Following both Massachusetts and Maine, New Hampshire will prohibit non-compete agreements for employees who earn an hourly rate that is equal to or lesser than double the federal minimum wage. The federal minimum wage, which NH follows, is $7.25 per hour. This means that employers cannot require employees who make $14.50 per hour or less (or just over $30,000 or less) to sign a non-compete agreement as a condition of employment.
NH’s new law defines a noncompete agreement to mean “an agreement between an employer and a low-wage employee that restricts such low-wage employee from performing:
(1) Work for another employer for a specified period of time;
(2) Work in a specified geographical area; or
(3) Work for another employer that is similar to such low-wage employee’s work for the employer who is a party to the agreement.”
The new restriction applies to noncompete agreements as defined under this section, not to other types of employment agreements such as nonsolicitation, nondisclosure, trade secret, intellectual property, or confidentiality agreements. And under the statute, a “noncompete agreement entered into between an employer and a low-wage employee shall be void and unenforceable.”
Governor Sununu signed S.B. 197 into law in July. It takes effect on September 8, 2019 and will be cited as RSA 275:70-a.
NH had previously enacted legislation restricting use of noncompete agreements. Under RSA 275:70, NH employers must give a copy of a required noncompete agreement to a potential employee or applicant prior to the applicant’s acceptance of an offer of employment.
APPROVED BY HOUSE AND SENATE - THIS WILL GO INTO EFFECT JAN 1 2020
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nineteen
AN ACT relative to temporary workers.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Temporary Workers. Amend RSA 275 by inserting after section 77 the following new subdivision:
275:78 Definitions. In this subdivision:
I. "Client company" or "client" means any person, including any natural person, sole proprietorship, partnership, limited partnership, corporation, limited liability company, or join venture, for which a temporary service company procures or provides temporary workers.
II. "Employer of record" means a temporary service company having direct responsibility for:
(a) Hiring, assignment, reassignment, discipline or termination of an employee procured or provided to a client or client company for the purpose of staffing a temporary work assignment; and
(b) Payment of wages; administration of payroll and benefits; calculating, collecting and remitting payroll taxes; complying with state and federal unemployment insurance requirements; paying workers' compensation insurance; complying with mandatory state and federal employer notification requirements; and preparing and issuing W-2 forms, for the temporary workers it employs.
III. "Temporary services company" means any person, including any natural person, sole proprietorship, partnership, limited partnership, corporation, limited liability company, or join venture, that regularly procures temporary workers for a client or client company or that finds temporary work for other persons.
IV. "Temp-to-hire" means a temporary work assignment advertised or promoted as having the potential to lead to an offer of direct employment by a client company contracting for temporary workers through a temporary service company.
V. "Temporary worker" means an employee who is hired, assigned, and paid by a temporary service company for the purpose of staffing a temporary work assignment at the work site of a client or client company.
275:79 Notices and Disclosures.
I. Written notices and disclosures required in this section shall be written in English and any other language generally used in the locale of the temporary services company or its clients. Copies of notices required in this section shall be kept on file for one year by the temporary services company and shall be made available for inspection by any affected temporary worker, who shall be provided copies of such notices, without charge, within 10 days of their request. Any notice required by this section may be transmitted electronically provided the temporary worker has agreed to receive notices in such manner.
II. A temporary service company shall, prior to the temporary work assignment start date, provide the following written notifications to each temporary worker the company employs or procures on behalf of a client or client company for the purpose of staffing a temporary work assignment:
(a) The legal name, business address, and local phone number of the employer of record.
(b) The name and contact information of the person, representative, or agent designated by the employer of record to whom the temporary worker is required to report injuries, illnesses, absences, safety violations, workplace discrimination, sexual harassment, or other concerns related to working conditions at a temporary work assignment.
(c) The specific terms and conditions of the temporary worker's employment in a new temporary work assignment, including a written description of any minimum attendance requirements, codes of conduct, performance standards, or other employer requirements and the consequences of non-compliance.
(d) The full name and address of the client company or client to which the temporary worker is assigned, the exact address of the work site, and the name and phone number of the work site supervisor or manager to whom the temporary employee shall report.
(e) The title of the person at the client company's work site who is designated to provide a job safety orientation and any training required to safely perform the work assignment, if different from subparagraph (d).
(f) A detailed description of the work to be performed by the temporary worker, including any requirements for special training, attire, accessories, tools, or safety equipment.
(g) The expected duration of the assignment, including the start date and, if known, the expected end date, time of day work will begin and end, the schedule of days on which the work will be performed, whether there is mandatory overtime or an expectation of overtime work, and that the temporary work assignment is subject to early termination or extension depending on the business needs of the client.
(h) That the client supervisor, manager, or employee designated in subparagraph (d) or (e) to provide job safety orientation and training will, prior to the commencement of work, provide a description of the work site hazards to which the temporary worker may become exposed, including any hazardous materials which the worker may be required to use or handle during the course of a job assignment. This subparagraph shall not apply to a professional employee, as defined in 29 U.S.C. section 152; or to employees who are secretaries or administrative assistants whose main or primary duties are described by the United States Department of Labor, Bureau of Labor Statistics, as involving one or more of the following: drafting or revising correspondence, scheduling appointments, creating, organizing, and maintaining paper and electronic files, and providing information to callers or visitors.
(i) Whether a meal is provided, either by the temporary services company or its client, and the cost of the meal, if any.
III. A temporary service company arranging the placement of a temporary worker in a job advertised or promoted as "temp-to-hire" shall notify the worker of the typical length of continuous temporary employment before an offer of direct hire is made and of any specific or special qualifications the temporary worker must demonstrate to be considered eligible for direct hire by the client company.
IV. All advertisements by a temporary service company shall contain the correct business name of the temporary service company and at least one of the following:
(a) The street address of the company's place of business; or
(b) The telephone number of the company at its place of business.
V. The department of labor shall provide employers with a form that satisfies the notice and disclosure requirements of this section. Employers may use that form or any other form that meets the requirements of this section.
2 Effective Date. This act shall take effect January 1, 2020.