New Hampshire Overtime Laws

April 9th 2024

New Hampshire Labor Law includes provisions for overtime pay to protect workers’ rights. Under these laws, employees are entitled to receive additional compensation for hours worked beyond the standard 40-hour workweek.

This article will provide information to successfully navigate New Hampshire’s overtime regulations, whether you’re an employer aiming for compliance or an employee defending your rights.

This article covers:

New Hampshire Overtime Rates

Overtime law in New Hampshire is designed to prevent employees from being exploited by their employers. Employees who work over 40 hours per week are entitled to overtime pay at time-and-a-half (1.5) for every additional hour worked. 

Since the regular New Hampshire minimum wage is $7.25 per hour, this makes New Hampshire’s overtime minimum wage $10.88 per hour (1.5 times the minimum wage).

Overtime Entitlement in New Hampshire

According to New Hampshire overtime laws, overtime pay is required for any non-exempt employees. However, the overtime rule does not apply to certain employees.

Overtime pay cannot be provided to employees working for amusement, seasonal, or recreational establishments that:

  • Operate for less than 7 months in a year
  • Have significantly lower average receipts during specific months compared to the rest of the year

Employees who are exempted by the federal Fair Labor Standards Act (FLSA) are also not entitled to overtime pay.

Read more about Overtime Exceptions and Exemptions in New Hampshire.

Mandatory Overtime in New Hampshire

In New Hampshire, employers can require an employee to work mandatory overtime, as long as they provide overtime pay at the rate of 1.5 times the regular hourly rate.

The only exception to mandatory overtime applies to nurses under the New Hampshire law. An employer cannot invoke disciplinary action upon a registered nurse, licensed practical nurse, or licensed nursing assistant for refusing to work more than 12 consecutive hours. Any nurse who is required to work more than 12 consecutive hours must be provided at least 8 consecutive hours of off-duty immediately following the time worked.

However, mandatory overtime can still apply to:

  • A nurse participating in surgery (until surgery is completed)
  • A nurse working in a critical care unit (until another employee starting their shift relieves him/her from their work)
  • A nurse working in a home health care setting (until another nurse or caregiver relieves him/her from their work)
  • A public health emergency
  • A nurse covered by a collective bargaining agreement containing provisions of mandatory overtime 

Nurses can be exempted from mandatory overtime if they have a written waiver agreement with their employer, which must be voluntary and free from coercion. The agreement needs to be submitted to the commissioner of the Department of Labor. Additionally, the employee can terminate the agreement by giving written notice to the employer and the Department of Labor at least 14 days in advance.

Compensatory Time in New Hampshire

Compensatory time, also known as “comp time”, is a form of compensation offered by public or government employers in New Hampshire, allowing employees to receive additional time off instead of overtime pay for working extra hours. This practice is specific to public or government organizations and does not apply to private-sector employers in the state.

To receive comp time, public sector employees must be under a collective bargaining agreement that is negotiated with their employer before the start of their employment. An employee can request to use their comp time so long as it does not disrupt the employer’s business operations. Employees should have the freedom to use their accumulated comp time without any time limitations imposed by the employer. 

Public safety, emergency response, or seasonal activity employees can accumulate up to 480 hours of comp time (which translates to 320 hours of actual overtime worked). Other public sector employees are allowed to accumulate a maximum of 240 hours of comp time (which translates to 160 hours of actual overtime worked).

If an employee has gathered more comp time than the allowed limit, they must be monetarily compensated for overtime hours worked. It is also important to note that when an employee’s employment ends, they must be monetarily compensated for any unused comp time at their final regular rate. 

Overtime for Tipped Employees in New Hampshire

In New Hampshire, tipped employees are entitled to receive overtime pay at 1.5 times their regular wage for any hours worked beyond 40 in a week. It’s important to remember that tipped employees in New Hampshire have a lower minimum wage of $3.25 per hour compared to non-tipped employees, who may be subject to the regular state minimum wage. 

To better understand how tipped employees are compensated, it’s important to consider the concept of a “tip credit.” In New Hampshire, employers can pay tipped employees a lower minimum wage of $3.25 per hour, as long as the employee’s total earnings, including tips, meet or exceed the regular minimum wage for tipped employees. 

If the combined amount of tips and base wage falls short of the regular tipped minimum wage, the employer is required to make up the difference.

It’s worth noting that when calculating overtime pay for tipped employees, the tip credit cannot be taken into account. This means that employers must use the full minimum wage for tipped employees, which is $7.25 in New Hampshire, to determine their overtime pay rate.

Overtime for Salaried Employees in New Hampshire 

For salaried employees in New Hampshire, overtime pay is determined based on the regular rate, which is calculated by dividing the annual salary by the number of hours the salary is intended to compensate.

It’s important to note that under the Fair Labor Standards Act (FLSA), salaried employees are generally exempt from overtime pay if they meet certain criteria, such as being classified as an executive, administrative, or professional employee. However, if a salaried employee does not meet the exemption criteria or is covered by state overtime laws, they can receive overtime pay.

To determine a salaried employee’s overtime rate, an employer must first determine their employee’s hourly rate by dividing the salary by the number of hours that salary compensates for.

Then, take the hourly pay rate to calculate the overtime rate for salaried employees using the following formula:

Hourly pay rate x Overtime Hours x Overtime Rate (1.5)

It is important to note that if an employee’s salary covers less than 40 (hours) in a workweek, their regular rate will be added for every subsequent hour working up to 40. Only after 40 hours will time-and-a-half be counted.

If an employee’s salary covers 40 (hours) in a workweek, then time-and-a-half will be paid for any hours over 40.

Calculating Overtime with Commission in New Hampshire

In New Hampshire, employees who have the potential to earn commissions remain eligible for overtime pay, although the calculation may vary. If an employee receives weekly commissions, those commissions are added to their weekly wage to determine the total earnings for the week. This combined amount is then divided by the total number of hours worked in that week to establish the regular hourly rate. For any hours worked beyond 40 in a week, the employee is entitled to overtime compensation at a rate equivalent to half of the regular hourly rate.

For example, let’s say an employee works 45 hours a week at a rate of $7.25/hour (New Hampshire minimum wage) and receives $50 in commissions for that week. 

(Total hours x Hourly Rate) + Commission

= (45 x 7.25) + 50

= $376.25 (total earnings for the week)

Then, divide that by the total hours worked in the week.

= 376.25 / 45

=$8.36 (new regular hourly rate)

To determine the overtime rate for the commissioned employees, we need to take that new regular hourly rate and halve it.

$8.36 / 2

= $4.18

Since the employee worked an extra 4 hours in the week, that makes his overtime compensation $20.90 ($4.18 x 5 hours).

The amount will vary according to the hours worked, hourly rate, and commission earned.

Overtime Exceptions and Exemptions in New Hampshire

In New Hampshire, the overtime pay rules closely resemble those outlined in the Federal Fair Labor Standards Act (FLSA). Consequently, many of the exceptions and exemptions that apply to overtime pay in the FLSA also apply in New Hampshire. It’s important to note that exemptions from overtime pay are generally recognized in the state. Here are some of the key exemptions:

  • Executive and administrative employees that make a minimum of $684 per week or $35,568 on an annual basis, outside sales employees, professional employees (artists, teachers, skilled computer professionals, etc.)
  • Highly compensated employees who make more than $107,432 a year
  • Household, domestic, and farm labor
  • Newspaper delivery
  • Summer camps
  • Golf and ski track maintenance

Statute of Limitations For Unpaid Overtime Claims in New Hampshire

In New Hampshire, the deadline for filing an overtime claim follows the guidelines set by the FLSA. According to the FLSA, individuals seeking to recover unpaid back overtime wages must file a lawsuit within two years from the date of the employer’s wage violation. This means that if you file a lawsuit today, you can only seek recovery for unpaid wages from the past two years.

However, the statute of limitations can be extended to three years if the employer’s violation of the FLSA was willful. A violation is considered willful if the employer knew that their actions were prohibited by the FLSA or if they showed reckless disregard for the law.

Legal Cases Relating to Overtime Compensation in New Hampshire

Below, we present law cases relating to fair overtime compensation for employees in New Hampshire: 

1. Employer Knowingly Neglects Paying Overtime Wages to Non-Exempt Employee

In the case of McCarthy v. Medicus Healthcare Solutions, LLC., James McCarthy filed a lawsuit against Medicus Healthcare Solutions (Medicus) for allegedly failing to pay him overtime wages. McCarthy brought this lawsuit on behalf of himself and other similarly situated individuals.

McCarthy was a physician recruiter who worked for Medicus. Medicus classified him as non-exempt and paid him a salary. However, McCarthy claimed that Medicus required him to work over 40 hours a week without providing proper overtime pay for those additional hours. McCarthy further alleged that Medicus knew about the requirement to pay overtime wages and failed to do so. Medicus kept records of approved overtime work and pay but did not document the additional “off-the-clock” hours worked by McCarthy and other recruiters.

Medicus filed a motion to dismiss the claims arguing that McCarthy’s allegations lacked sufficient facts to trigger the three-year statute of limitations. However, the court concluded that McCarthy had alleged enough facts to support a claim of a willful violation. Ultimately, the court denied Medicus’ motion to dismiss. 

Key lessons from this case:

  • Knowingly not providing overtime compensation to an employee can be deemed as a willful violation of the FLSA.
  • Employers who have willfully and knowingly violated the FLSA can be held liable for up to 3 years of overtime back wages.
  • An employee needs to be aware of their employment contract and terms to further understand their rights to overtime pay.
2. Jockey Club Acknowledges Overtime Pay Mistake Due to Exemption Confusion

In the case of Dunlop v. New Hampshire Jockey Club, Inc., John T. Dunlop, the Secretary of Labor (will be referred to as the “Department of Labor”) filed a lawsuit against New Hampshire Jockey Club (NH Jockey) for violating overtime laws. The Department of Labor claimed that NH Jocker willfully failed to pay their employees time-and-a-half for hours worked over 40 per week. 

NH Jockey admitted that certain employees did not receive compensation for their overtime hours. However, they argued that their company was exempt from paying overtime based on the amusement or recreational establishments exemption in the FLSA. NH Jockey filed a motion to dismiss and asserted a defense of “good faith”. They further argued that there was no willful violation, which would have affected the statute of limitations.

The court focused its analysis on whether NH Jockey was considered one or two establishments. NH Jockey was conducting racing activities at Rockingham Park with the New Hampshire Trotting and Breeding Association (NHTBA). Although both NH Jockey and NHTBA had separate licenses, they used the same facilities and had interrelated corporate structures. Based on this, they were considered one establishment but were not exempt under the receipts portion of this exemption.

The law stated that if the average income for any six months of the previous year was less than one-third of the average income for the remaining six months, then the overtime rules of the Act did not apply. NH Jockey did not fall under this exemption and thus was deemed liable for all overtime back wages. Ultimately, the court denied NH Jockey’s motion to dismiss and may be held liable for unpaid overtime wages for up to 3 years before the complaint.

Key lessons from this case:

  • The Department of Labor can take action (on behalf of employees) against employers who violate overtime laws.
  • Exemptions are strictly interpreted and the burden of proving eligibility for exemption rests with the employer.
  • Employers can claim overtime exemption if they fall under certain categories like the amusement, seasonal, or recreational establishment exemption.
3. Club Dancer Owed Overtime Compensation After Being Misclassified as an Independent Contractor

In the case of Ely v. East Coast Restaurant, Nicole Ely had filed a lawsuit against East Coast Restaurants and Night Clubs (ECRNC), Michael Rose, Rose Enterprises, and Matthew Rose. Ely worked as a dancer at the Gold Club (operated by ECRNC and Rose Enterprises) and alleged that she was not paid minimum wage, or overtime wages, and had tips taken from her.

Ely also claimed that she was misclassified as an independent contractor and had to rely solely on customer tips that she was required to share with other workers and management. She brought this lawsuit on behalf of herself and other similarly situated individuals. Gold Club moved to dismiss the claims, arguing that an arbitration agreement signed by Ely and other employees required the solution of disputes through arbitration. Ely objected, contending that the arbitration agreement was unreasonable.

Gold Club argued that the agreement should be considered and that the court should defer to the arbitrator to decide if it should be enforced. However, Ely asserted that the court should decide whether the agreement was valid and enforceable before referring the dispute to arbitration.

The court had agreed with Gold Club’s request to settle the dispute through arbitration instead of proceeding with a trial. As a result, Ely’s claims were dismissed, but could still be pursued through arbitration. 

Key lessons from this case:

  • Arbitration is the process of solving a dispute between parties by helping them to agree to an acceptable solution instead of going to trial.
  • Arbitration agreements may be used by employers, but their enforceability can be challenged based on fairness.
  • Misclassified employees should identify their employment details and rights to overtime compensation or tips.

Learn more about New Hampshire Labor Laws through our detailed guide.

Important Cautionary Note

This content is provided for informational purposes only. While we make every effort to ensure the accuracy of the information presented, we cannot guarantee that it is free of errors or omissions. Users are advised to independently verify any critical information and should not solely rely on the content provided.

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