Are NH Employees Allowed to Talk About Pay at Work?

Data on pay equity in the Granite State, published by The New Hampshire Fiscal Policy Institute (NHFPI), follows a nearly five-year study examining hourly pay and found that women, on average, make approximately 87% of what their male counterparts make. But this disparity isn’t for lack of trying; it’s for lack of talking.

In New Hampshire, you are allowed to talk about pay at work based on the state’s public policy. An employer cannot lawfully prohibit you from discussing your wages if you wish to do so.

Understanding How Pay Equity Law Factors In

In 2014, New Hampshire passed its Pay Equity Law, which gave the labor commissioner enforcement powers over New Hampshire’s Equal Pay Act and made related changes in the law designed to protect employees – male and female – who discuss pay in the workplace, even if such discussion does not concern sex-based pay disparities.

If the ultimate goal of the law was to end sex-based pay disparity, why provide legal protection to employees who, without any sex-based pay disparity issue, discuss them? The answer is simple: we can’t remedy sex-based pay disparity if we don’t know it’s happening, and we can’t know it’s happening if employees don’t talk about their pay. Thus, the legislature codified in New Hampshire law this state’s public policy of encouraging all employees to liberally discuss their pay in the workplace.

How is the Pay Equity Law Structured?

Equal Pay Protection New Hampshire’s equal pay provision, RSA 275:37, prohibits employers from discriminating on the basis of sex by paying employees of one sex less than the other for work that is performed under similar working conditions and is of equal skill, effort, and responsibility.

Disparate payments are allowed, however, when based on a seniority system, merit or performance, quantity or quality of production, expertise, shift differentials, or some demonstrable factor other than sex, like education, training, or experience.

In the absence of state court opinions analyzing RSA 275:37, it’s helpful to turn to cases analyzing the federal Equal Pay Act which, albeit with slightly different verbiage, prohibits sex-based pay disparity under the same requirements as New Hampshire’s law.

Making a Claim Based On the Equal Pay Act

Under the federal Equal Pay Act, no showing of discriminatory intent is required to make out a claim. Rather the Act is a strict liability statute, meaning that an employee need only show that, despite performing work equal to that of a co-employee of the opposite sex, their employer pays the employee of the opposite sex more for said work, without any regard to the employer’s intent in doing so. The “any-factor-other-than-sex” defense for employers has received different treatment by the federal Circuit Courts of Appeal.

Some courts require proof that the factor is based on a legitimate business reason to form a viable defense. Other courts have rejected the idea that the employer must show the factor to be business-related and, instead, require the employee to show that the factor was applied in a discriminatory manner or caused a discriminatory effect.

Protection from Retaliation Based on Pay Disclosure & Other Protected Activity RSA 275:41-b, the pay disclosure provision, bars employers from requiring that employees refrain from disclosing their pay, and it prohibits employers from discharging, disciplining, or otherwise discriminating against employees for such disclosure. RSA 275:38, the non-retaliation provision, reiterates the same protections for employees contained in the pay disclosure provision The non-retaliation provision goes further and protects employees from reprisal for filing a complaint, causing the initiation of an investigation, or participating in a proceeding related to activity protected under the law, regardless of whether the employee does so externally or internally within the employer’s own procedures.

However, one exception exists: an employee whose job provides them access to the wage information to other employers is not protected in disclosing such information to employees who do not have the same access.

What if My Employer Has Violated New Hampshire Law?

If your employer has treated you unlawfully for discussing your pay in the workplace, or for any other illegal reason, you should consult an experienced employment law attorney with a solid understanding of New Hampshire’s applicable employment laws. Our team at Douglas, Leonard & Garvey, P.C. is here to help.