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Legislative Update: No regulatory break for employers

Published Wednesday Jun 4, 2014


This Congress may have the reputation as the least productive Congress in nearly 60 years, but don’t be fooled. Congress may not be taking action on big items that make the news, but behind the scenes it has been quite busy. Federal and state agencies have proposed and passed several workplace regulations that employers should know about.

 Federal Workplace Bills

Congress is looking at a rash of workplace bills including comprehensive immigration reform, Affordable Care Act changes and tax code revisions. The following bills are most likely to receive serious consideration this session.

Equal Employment for All Act (HR 645/S 1837) would amend the Fair Credit Reporting Act to prohibit using consumer credit checks against prospective and current employees in making adverse employment decisions.

Veterans and Service Members Employment Rights and Housing Act of 2013 (HR 2654/S 1281) would prohibit employers from denying employment or firing someone based on military service. It also amends the Fair Housing Act and Civil Rights Act of 1968 to prohibit housing discrimination against armed service members.

Employment Non-Discrimination Act of 2013 (HR 1755/S 1281) would prohibit covered employers (based on employee count) and related entities from engaging in employment discrimination based on an individual’s actual or perceived sexual orientation or gender identity.

Fair Minimum Wage Act of 2013 (HR 1010d/S 460) would amend the Fair Labor Standards Act to increase the Federal minimum wage. This would raise the federal minimum wage to $10.10 per hour over two-and-a-half years, in three steps of 95 cents each. It would then adjust annually to keep pace with the cost of living index.

Social Networking Online Protection Act (HR 537) would prohibit employers and certain other entities from requiring or requesting that employees provide usernames, passwords or other information to allow companies to access employees’ personal social networks. 

Pending NH Workplace Bills

Unlike Washington, the NH Legislature has several workplace bills pending that stand a chance of becoming law. Those include:

HB 350: Prohibiting discrimination against the unemployed. This would prohibit hiring discrimination by employers based on an individual’s employment status and/or history. Claims would be managed by the NH Department of Labor, and employers found in violation would be fined up to $5,000 for the first violation and $10,000 for each subsequent violation.

HB 492: Legalization and regulation of marijuana. This bill would legalize the personal use of up to one ounce of marijuana for those 21 or older; would authorize the licensing of marijuana wholesale and retail, and cultivation and testing facilities. It would also impose a tax on marijuana sales. While not a workplace bill, it would affect employers.

HB 1189: Temporary worker rights. This bill would require temporary staffing companies to provide temporary workers with complete information regarding wages, benefits, hours and safety. It also provides protection for temporary workers against being charged for required safety equipment and for employers or staffing agencies charging employees fees to register with the staffing agency.

HB 1403: Establishing a state minimum hourly wage. This would re-establish a state minimum wage of no lower than $8.25 per hour. It would be adjusted annually by the cost of living index.

HB 1405: Prohibiting an employer from using credit history. This would prohibit employers from using credit history in employment decisions for most jobs. Banks, state and government agencies, and businesses required to run credit checks by law are exempted.

HB 1407: Privacy in the workplace. This bill would prohibit employers from requiring applicants or employees to disclose social media or email passwords. This does not apply to social media accounts held for business purposes.

SB 351: Requirement for notice of non-compete agreements prior to the start of employment. This would repeal RSA 275:70, which requires employers to provide applicants with non-compete or non-piracy agreements when making an employment offer. 

Proposed Federal Regulations

Patient Protection and Affordable Care Act Developments: In February 2014, the Internal Revenue Service issued a new final rule concerning the “shared responsibility” sections of the Affordable Care Act for midsized employers. Originally set to take effect this year, but delayed until 2015, the so-called “Employer Mandate” will now be phased in so that eligible midsized employers will not be subject to ACA’s “play-or-pay” penalties until 2016. To be eligible for this delay, employers must average fewer than 100 full-time employees.

Another new rule phasing in the play-or-pay requirement states that organizations with 100 or more employees (about 2 percent of employers) must offer coverage to 70 percent or more of full-time employees in 2015 to avoid penalties, and to 95 percent of full-timers in 2016 and beyond.

Minimum Wage: President Obama signed an executive order in February 2014 boosting the minimum wage of federal contract workers to $10.10 per hour and federal contract workers who are tipped employees to $4.90 an hour. The executive order will raise the minimum wage for new federal contracts beginning Jan. 1, 2015.

Equal Employment Opportunity Commission Enforcement Initiatives: In recent years, the Equal Employment Opportunity Commission (EEOC) has focused on increasing the percentage of cases it brings as systemic enforcement actions, which are cases where the alleged discrimination has a broad impact across states and industries.

In December 2013, the agency showed that the percentage has reached a new high. In the fiscal year ending September 2013, 23 percent of the EEOC’s active docket involved systemic litigation, particularly barriers to recruitment and hiring, discriminatory policies that affect vulnerable workers, discriminatory pay practices, retaliatory practices and policies, and systemic harassment.

Amendments to improve representation and streamline election procedures: The National Labor Relations Board announced in February that it is issuing proposed amendments to what is known as the “Quickie Election” rules. They are aimed at modernizing union organizing and related board processes, enhancing transparency and eliminating unnecessary litigation and delay.

Just when you thought the Congress-ional stalemates might translate into a break for employers, the NH Legislature and state and federal agencies have been drafting new workplace bills and creating new regulations.

Not all of them are bad for employers, but the sheer volume of laws and regulations employers need to comply with is daunting.


James P. Reidy is an employment attorney with Sheehan, Phinney, Bass + Green PA in Manchester. He can be reached at 603-627-8217 or at


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