Legislative Watch

Employers of all types and sizes are overwhelmed with the number and scope of new workplace laws and regulations. But this year, Congress is not to blame … for now. As of press time this Congress, just like its predecessor, is in the running for the least productive in nearly 60 years. The federal agencies, meanwhile, have been active proposing and enforcing new workplace regulations. Here are some of the more noteworthy workplace bills pending in Concord and Washington.

 Workplace Bills Before Congress

While there are some high profile workplace bills pending before Congress (such as repeal of the Affordable Care Act, changes to the minimum wage and significant tax code revisions), the following have the greater likelihood of serious consideration. But even these could be delayed by gridlock.

Working Families Flexibility Act of 2015 (HR 465 /S 233): Would amend the federal wage laws to permit compensatory time off (paid time off as an alternative to overtime) between private employers and their employees.

EEOC Transparency and Accountability Act (HR 550): Would direct the Equal Employment Opportunity Commission (EEOC) to provide information on its website regarding each case brought in court after a judgment is made. This would mean businesses that have an action brought against them would have more public records. It would also amend the Civil Rights Act of 1964 to change how the EEOC must engage in informal conciliation before filing a lawsuit, requiring it to enter into serious settlement discussions and not superficial attempts at reconciliation.

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

Original Living Wage Act of 2015 (HR 537):  Would amend the FLSA to increase the minimum wage beginning Sept. 1. It requires the Secretary of Labor to determine such a minimum wage rate by June 1 and once every four years thereafter.

Hire More Heroes Act (HR 22) (S 12): Would amend the Internal Revenue Code to exempt any employee with health care coverage administered by the Department of Defense, including the TRICARE program, or by the Veterans Administration, from being classified as an eligible employee of a large employer. This means the employer is not required to provide such employees with minimum essential health care coverage, thus providing more incentive for employers to hire veterans.

Save American Workers Act (HR 30): 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. It would change the definition from an employee who works on average at least 30 hours a week to one who works on average at least 40 hours a week.

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

Immigration Innovation (I-Squared) Act (S 153): Would change worker visas and the H-1B application by increasing the cap from 65,000 to between 115,000 and 195,000 based on market conditions and existing demand. It also makes changes to the temporary visa processes.

Healthy Families Act (HR 932/S 497): Would require certain employers who employ 15 or more employees 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 of paying sick time. Instead, it 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): 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 related to premium discounts, rebates or modifications to otherwise applicable cost sharing under group health plans. 

Workplace Bills Pending in Concord

Unlike the “Do Nothing Congress,” the NH Legislature has several workplace bills pending.  Several of these bills stand a chance of becoming law.  They include:

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

HB 411: Prohibiting the payment of subminimum wages to persons with disabilities.  It 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. A similar bill (SB47) is before the NH Senate.

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

HB 450: Relative to definition of employee for purposes of workers’ compensation. It 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.

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 keeping track of them is daunting.

James P. Reidy is a management lawyer and shareholder at the law firm of Sheehan Phinney Bass + Green, P.A. in Manchester and moderator for NHLABORNET. For more information, visit www.sheehan.com.