United States: It's That Time Of Year Again: DOL Is Making Its List And Checking It Twice

Annually, the New Hampshire Department of Labor issues a list of the top ten most frequent violations it sees in audits and claims filed before it. The list doesn't change dramatically from year to year, but violations move up and down the list giving us a clue as to where the DOL may focus its enforcement efforts in 2017. So here we go....

  1. Failure to Secure and Maintain Worker's Compensation Coverage for Misclassified Workers. The issue of employee misclassification has been a focus of both state and federal agencies for the past ten years. We have written many blog posts directing the attention of business to the issue of independent contractors and how difficult it is to meet the criteria set out by the various agencies who address it. This year, misclassifying workers and failing to provide worker's compensation coverage for them is at the top of the list.
  2. Failure to Pay All Wages Due for Hours Worked. Employers must be very cognizant of making sure that their employees properly record their hours worked and that employees are paid for all time. Approximations, auto-deductions, and flat time entries are insufficient. Non-exempt employees must record, time in, out for lunch, back in and out for the day as well as time spent answering calls at night, stopping at the post office on the way home and checking email on weekends.
  3. Failure to Have a Written Safety Plan, Joint Loss Management Committee and Safety Summary Form on File. All employers with 15 or more employees must comply strictly with RSA 281-A:64 and the related regulations.
  4. Employing Illegal Aliens (Undocumented Workers). Although this issue is typically within the purview of the federal government, DOL inspectors will review I-9's and supporting documentation during audits and cite employers for missing or incomplete forms.
  5. Failure to keep accurate records of all hours worked. Similar to number 2 above, the DOL frequently cites employers for failing to maintain accurate documentation of time work and then to follow the legal requirements for paying employees. Non-exempt employees are entitled to a 30 minute unpaid meal break after five continuous hours of work, and employers should make sure that this time is accurately recorded. Similarly, employers may not dock employee pay for breaks of less than 20 minutes.
  6. Failure to Provide Written Notice to Employees of Their Wage Rate, Pay Period, Pay Day and Notice of Fringe Benefits At the Time of Hire and At the Time of Any Change. With careful education, this one has dropped down the list, but is still a frequent issue, especially for businesses which come from out of state. All of this information must be provided to the employee in writing, and the document must be signed by the employee and kept on file. This is a very NH specific requirement. A good way to handle this is to provide an offer letter which the employee needs to sign or at least a pay status document which can be updated with changes such as annual raises.
  7. Youth Employment Violations. The DOL is not forgiving of youth employment violations. Employers must make sure proper parental consent certificates or letters should be on file before a minor begins work. There are also very specific rules about hours and days of work and restrictions on dangerous occupations with which businesses should become familiar if they are going to hire younger workers.
  8. Failure to Pay Two Hours Minimum Pay on Any Day an Employee Reports to Work at the Request of the Employer. This is sometimes referred to as "show up pay" or the "snow day" or "not enough work day" rule. If an employee is scheduled for work and comes in, he or she must be paid a minimum of two hours even if the business closes down for the day or sends the employee home due to lack of work. The employer can certainly require the employee to stay and work for the two hours.
  9. Improper deductions from wages. Not following list of approved deductions. New Hampshire has a very specific list of what deductions employers can make from wages and very clear rules on how and when those deductions may be taken. Employers should carefully review RSA 275:48 and the attendant regulation. Although the approved list has been expanded, the deductions must still be voluntary and in most cases authorized in writing by the employee.
  10. Failure to Pay Minimum Wage for All Hours Worked. It is hard for most to imagine that this is still an issue. New Hampshire follows the federal minimum wage ($7.25) which is lower than the minimum wage of all of our neighboring states. The difficulty typically comes into play in very specific scenarios such as commissioned inside sales employees, tipped employees and others who are paid at special rates.

This time of year is a good time to do some risk avoidance planning. It might be a good time to schedule a wage and hour audit or self-audit for January or February, once the dust settles on the New Year celebrations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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