Gender Equity and the New Hampshire Paycheck Fairness Act

April 4, 2017, marked Equal Pay Day—the date this year when women’s pay caught up with what men were paid the previous year. In 2016, Equal Pay Day was marked on April 12. In 2015, on April 14.

The fact that Equal Pay Day arrives earlier and earlier each year signals progress, but the gender wage gap in this country is still significant. The numbers in New Hampshire are especially grim, where, according to the National Women’s Law Center, the state ranks 47th for paycheck fairness.

Clearly, there's more work to be done. One place to start is educating employers and employees about New Hampshire's current laws so both parties know their rights.

New Hampshire Paycheck Fairness Act

In 2014, the New Hampshire Paycheck Fairness Act passed both houses and was signed into law by Governor Maggie Hassan. The law, which became effective January 1, 2015, gave the labor commissioner the power to enforce New Hampshire’s Equal Pay Act.

The Equal Pay Act requires employers to pay women and men equally for jobs requiring equal skill, effort, and responsibility. It applies to all employers in the state, regardless of company size.

Exceptions

Providing gender discrimination is not involved, there are some exceptions for pay differentials for people working in the same position. These exceptions can be based on seniority, experience, training, skill, ability, duties and services performed, or shift schedules.

Retaliation

The bill includes a non-retaliation provision which states it's unlawful for an employer to terminate, or in any other manner discriminate against, any employee who:

  • makes a charge
  • files any complaint
  • institutes or causes to be instituted any investigation, proceeding, hearing, or action under or related to the equal pay act statute, including an investigation conducted by the employer
  • has testified, is planning to testify, or has assisted or participated in any manner in any such investigation, proceeding, hearing or action

The non-retaliation statute also makes it unlawful for an employer to terminate or discriminate against any employee because he or she inquired about, discussed, or disclosed his or her wages, or those of another employee.

Pay Disclosure

The above prohibition is related to a specific section of the statute, called "Pay Disclosure." The statute provides that no employer shall require, as a condition of employment, that:

  • an employee refrain from disclosing the amount of his or her wages; and
  • an employee sign a waiver or other document that claims to deny the employee the right to disclose the amount of his or her wages, salary, or paid benefits.

There is one caveat, however.

The statute doesn’t apply to any employee who, as part of his or her essential job functions, has access to the wage information of other employees and discloses this information to individuals who don't have the same access. This may not apply to situations where information about wages was disclosed in response to a complaint, charge, or in furtherance of an investigation, proceeding, hearing, or action.

Notice to Employees

The bill requires that employers in New Hampshire post the following notice in a conspicuous place:

“It is illegal in New Hampshire under both state and federal law to pay employees different wages for the same work based solely on sex. If you think that your employer has violated this provision, please contact the New Hampshire Department of Labor.”

The poster must also include the address, phone number, and email address of Department of Labor personnel to be contacted with complaints.

Bringing a Claim

Any action to recover unpaid wages and liquidated damages based on a violation of the New Hampshire Paycheck Fairness Act must be brought within three years of discovery of the violation. Claims may be taken to the NH Department of Labor or in a state superior court.

Both employers and employees can seek counsel from a knowledgeable attorney if further clarification is needed. Hopefully, a better understanding of the law can help all parties navigate wage issues as we continue to work toward gender equity in the workplace.

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