Long gone are the days when employers could prohibit employees from talking about their pay with each other, including bonuses, pay raise rates and/or paid benefits and/or to fire them for doing so. It is illegal for an employer to take any such action under NH law. The rationale behind RSA 275:41-b is to attempt to level the playing field when it comes to pay inequality in the workplace.
NH has joined many other states by making it illegal for any and all NH employers to prohibit employees from inquiring about, discussing, and/or disclosing the amount of their wages, salary, or paid benefits and for employers to discipline formally, fire, or otherwise discriminate against employees for doing so. RSA 275:41-b; RSA 275:38-a(I)(b). The law also contains an provision making it illegal for an employer to require that the employee sign a waiver or other document that "purports to deny the employee the right to disclose the amount of his or her wages, salary, or paid benefits." Employers should proceed with caution when terminating the employment of an employee who has recently disclosed her wages or those of another employee in order to avoid a claim of retaliation.
Given the clarity of these laws, if an employer hears or learns of employees talking about their pay and/or terms and conditions of employment, it is well advised not to take any adverse employment action against either employee, but perhaps make efforts to better understand the discontent. While the discontent might be unfounded, one way to stop the chatter is to increase transparency in pay practices which will help to counteract employee perception of inequality in pay and will positively impact the business's reputation in the community resulting in stronger bottom-line results. Other proactive measures include reviewing hiring documents, handbooks, and other policies to ensure that any language that bans or discourages employees from disclosing their terms of compensation or other benefits is eliminated.
By taking these measures, employers can help to protect themselves in the even that an employee brings a claim at the NH Department of Labor. If the employee prevails at the NH Department of Labor, the employee will recover unpaid wages and liquidated damages. Furthermore, the employer and/or its agent shall be guilty of a misdemeanor and subject to a fine of not more than $2,500. A violation of these laws would not only impact the employer financially, but would send a message to existing employees that might cause them to reconsider their employment. Before taking any action regarding pay practices and disciplinary action, employers are cautioned to consult with employment legal counsel to ensure compliance and/or minimize risk.
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