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Bar News - April 15, 2015

Labor & Employment Law: Workplace Bills: What’s Cooking in Concord and Worrisome in Washington?


Workplace laws and regulations have multiplied in recent years. As a result, employers of all types and sizes have at times been overwhelmed by new compliance obligations. While this Congress, just like its predecessor, is in the running for the dubious distinction of being the least productive Congress in nearly 60 years, members of the New Hampshire Legislature have been very active proposing new workplace legislation.

The following is a list of workplace bills currently pending before Congress and the New Hampshire Legislature. Some of these bills still could become law.

Workplace Bills Before Congress

While there are some high-profile workplace bills pending before Congress (e.g. comprehensive immigration reform, repeal of the Affordable Care Act, changes to the minimum wage and significant tax code revisions), the following bills are more likely to receive serious consideration this session.

Working Families Flexibility Act of 2015 (HR 465/S233). This bill would amend the federal wage laws (FLSA) to permit compensatory time off (paid time off as an alternative to overtime) for private sector employees.

TIME: Transitioning to Integrated and Meaningful Employment Act (HR 188). This would require the Secretary of Labor to stop issuing special wage certificates that permit individuals with disabilities, including individuals employed in agriculture, to be paid at lower than the federal minimum wage. It also would require a phase-out of all certificates over three years and amend the federal wage laws to repeal authority and requirements for issuing the certificates within three years.

EEOC Transparency and Accountability Act (HR 550). This would direct the Equal Employment Opportunity Commission (EEOC) to provide information on its public website regarding each case brought in court by the EEOC after a judgment is made with respect to any cause of action.

Worksite Reporting Act (HR 128). The legislation directs the Secretary of Labor to revise certain regulations under the Occupational Safety and Health Act of 1970 (OSHA) to require site-controlling employers to keep a site log for all recordable injuries and illnesses occurring among all employees on the particular site, whether such employees are employed directly by the employer or are employed by contractors or temporary help or employee-leasing services.

National Right-to-Work Act (HR 612 /S 391). This would amend the National Labor Relations Act and the Railway Labor Act to repeal those provisions that permit employers to require employees to join a union as a condition of employment.

End Pay Discrimination Through Information Act (S 83). This measure would amend the Fair Labor Standards Act of 1938 to prohibit retaliation against employees for inquiring about, discussing, or disclosing the wages of the employee or another employee, in response to a sex discrimination complaint or charge, or in furtherance of a sex discrimination investigation, proceeding, hearing, or action, including an investigation conducted by the employer.

Save American Workers Act (HR 30). This bill would amend the Internal Revenue Code to change the definition of “full-time employee” for purposes of the employer mandate to provide minimum essential health care coverage under the Patient Protection and Affordable Care Act from an employee who is employed on average at least 30 hours of service a week to an employee who is employed on average at least 40 hours of service a week.

American Job Protection Act (HR 248 /S 305). This would repeal provisions of the Internal Revenue Code, as added by the Patient Protection and Affordable Care Act, that: 1) impose fines on large employers (employers with 50 or more full-time employees) who fail to offer their full-time employees the opportunity to enroll in minimum essential health insurance coverage, and 2) require large employers to file a report with the Department of the Treasury on health insurance coverage provided to their full-time employees. Applies the Internal Revenue Code as if those provisions had never been enacted.

Immigration Innovation (I-Squared) Act (S 153). Would change work-related visas and the H-1B application by, among other things, increasing the cap from 65,000 to between 115,000 and 195,000 based on market conditions and existing demand. Makes various additional changes to the temporary employment-based visa processes.

Healthy Families Act (HR 932 /S 497). This bill requires certain employers, who employ 15 or more employees for each working day during 20 or more workweeks a year, to permit each employee to earn at least one hour of paid sick time for every 30 hours worked. It would also authorize small employers with fewer than 15 employees to provide the same paid sick time, but allows them to opt out. Requires any small employer that opts out to provide at least 56 hours of unpaid sick time to each employee per calendar year. Covered employers would not be required to permit an employee to earn more than 56 hours of paid sick time in a calendar year, unless the employer chooses to set a higher limit.

Legal Workforce Act (HR 1147). This would require employers to check new hires’ authorization status. The requirement would begin in October 2016 and employers would check using the E-Verify system.

Preserving Employee Wellness Programs Act (HR 1189/S 620). Would clarify rules relating to nondiscriminatory employer wellness programs as such programs relate to premium discounts, rebates, or modifications to otherwise applicable cost-sharing under group health plans.

Workplace Bills Pending in Concord

Even though some of the proposed federal laws, if passed, could be beneficial to employers, in all likelihood, the gridlock in Congress will keep most of these bills just sitting on Capitol Hill. The chance of bills becoming laws increases if they reside in the New Hampshire Legislature.

Unlike the “Do Nothing Congress,” our state legislature has several workplace bills pending, and some of them stand a chance of becoming law. They include:

HB 361 Relative to definition of employee. This bill would modify the definition of “employee” to exclude persons who work exclusively at home via the Internet for online business activities.

HB 411/SB 47 Prohibiting the payment of subminimum wages to persons with disabilities. This bill would prohibit employers from employing individuals with disabilities at an hourly rate lower than the federal minimum wage except for practical experience or training programs (the senate bill also exempts family businesses).

SB 55 Allowing private employers to establish a policy granting a veterans’ preference in employment. This bill would permit private employers to establish a policy for granting a preference to veterans in hiring, promotion, and retention decisions.

SB 156 Prohibiting discrimination against employees who are victims of domestic violence, sexual assault, or stalking. This would prohibit an employer from discriminating against an employee who is or has been a victim of domestic violence, sexual assault, or stalking. It would also provide enforcement through the NH Commission for Human Rights.

HB 450 Relative to definition of employee for purposes of workers’ compensation and establishing a commission to study and make recommendations for a common definition of employee. This bill would exempt any employer that relies in good faith on a written determination of the department of labor that an individual is not an employee from certain interest or late fees under RSA 282-A:141 and RSA 282-A:142. (See related article.)

Just when you thought the stalemate in Congress might translate into a break for employers, our state legislature and, more significantly, state and federal agencies have been busy drafting new workplace bills, creating new regulations and adopting new enforcement initiatives.

Not all new laws and regulations are bad for employers, but the sheer volume of laws and regulations employers need to comply with can be daunting. As always, it’s important for employers and their representatives to keep an eye on the horizon.

James P. Reidy

James P. “Jim” Reidy is a shareholder at Sheehan Phinney Bass + Green in Manchester, where he is chair of the firm’s labor and employment group.

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