Operating across jurisdictions, national chains run into NH labor-law snags
Keene NH July 1 2019
Corporations operating across borders have to juggle labor laws that vary from one state to another, and that sometimes saddles national and regional outlets with thousands of dollars in penalties for violations.
Two chains with locations in Keene were cited last month for alleged labor law violations: Kohl’s department store and Chili’s Grill and Bar. For both companies, the bulk of their citations concerned provisions for youth employment and paperwork issues.
Rudolph W. Ogden III, the deputy commissioner of the N.H. Department of Labor, said youth working requirements in the state can be broken down into three general categories.
“One being the permission or the idea that the guardians or someone should be saying, yes, the kid can work,” he said. “Two, the kid shouldn’t be doing certain dangerous occupations. And three … there should be certain hourly limitations.”
Under New Hampshire law, if school is in session five days a week, employees who are 16 or 17 can’t work more than six consecutive days or more than 30 hours a week. Those provisions loosen up if school is in session fewer days during the week. During vacations from school, youth are limited to six consecutive days and 48 hours a week.
Employees under 16 have tighter restrictions: no more than three hours a day on school days and 23 hours a week during school. When school is out, that relaxes to eight-hour days and 48-hour weeks during vacations. State law also includes curfews for employees under 16.
These restrictions were likely intended to encourage teenagers to graduate high school, Ogden said.
The specifics of youth-employment regulation vary state to state. Hours restrictions in Massachusetts law are similar to New Hampshire’s, for instance, but 16- and 17-year-olds in Vermont have no such limitations.
With the labor department’s inspections done, Kohl’s and Chili’s have 30 days from the report’s completion to respond and begin to resolve the matters with the department by paying the penalties, settling them informally or requesting a formal hearing to dispute the alleged violations.
The department launched an inspection into Kohl’s on Feb. 22 and wrapped up May 22. Records from Feb. 1, 2018, to April 30, 2018, were inspected for 762 employees across 11 locations.
Across all stores, the company was cited for failing to pay its employees a two-hour minimum for days on which they worked less than two hours, according to the inspection report. They also neglected to obtain completed permission forms from parents or guardians of youth employees under 18. The Keene store tallied five violations under the statute.
Other violations alleged in the report involved more requirements under state law for teenage workers, including restrictions on hours worked in a day or week. Under one provision, if a 16- or 17-year-old works past 8 p.m. or earlier than 6 a.m. twice in one week, none of their shifts that week can be eight hours. Nine stores allegedly violated that statute, including once in Keene.
The labor department has assessed an initial penalty of $17,800 for the alleged violations and says the company owes $5,605.94 in back wages to 352 people, calculated from the two-hour minimum that wasn’t paid.
Beginning Jan. 8, an inspection into Chili’s Grill and Bar was completed May 10 and cited similar violations.
Records from January 2018 to 2019 were inspected and covered 275 employees at eight locations, one of which closed in December.
Like Kohl’s, Chili’s was also cited for allegedly failing to pay the two-hour minimum at all of its restaurants, and the company had several violations for youth employment requirements. Seven locations were missing permission forms or had incomplete paperwork, according to the inspection report, including six violations in Keene for one undated form, one late form and four incomplete forms.
Other alleged violations include exceeding limitations on daily and weekly hours for 16- and 17-year-olds, similar to the Kohl’s inspection.
The Keene restaurant was hit for having someone under 16 work without a youth employment certificate, according to the report. Its alleged violations also included allowing someone under 16 to work past 9 p.m. and more than three hours on a school day.
Seven Chili’s restaurants also failed to pay their employees for short rest periods, defined in state law as 20 minutes or less, the report says. Between that and the two-hour minimum, the labor department calculated the back wages allegedly owed to 198 people at $9,097.34. The company’s initially assessed penalty is $23,100.
While noting that these types of alleged violations aren’t uncommon, especially for larger corporations, Ogden clarified that the labor department’s sample is slightly skewed because its inspections are spurred by complaints. The department doesn’t inspect every employer in the state on a regular basis.
“But there are certainly instances in which there’s gaps there,” Ogden said, “where you’ll see that at times a company that’s operating either regionally or nationally, yeah, they trip across some of the local requirements because they’re not intimately familiar with them.”
He pointed to a two-fold challenge facing larger companies. First, he said, there’s the simple fact that some national outlets might be operating in new territory and learning the lay of the land.
And then there are the many layers beneath the corporate level, Ogden said. Typically the people making schedules and handling personnel are onsite managers, he noted, and while the headquarters might know the law, it’s more difficult to ensure everyone on the ground has the same level of understanding.
Ogden added that companies of that size see plenty of turnover across all positions, so the department sometimes sees violations crop up again with a corporation years later after a new staff has rolled in.
With national chains, he said the point person for the department is often in a different state.
“And that person, if they get a really good understanding and familiarity with New Hampshire … if that person moves on then sometimes there’s a loss there, because the next person coming in is not going to have that,” Ogden said, “and they’re not going to be impressing it upon their local or regional managers.”
For its part, the labor department offers free training sessions across the state, on location and at its Concord office. The department conducted 27 sessions around New Hampshire this spring, Ogden said, and he hosted four himself. He guessed between 2,000 and 2,500 people attend all of the sessions combined each year, often owners and managers.
The department also has a standing offer to train employers and staff, he said.
“If you’re like an employer that we’ve inspected and there were a whole host of issues and you want to keep on top of it … every two to three months, every quarter, we can do a training just to make sure that people are on track and understanding compliance,” Ogden said.
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