her tax return even though she only received stock in consideration for the wages due her.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.