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Holiday Pay Practices
in New Hampshire

Labor & Employment

By: Peg O'Brien

 

December 13, 2013
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Question:
Are New Hampshire employers required to provide employees with time off for holidays, with or without pay? Are they required to pay a premium wage rate for work on holidays?

Answer:
The quick answer is — "no" and "no." There is no federal law that requires private employers to provide time off to employees on federally recognized holidays, and there is also no New Hampshire state law that requires private employers other than mills or factories to provide time off for holidays, with the exception of Veterans Day as explained below. Further, no federal or state law requires employers to pay non-exempt (hourly) employees for holidays that are given as days off, and likewise, no federal or state law requires employers to pay any extra compensation such as time and a half or double time for work performed on holidays.

Time off for Holidays: While the state and federal government recognize certain days as holidays, private employers in New Hampshire other than mills or factories (see RSA 275:28) are not required to give employees time off from work on those dates with the exception of Veterans Day. New Hampshire enacted RSA 115-A:29 in 2009 to require employers to permit honorably discharged veterans of the United States Armed Forces to take the day off on Veterans Day, November 11. Employers do not have to recognize Veterans Day on a company-wide basis, but must permit veterans to elect to take the day off if they wish. The day off is without pay unless pay is otherwise required by law, such as in the case of a salaried employee who performs work during the pay period in which Veterans Day falls.

While private employers are generally not obligated to provide employees with time off for holidays, most businesses set their work schedules so that the company is closed on federal holidays, and therefore, employees are not required to work. In recent years, this company practice is starting to change, since holidays have become significant business days for retailers. For businesses that do not close on holidays, employers frequently offer employees with time off on other dates (often referred to as "floating holidays"). However, floating holidays are not required and are strictly a voluntary benefit that employers may decide to offer as an employee benefit.

Holiday Pay: Holiday pay is compensation for holidays, like Christmas or New Year's Day, when a company may be closed or the employee is permitted to take time off from work. Private employers in New Hampshire are not required to pay non-exempt (hourly) employees for holidays on which they are not required to work.

Despite the absence of any legal obligation to pay for holidays, most employers in New Hampshire voluntarily choose to offer paid holidays for non-exempt employees and most union collective bargaining agreements require paid holidays. Holiday pay is generally intended to prevent a loss of income for employees when a holiday shortens the work week, and it functions like paid vacation and sick pay. Generally, when an employee is not required to work on a recognized holiday, the employee is paid at his/her base rate of pay for the hours the employee would have worked on that day but for the holiday.

When a company decides not to close for the holiday, and the employee is required to work, employers are not required to pay extra (e.g., time and a half or double time) for working on a holiday unless the Company has a union contract or internal policy that stipulates that employees will earn extra pay for working on a holiday. There is nothing in federal or New Hampshire state law that requires employers to pay premium pay for holidays.

Employer Takeaways: Whether an employer should offer time off for holidays or holiday pay will largely be driven by employee expectations, company financials, and industry norms. If employees expect to receive these benefits, taking them away or denying them will certainly have a negative impact on a workplace. In addition, if holiday benefits are the norm in the industry, then not providing holiday time off or pay will put the company at a competitive disadvantage.

If an employer chooses to provide a paid holiday benefit, the New Hampshire Department of Labor regulations require that the employer provide all employees with a written description of how the benefit works and the employee must acknowledge receipt of the written description. Employers must also provide employees with advance written notice of any changes to the holiday benefit.

In designing a paid holiday policy, New Hampshire employers are free to set the parameters. Employers should decide the following and explain their intentions clearly in writing:

  • Which holidays, if any, to recognize (e.g., New Year's Day, Martin Luther King, Jr. Day, etc.);
  • Whether or not to provide pay for the holiday to non-exempt employees;
  • How much pay to provide (e.g., whether holiday pay will be based on an 8-hour day or based on the employee's regularly scheduled hours);
  • Whether the holiday has to fall on an employee's regularly scheduled work day in order for the employee to be eligible for holiday pay (e.g., if an employee does not work on Thursdays, then he/she will not receive pay for Thanksgiving);
  • Who is eligible for holiday pay (examples include full-time employees only; all employees who have completed an introductory period; or full- and part-time employees who work over a certain number of hours per week on average);
  • Any conditions on receiving holiday pay (such as having to work the scheduled days before and after the holiday unless otherwise excused);
  • Whether to provide any "floating" holidays and, if so, any conditions on the use of floating holidays (e.g., employees will receive floating holidays if they are required to work on a recognized holiday);
  • Whether to pay employees who must work on a recognized holiday at a higher rate of compensation;
  • Whether to count holidays as actual time worked for overtime purposes; and
  • Whether employees on leave of absence are eligible for holiday pay.

As always, if you have any questions please do not hesitate to contact any of the lawyers listed above in Devine Millimet's Labor, Employment an Employee Benefits Practice Group.

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The Devine, Millimet & Branch Labor, Employment and Employee Benefits Group offers this free Friday E-Mail Alert service to provide information on recent developments in labor, employment and employee benefits law. If you have any questions about this e-mail, or if you know of anyone else who may be interested in receiving these alerts, please send us an email at employment@devinemillimet.com.


This E-Alert is provided for informational purposes only. It is not intended to serve as legal advice or legal opinion. Devine, Millimet & Branch, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Devine Millimet attorney with whom you regularly work.


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Labor & Employment Practice Group

Patricia M. McGrath
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Margaret A. O'Brien
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mobrien@devinemillimet.com

Anne G. Scheer
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Donald L. Smith
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