Certified Final Objection No. 112 of the
Joint Legislative Committee on Administrative Rules
At its meeting on February 19, 1999, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 98-170 containing proposed rules Lab 801 through Lab 803 of the Department of Labor (Department) relative to payment of wages and requirements of employers. The Department responded by letter dated April 2, 1999.
At its meeting on May 21, 1999, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 98-170. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:13, VI:
After a final objection by the committee to a provision of a rule is filed with the director under subparagraph V(d), the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.
Please note that the Committee may take further action on this proposal. Subsequent to entering the final objection, the Committee voted to reconsider its decision.
The following summarizes the bases for the Committee’s final objection:
Lab 803.02(h) and (i)
The Committee objected that Lab 803.02(h) and (i) are, pursuant to Committee Rules 401.01(c) and 402.02(a), beyond the authority of the Department and contrary to legislative intent by conflicting with RSA 275:48.
As proposed by the Department, Lab 803.02(h) would prohibit employers from requiring their employees to share tips with other employees through the use of a tip pool, and Lab 803.02(i) would prohibit employers from exercising control over any voluntary tip pool. Under RSA 275:48, employers are prohibited from withholding employees’ wages, except pursuant to specific exceptions. Based on public testimony, the Committee determined that RSA 275:48 does not require or authorize restrictions on tip pooling as an unlawful diversion of wages.