Section 275-F:8 Liability.
I. Any employer who fails to give notice under RSA 275-F:3 before ordering a mass layoff or plant closing is liable to each employee entitled to notice who lost his or her employment for:
(a) Back pay at the average regular rate of compensation received by the employee during the last 3 years of his or her employment, or the employee's final rate of compensation, whichever is higher.
(b) The value of the cost of any benefits to which the employee would have been entitled had his or her employment not been lost, including the cost of any medical expenses incurred by the employee that would have been covered under an employee benefit plan.
(c) Costs and reasonable attorney's fees.
(d)(1) The department shall have a lien upon the business revenues and all real and personal property of the employer for the employer's liability under this paragraph. In order for such lien to be valid and effective against the employer's interest in real property, the department shall record a notice of lien in each county in which the employer holds an interest in real property. In order for such lien to be perfected and valid against business revenues, and personal property of the employer, the department shall record a notice of lien in the office designated in Article 9 of the Uniform Commercial Code as adopted in New Hampshire (RSA 382-A:9-101 et seq).
(2) The notice of lien shall be in the form of the following:
NOTICE OF LIEN PURSUANT TO
NH RSA 275-F:8, I(d)
NOTICE is hereby given that the New Hampshire department of labor claims a lien against [name and address of employer] pursuant to NH RSA 275-F:8, I(d) for liabilities arising under NH RSA 275-F:8 I(d) in the aggregate amount of $___________.
In accordance with NH RSA 275-F:8, I(d), this notice shall be recorded with _______________ and shall constitute a lien against property of the employer identified above.
Dated this ____ day of ________, 20 .
| STATE OF NEW HAMPSHIRE |
| DEPARTMENT OF LABOR |
| By:______________________ |
(3) The notice of lien shall constitute a lien of the department that is effective as of the date and time of the recording or filing.
(4) The department shall send a copy of the notice of lien to the employer by certified mail, return receipt requested, postage prepaid.
II. Liability shall be calculated for the period of the employer's violation, up to a maximum of 60 days, or 1/2 the number of days that the employee was employed by the employer, whichever period is smaller.
III. The amount of an employer's liability under paragraph I shall be reduced by:
(a) Any wages, except vacation moneys accrued before the period of the employer's violation, paid by the employer to the employee during the period of the employer's violation;
(b) Any voluntary and unconditional payments made by the employer to the employee that were not required to satisfy any legal obligation;
(c) Any payments by the employer to a third party or trustee, such as premiums for health benefits or payments to a defined contribution pension plan, on behalf of and attributable to the employee for the period of the violation; and
(d) Any liability paid by the employer to the employee under the Worker Adjustment and Retraining Notification Act, 29 U.S.C. section 2101 et seq.
IV. Any liability incurred by an employer under paragraph I with respect to a defined benefit pension plan may be reduced by crediting the employee with service for all purposes under such a plan for the period of the violation.
V. The amount of an employer's liability under paragraph I shall not affect and is not affected by the employee's receipt of unemployment benefits administered by the New Hampshire department of employment security.
VI. If an employer proves to the satisfaction of the commissioner that the act or omission that violated this chapter was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of this chapter, the commissioner may in his or her discretion reduce the amount of liability provided for in this section.
VII. Whenever the attorney general has reason to believe that an employer is violating or is about to violate this act, the attorney general may petition the court for an order of restitution of money or property to any person or class of persons injured thereby. The action may be brought in the superior court of the county in which the employer allegedly in violation of this act resides or in which the principal place of business is located, or in the superior court of Merrimack county. Under this chapter, the state courts shall not have authority to enjoin a plant closing or mass layoff.
VIII. In addition to asserting the lien as provided in subparagraph I(d), the state of New Hampshire, through the department, shall be deemed to be a creditor under RSA 545-A for the liability of the employer as determined under paragraph I and may assert claims pursuant to RSA 545-A:4 and RSA 545-A:5, as applicable, and shall have the remedies set forth in RSA 545-A for such claims under RSA 545-A which are established by the state.
IX. An action to recover the back pay, benefits, costs, and attorneys fees and other moneys for which an employer may be liable under this chapter may be maintained against any employer by any one or more employees for and on behalf of the employee and any other employees similarly situated. Any labor organization may also maintain an action on behalf of its members. The action may be brought in the superior court of the county in which the employer allegedly in violation of the action resides or in which the principal place of business is located, or in the superior court of Merrimack county. Any action brought under this paragraph shall be consolidated with any action brought by the attorney general against the same employer or employers under paragraph VII.
Source. 2009, 325:1, eff. Jan. 1, 2010.