2009-753, Robert P. Grimard v. Rockingham County Department of Corrections

McKittrick Law Offices

No. 2009-753

Rockingham

exempt employee. His annual salary is $48,000, which he receives on a the Superior Court (McHugh respondent, Rockingham County Department of Corrections, as a salaried DALIANIS, J. The petitioner, Robert P. Grimard, appeals a decision of The record reveals the following facts. The petitioner is employed by the

Sheehan Phinney Bass + Green, P.A.

fees. We affirm. Department of Labor (DOL) denying his wage claim and request for attorney’s

on the brief and orally), for the respondent.

brief and orally), for the petitioner.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as hours [he] work[s] in any one week based on RSA 275:43-b.” See p. 2 a salaried employee, he “should have no loss of earned time regardless of the The petitioner filed a wage claim with the DOL alleging that because he is

by two hours. doctor’s appointment and is absent for two hours, his earned time is reduced deducted accordingly. For example, if the petitioner leaves the office for a office during his regularly scheduled hours, his accrued earned time credit is each month. Under the earned time policy, when the petitioner leaves his quarter hour or more. The petitioner accrues eighteen hours of earned time Earned time may be used any time after it has been earned, in units of one-

separate benefits.

Bereavement Leave, Holidays and Jury Duty are provided as formulae set forth below at the time of voluntary termination.

variety of purposes, including a payment in cash based on the together into a single benefit. Earned Time days can be used for a

number of days for each category, Earned Time puts these days

days and sick leave. Instead of dividing benefits into a specific traditional manner of earning paid time off for vacation, personal

Earned Time. Earned Time is an alternative approach to the superior court shall be limited to questions of law.” Id claimed to be in error.” RSA 275:51, V (2010). “The scope of review by the whole or in part, and specifying the grounds upon which the decision is superior court . . . by petition, setting forth that the decision is erroneous, in “Any party aggrieved by [a DOL wage claim] decision may appeal to the 2

matter to the commissioner for further findings.” Id. We, in turn, review de modify in whole or in part the decision of the commissioner, or may remand the upon consideration of the record, the [superior] court may affirm, vacate or EARNED TIME. Part-time and full-time employees accrue. “After hearing and

petitioner’s request for attorney’s fees. This appeal followed. to the superior court, which upheld the DOL decision and denied the petitioner was not owed any wages. The petitioner appealed the DOL decision and was notified in writing as to how his earned time would be deducted, the because he was paid his salary, in full, for every pay period he was employed b, I (2010). The hearing officer denied the petitioner’s claim, finding that

The policy in existence at the time the petitioner filed his wage claim states, in Under the respondent’s leave policy, all employees accrue “earned time.”

relevant to this appeal. bi-weekly basis. The petitioner received his paycheck, in full, at all times of policy or practice, regularly receives each pay period a

p. 3 any employee who under an employment agreement or as a matter

salaried employee’s full salary when, For instance, under RSA 275:43-b, I(e), an employer is not required to pay a a finding that the legislature intended “salary” to be limited to money received. The exceptions to the full salary requirement in RSA 275:43-b, I, support

define a “salaried employee” as RSA chapter 275 does not define the term “salary.” It does, however,

pertinent statutes, a salaried employee is entitled to receive a fixed amount of RSA 275:42, VI (2010) (emphasis added). Under the plain language of the

worked except as otherwise provided in RSA 275:43-b. quantity of the work performed and regardless of the hours or days is not subject to reduction because of variations in the quality or paid as determined by a . . . bi-weekly rate, . . . and which amount

as provided in RSA 275:43-b. money that constitutes the employee’s “salary” and cannot be reduced except

enumerated circumstances. the number of days or hours worked,” except under certain specifically whole. Appeal of Parkland Med. Ctr. any pay period in which such employee performs any work without regard to legislature’s intent as expressed in the words of the statute considered as a provides, in pertinent part: “A salaried employee shall receive full salary for compensation, based on a predetermined amount of wages to be accordance with its published policies. We are the final arbiters of the The petitioner’s wage claim was brought under RSA 275:43-b, I, which predetermined or fixed amount of money constituting violated RSA 275:43-b, I, by deducting from the petitioner’s earned time in

Liam Hooksett, LLC v. Boynton To resolve this appeal, we must determine whether the respondent, 157 N.H. 625, 628 (2008). the statute in the context of the overall statutory scheme and not in isolation. language that the legislature did not see fit to include. Id. We also interpret intent, and we will not consider what the legislature might have said or add unambiguous, we need not look beyond it for further indication of legislative meaning to the words used. Id. When the statute’s language is plain and the language of the statute, and, where possible, ascribe the plain and ordinary

Widney, 155 N.H. 658, 660 (2007). novo the trial court’s decisions on questions of law. See Demers Agency v. employee benefits. See p. 4 III (2010), and that we have previously held that compensation includes We recognize that the term “wages” is defined as “compensation,” RSA 275:42, from his earned time, the respondent impermissibly reduced his compensation. The petitioner’s appeal is premised upon his argument that by deducting

denied the petitioner’s wage claim. Thus, there was no violation of RSA 275:43-b, I, and the trial court properly earned time may have been reduced, he nonetheless received his full salary. petitioner was always paid his full paycheck. Even though the petitioner’s amount in money” each week, and the respondent presented evidence that the At the DOL hearing, the petitioner testified that he was “[p]aid the same

its statutory discretion by awarding reasonable counsel fees.” Demers Agency employer’s plan or policy. fees. “[W]hen the court has found a wage claim meritorious, it should exercise The trial court also properly denied the petitioner’s request for attorney’s

DUGGAN, HICKS and CONBOY, JJ., concurred. 4 Affirmed

may reduce the employee’s leave time in a manner consistent with the time and although an employer may not reduce a salaried employee’s salary, it Thus, salary is intended to be separate and distinct from an employee’s leave

meritorious, it did not err by denying the request for attorney’s fees. 155 N.H. at 664. Because the trial court did not find the wage claim to be

salary. each pay period, a deduction of accrued earned time is not a reduction in requested by the employee is granted by the employer. 275:43-b, I. Because “salary” is statutorily limited to the money received in “wages”; rather, it concerns the meaning of the word “salary” as used in RSA (1985). However, the petitioner’s claim does not concern the definition of

bona fide leave plan, practice or policy and such leave time

the employee has exhausted any leave time pursuant to a written requests time off without pay for any portion of a pay period, after [t]he salaried employee voluntarily, without coercion or pressure,