Each year we look at the workplace bills pending in Congress and in the NH Legislature. We also look at new or proposed regulations and court cases that could shape the workplace going forward. Just like meteorologists in New England, these forecasts, which are at the midpoint in the legislative cycle, provide a best guess on the outcome of these matters.
Since this article was originally written, many of the NH bills were voted inexpedient to legislate or indefinitely postponed. However they are still noteworthy for being considered and some of these issues may return in another form.
Smoke on the horizon: Currently, 43 states have legalized pot in one form or another. The states that border NH, and all of Canada, have legalized the sale and use of recreational cannabis. New Hampshire legalized medical marijuana in 2013. Each year since then, bills were introduced to expand access to cannabis in NH. In this legislative session there are no fewer than eight bills to legalize the cultivation, sale and use of therapeutic and recreational marijuana. Gov. Chris Sununu, once opposed, has now indicated the state may regulate the sale of pot, like it does with store liquor sales.
Hold the mushrooms? (HB 1693): The legislature also considered a bill that would permit the therapeutic use of psychedelic mushrooms (psilocybin). While you may think that is farfetched, two states (Colorado and Oregon), who coincidentally were two of the first states to legalize pot, have legalized this therapy in supervised environments.
Remote work arrangements (HB 1007): This bill would require an employer to provide the employee with written notice of the terms and conditions of any remote work arrangement. This bill was referred to interim study.
Background checks and E-Verify (HB 1110): The federal E-Verify (to confirm the identity of an individual in the I-9 hiring process) is not required for most private sector employers. This bill would have required employers in NH with more than 25 employees to use the E-Verify system or risk civil penalties for noncompliance. It was voted inexpedient to legislate.
Severance agreements and releases (HB 1375): This has been an issue in other states and with the National Labor Relations Board (NLRB) in recent years. In addition to prohibiting broad waivers, this bill would have prohibited nondisparagement and certain confidentiality provisions in severance or separation agreements. It was voted inexpedient to legislate.
Youth hours of work (HB 1519): With the coming of summer, more highschool-age children will be looking for jobs. There are state and federal restrictions on the types of work, the days of work and the hours of work youth (ages 14 to17) can perform. This bill would have permitted youths to work during the school year when their attendance at school is not required. It was voted inexpedient to legislate.
Increasing minimum wage (HB 1322): This perennial bill would have increased the state’s minimum wage from $7.25, which is the same as the federal minimum wage, but less than half of that of other states. If passed, the minimum wage would have increased over time from $9.50 in 2024 to $17 in 2029. This bill has been indefinitely postponed.
Payment for unused vacation and sick leave pay (HB 1178): This issue has come up a few times in recent years. Some states require employers to pay employees for their accrued but unused leave time upon separation from employment. New Hampshire, like many other states, leaves the issue to employer policy or practice. This bill would require payment of unused leave time in the employee’s final paycheck.
Establishing a 4-day workweek (HB 1668): The COVID pandemic caused an explosion in remote work and some say that constant connectivity broke down barriers between work and downtime. Sen. Bernie Sanders (D-VT) recently made news by suggesting the American worker is exhausted and shouldn’t be required to work more than 32 hours a week. Closer to home, Massachusetts has proposed tax benefits for employers (perhaps for wellness or traffic relief) who institute a four-day (four 8-hour days) work week. It was voted inexpedient to legislate.
Workplace Bills Pending in Congress
There are many workplace bills pending before Congress and a few are listed below but given the razor thin majorities in the House and Senate, as well as the widening partisan divides common in election years, it is unlikely we will see many, if any, get signed into law.
S.567: Protecting the Right to Organize Act of 2023
S.1664: The Healthy Families Act
HR.1541: Small Business Workforce Pipeline Act
HR.1163: Protecting Taxpayers and Victims of Unemployment Fraud Act
HR.17: Paycheck Fairness Act
HR.6581: Protecting Older Workers Against Discrimination Act of 2023
HR.2851: National Apprenticeship Act of 2023
Federal Agency Proposed Rules/Enforcement Activity
National Labor Relations Board (NLRB) NLRB Joint Employer Rule: The NLRB recently adopted a standard for determining joint-employer status, which followed its rescission of a rule in place during the last administration. Joint-employer status means “two or more entities may be considered joint employers of a group of employees if each entity has an employment relationship with the employees, and if the entities share or codetermine one or more of the employees’ essential terms and conditions of employment,” according to the NLRB. At the time this article was written, a Federal Court in Texas vacated the new rule. That will likely not be the last word on this topic.
U.S Department of Labor’s Proposed Independent Contractor Rule and Update to Overtime Exemptions: The U.S. Department of Labor proposed a new six-point economic realities test for determining whether an individual is an independent contractor or an employee covered by federal wage laws. The new rule replaces a 2021 framework that was a carryover from the prior administration. This new rule makes it more difficult to establish an independent contractor classification. Again, at the writing of this article, the rule has been challenged in court and a bill has been introduced in Congress to overturn the rule.
The Department also proposed the long-anticipated update to the salary threshold for employees to be exempt from overtime under federal law. The last time this was proposed, during the Obama administration, there was a last-minute court decision blocking the update. While no final date has yet been set for this rule to be effective, HR professionals are preparing for the change knowing that there could be another last-minute U-turn.
EEOC Proposed Guidance on Harassment: Last Fall the U.S. Equal Employment Opportunity Commission proposed updated guidance for employers on preventing and responding to harassment in the workplace. EEOC is still accepting public comments on the guidance but we expect the final version to still suggest employers conduct prompt and adequate investigations of harassment complaints and, as needed, take corrective action reasonably calculated to prevent further harassment.
Court Cases to Watch
The U.S. Supreme Court has a busy docket this year. That includes a few workplace-related cases. Those cases include:
Murray v. UBS Securities, LLC., a case to determine when a whistleblower can seek protection from retaliation under the Sarbanes-Oxley Act. This case is important because it could also establish a standard of having to prove retaliatory intent to prevail as a whistleblower;
Acheson Hotels v. Laufer, involves an independent tester who evaluated the accessibility of a facility under Title III of the ADA when the individual had no intent to access the facility to avail himself/herself of the goods and services at the place of business;
Muldrow v. St. Louis, will consider if an employer’s forced lateral transfer of an employee to a different job rises to the level of adverse employment action in violation of federal discrimination law.
There is no shortage of bills or proposed regulations at the state and federal level. And each term, the U.S. Supreme Court always has an important case or two involving employment law. Our best advice is to stay tuned because the one constant in workplace law is change. n
Attorney Jim Reidy is a shareholder at Sheehan Phinney where he is co-chair of the firm’s Labor and Employment practice group. For more information, visit sheehan.com
Current Issue - June 2024