RSA 275:48 · Withholding of Wages

275:48 Withholding of Wages. –

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I.

No employer may withhold or divert any portion of an employee's wages unless:

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(a)

The employer is required or empowered to do so by state or federal law, including payroll taxes.

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(b)

The employer has a written authorization by the employee for deductions for a lawful purpose accruing to the benefit of the employee as provided in regulations issued by the commissioner, as provided in subparagraph (d) or for any of the following:

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(1)

Union dues;

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(2)

Health, welfare pension, and apprenticeship fund contributions;

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(3)

Voluntary contributions to charities;

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(4)

Housing and utilities;

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(5)

Payments into savings funds held by someone other than the employer;

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(6)

Voluntary rental fees for non-required clothing;

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(7)

Voluntary cleaning of uniforms and non-required clothing;

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(8)

The employee's use of a vehicle under RSA 261:111, III;

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(9)

Medical, surgical, hospital, and other group insurance benefits without financial advantage to the employer, when the employee has given his or her written authorization and deductions are duly recorded;

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(10)

Required clothing not covered by the definition of uniform;

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(11)

Legal plans and identity theft plans without financial advantage to the employer when the employee has given his or her written authorization and deductions are duly recorded; and

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(12)

For any purpose on which the employer and employee mutually agree that does not grant financial advantage to the employer, when the employee has given his or her written authorization and deductions are duly recorded. The withholding shall not be used to offset payments intended for purchasing items required in the performance of the employee's job in the ordinary course of the operation of the business. Nothing in this subparagraph shall prohibit a charitable organization from withholding from an employee's wages a voluntary contribution to such charitable organization.

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(c)

The deductions are pursuant to any rules or regulations for medical, surgical, or hospital care or service, without financial benefit to the employer and openly, clearly, and in due course recorded in the employer's books.

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(d)

Upon an employee's written request, an employer may deduct the following items from the employee's wages, provided that the employer shall provide a written itemized accounting of such requested deductions to the employee at least once per month:

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(1)

Voluntary contributions into cafeteria plans or flexible benefit plans, or both, as authorized by section 125 or section 132 of the Internal Revenue Code.

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(2)

Voluntary payments by the employee for the following:

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(A)

Child care fees by a licensed child care provider.

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(B)

Parking fees.

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(C)

Pharmaceutical items, gift shop, and cafeteria items purchased on site of a hospital by hospital employees.

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(3)

Voluntary installment payments of legitimate loans made by the employer to the employee as evidenced by a document that includes the following:

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(A)

The time the payments will begin and end.

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(B)

The amounts to be deducted.

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(C)

A specific agreement regarding whether the employer is allowed to deduct any amount outstanding from final wages at the termination of employment.

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(4)

Voluntary payments for the recovery of accidental overpayment of wages when the following conditions are met:

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(A)

The recovery is agreed to in writing.

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(B)

The deduction for the overpayment begins one pay period following the date the parties execute the written agreement.

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(C)

The written agreement specifies:

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(i)

The date the recovery of the overpayment will begin and end.

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(ii)

The amount to be deducted, which shall be agreed upon by the employer and the employee but which shall, in no event, be more than 20 percent of the employee's gross pay in any pay period.

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(iii)

A specific agreement regarding whether the employer is allowed to deduct any amount outstanding from final wages at the termination of employment.

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(5)

Voluntary payments for the recovery of tuition for non-required educational costs paid by the employer for the employee to an educational institution when the specific deduction is authorized in writing prior to the deduction as evidenced by a document that includes the following:

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(A)

The time the payments will begin and end.

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(B)

The amounts to be deducted.

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(C)

A specific agreement regarding whether the employer is allowed to deduct any amount outstanding from final wages at the termination of employment.

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(6)

Voluntary payments for the employee's use of a health or fitness facility that is sponsored by the employer for the benefit of its employees and that is located within the employer's facility or workplace, or operated by a private health and fitness facility that offers discounted memberships of 50 percent or more to all employees of the employer, as evidenced by a document that includes the following:

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(A)

The time the payments will begin and end.

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(B)

The amounts to be deducted.

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(C)

A specific agreement regarding whether the employer is allowed to deduct any amount outstanding from final wages at the termination of employment.

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(e)

The employee requests in writing that deductions may be made for contributions to a political action committee from the employee's wages.

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(f)

The employer has a written request from the employee, made at the time of the original request without coercion or pressure, that authorizes the employer to deduct from the employee's final wages at the termination of employment any amount the employee may owe for voluntary payments for vacation pay, paid time off pay, earned time pay, personal time pay, annual pay, sick pay, sick dependent pay, and bereavement pay made pursuant to a written employment policy as required by RSA 275:49, III, when the payments have been requested and paid to the employee in advance of eligibility.

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II.

If an employer making a deduction of an employee's wages under paragraph I fails to make any payment relative to such deduction on the employee's behalf, and such employee loses any benefit or fails to meet an obligation caused by such failure, the employer shall be liable for such lost benefit or failed obligation. For any benefits provided to an employee paid for entirely by the employer without employee deductions, if the employer fails to make timely payments for such benefits and the employee loses any benefit or fails to meet any obligations caused by such failure, then the employer shall be liable for such lost benefits or failed obligations. The employer shall also be liable for any cost incurred by the employee caused by the employer's failure to make such payments.

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III.

An insurer or plan administrator of a self-funded plan shall notify an employee in writing of termination of an employee benefit plan pursuant to the notification requirements of RSA 415:18, XVI or the Employee Retirement Income Security Act, as applicable.

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IV.

If a plan administrator fails to comply with the applicable employee notification requirements of the Employee Retirement Income Security Act, then the plan administrator shall be liable for lost benefits or failed obligations to the employee resulting from the termination of the employee's benefit plan. Such liability extends only for the period of noncompliance beginning on the date notification to the employee was required under the Employee Retirement Income Security Act and ending on the date proper notification was made. Such liability for plan administrators is secondary to the employer's liability during this period and becomes primary only after the department of labor determines that the employer is financially unable to pay all or any part of the employee's lost benefits and failed obligations. Such liability for plan administrators in no way diminishes the employer's liability during this or any period.

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V.

For purposes of this section:

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(a)

"Plan administrator" means the fiduciary of the plan named in the adoption agreement who has the duties specified in the plan.

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(b)

"Uniform" means a garment with a company logo or fashion of distinctive design, worn by one or more employees, and serving as a means of identification or distinction. No employer shall require an employee to wear a uniform unless the employer provides each employee with a uniform reasonably suited for the conditions in which the employee would be required to wear one, at no cost to the employee. An employee may purchase any other company garments or items if the employee chooses. Source. 1937, 149:1. RL 212:20. RSA 275:48. 1963, 237:3. 1994, 138:1. 2004, 145:2. 2005, 241:3, 4; 297:1. 2007, 289:34, eff. Jan. 1, 2008; 318:1-3, eff. Sept. 11, 2007. 2010, 133:1, eff. Aug. 13, 2010. 2011, 140:1, eff. Aug. 6, 2011. 2014, 59:1, eff. July 26, 2014. 2018, 312:3, eff. June 25, 2018.

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