Payment of Wages
Whenever used in this subdivision:
I. The term "employer" includes any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased individual, or the receiver, trustee, or successor of any of the same, employing any person, except employers of domestic labor in the home of the employer, or farm labor where less than 5 persons are employed.
II. "Employee" means and includes every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, but shall not include any person exempted from the definition of employee as stated in RSA 281-A:2, VI(b)(2), (3), or (4), or RSA 281-A:2, VII(b), or a person providing services as part of a residential placement for individuals with developmental, acquired, or emotional disabilities, or any person who meets all of the following criteria:
(a) The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter.
(b) The person has control and discretion over the means and manner of performance of the work, in that the result of the work, rather than the means or manner by which the work is performed, is the primary element bargained for by the employer.
(c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to completion schedule, range of work hours, and maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented.
(d) The person hires and pays the person's assistants, if any, and to the extent such assistants are employees, supervises the details of the assistants' work.
(e) The person holds himself or herself out to be in business for himself or herself or is registered with the state as a business and the person has continuing or recurring business liabilities or obligations.
(f) The person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work.
(g) The person is not required to work exclusively for the employer.
III. The term "wages" means compensation, including hourly health and welfare, and 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 an employee and agreed to by his employer, for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission, or other basis of calculation.
IV. The term "commissioner" means the labor commissioner.
V. For the purposes of this subdivision the officers of a corporation and any agents having the management of such corporation who knowingly permit the corporation to violate the provisions of RSA 275:43, 44 shall be deemed to be the employers of the employees of the corporation.
VI. The term "salaried employee" means any employee who under an employment agreement or as a matter of policy or practice, regularly receives each pay period a predetermined or fixed amount of money constituting compensation, based on a predetermined amount of wages to be paid as determined by a daily rate, weekly rate, bi-weekly rate, semi-monthly rate or monthly rate, and which amount is not subject to reduction because of variations in the quality or quantity of the work performed and regardless of the hours or days worked except as otherwise provided in RSA 275:43-b.
VII. The term "draw against commission" means a compensation method under which an employee receives, at least once each month, a draw payment of not less than the minimum wage, representing an advance against anticipated commission earnings. Draws shall be reconciled against commissions monthly unless otherwise agreed, in writing, by employer and employee. If the reconciliation results in an amount payable to the employee, payment shall be made in accordance with this chapter. If the reconciliation results in a negative balance, the balance may, by written agreement between employer and employee, be carried over into ensuing time periods; however, if a final reconciliation results in a negative balance, it shall not be recoverable from the employee.
VIII. "Payroll card" means an access device issued and accepted by a financial institution to access funds from the employee's payroll card account.
IX. "Payroll card account" means an account directly or indirectly established by an employer on behalf of an employee to which electronic fund transfers of the employee's wages, salary, or other employee compensation are made on a recurring basis. A payroll card account does not include a savings account or a demand deposit account at a financial institution and shall be subject to Regulation E, 12 C.F.R. part 205. Disclosures, periodic statements, or alternatives to periodic statements; notices; error resolution procedures; and limitations on liability, with respect to payroll cards, shall be in accordance with the federal Electronic Fund Transfer Act, 15 U.S.C. section 1693 et seq., and its implementing regulation, Regulation E, 12 C.F.R. part 205.
Source. 1887, 26:1. PS 180:21. 1909, 134:1. 1919, 6:1. 1921, 68:1. PL 176:25. 1935, 69:1. RL 212:14. 1951, 124:1. RSA 275:42. 1957, 187:15. 1963, 237:3. 1967, 398:1. 1975, 335:1. 1994, 290:2. 1999, 279:2. 2007, 299:1, eff. Sept. 11, 2007; 362:3, eff. Jan. 1, 2008. 2012, 139:2, eff. Aug. 6, 2012.