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HR Legal Roundup
Published Wednesday, June 7, 2017

The workplace is more regulated than ever before, causing human resources professionals to spend a majority of their time trying to stay in compliance. Recent elections caused a shift in power and with that a shift in focus on some workplace issues.

However, while one widespread campaign promise was to get government out of the way of business, especially with regard to administrative rules and regulations, there is no shortage of workplace bills both in Concord and in Congress.  

Workplace Bills before Congress
There is no clear consensus, even among Republican lawmakers, about immigration reform, tax law changes or the replacement of the Affordable Care Act.  However, there are many other workplace issues Congress is considering.  

• Protecting Workplace Advancement and Opportunity Act (HR 4773): This would require the Secretary of Labor to nullify the proposed rule defining overtime exemptions for executive, administrative, professional, outside sales and IT employees.
It would also require the Secretary of Labor to conduct an economic analysis with improved data on all employers and minimize the impact on employers before promulgating any similar rule.

Finally, it would require U.S. Department of Labor to provide a rule regarding the salary threshold exemption under the Fair Labor Standards Act (FLSA) and for other purposes. In short, the outcome of the overtime rule changes is still uncertain. The only thing that is clear at this point is that the proposed changes are not going into effect as proposed.  

• HERO Transition from Battlespace to Workplace Act of 2017  (HR 63): It would amend the Internal Revenue Code to allow employers a business-related tax credit of $1,000 for hiring veterans and engaging in reintegration efforts.

• Family and Medical Insurance Leave Act or the FAMILY Act (HR 947/S 337): This would provide paid family and medical leave (FMLA) benefits to certain eligible individuals, and for other purposes. FMLA leave is unpaid unless employers permit or require employees to use their accrued paid leave time. This bill would create a fund for paid FMLA leave and the fund would be administered by a new department within the U.S. Social Security Administration.

• Labor Relations First Contract Negotiations Act of 2017 (H.R. 156): This would amend the National Labor Relations Act to require the arbitration of initial contract negotiation disputes and avoid delays with the negotiation of the first collective bargaining agreement between the parties.

• Davis-Bacon Repeal Act (S. 244): Would repeal the wage requirements of the Davis-Bacon Act, which requires that the locally prevailing wage rate be paid to various classes of laborers and mechanics working under federally-financed or federally-assisted contracts for construction, alteration and repair of public buildings or public works.

• Truth in Employment Act of 2017 (HR 744): This would amend the National Labor Relations Act to protect employers from hiring union activists who seek only to organize (“salt”) a union in that workplace.

• Rewarding Achievement and Incentivizing Successful Employees Act or the RAISE Act (S. 155): Would amend the National Labor Relations Act to permit employers to pay higher wages to their employees than provided for in a collective bargaining agreement.

• National Right-to-Work Act (H.R. 785): This would preserve and protect the free choice of individual employees to form, join or assist labor organizations, or to refrain from such activities.

• Youth Access to American Jobs Act of 2017 (H.R. 1050): The Act would establish a pilot program to promote public-private partnerships among apprenticeships or other job training programs, local educational agencies and community colleges, and for other purposes.

• Original Living Wage Act of 2017 (H.R. 122): This would amend the Fair Labor Standards Act to calculate the minimum wage based on the Federal poverty threshold for a family of four, as determined by the Bureau of the Census.  Currently the federal minimum wage is based on the level Congress sets after reviewing many sources of information.

• A joint resolution disapproving the rule submitted by the Department of Labor relating to drug testing of unemployment compensation applicants (S.J. Res. 23): This would disapprove the rule submitted by the Department of Labor relating to drug testing of unemployment compensation applicants. The rule sets a narrow definition of occupations that can be tested and constrains a state’s ability to conduct drug testing in its unemployment system.  

While the Republicans control the White House, the Senate and the House of Representatives, partisan disputes and lack of consensus within the majority party ranks are stalling any meaningful debate, compromise or progress on most matters before Congress.

Workplace Bills in Concord
Unlike the apparent stalemate in Congress, the NH legislature has been busy considering several pending workplace bills. They include:

• HB 115-FN: A state minimum wage. The senate killed this bill that would re-establish a state minimum wage and provide for annual adjustments starting in 2019. The minimum wage would have increased from $7.25 to $9.50 on Jan. 1, 2019 and then to $12 on Jan. 1, 2020.

• HB 130: Prohibiting an employer from using credit history in employment decisions. This bill has been introduced in one form or another in the last few legislative sessions.  It would establish the Employee Credit Privacy Protection Act, which would prohibit employers from using credit history in employment decisions except when credit history is substantially related to the employee’s current or potential job, and the employer still complies with federal Fair Credit Reporting Act.

• HB 194: Permitting employers to pay wages to employees weekly or biweekly. This bill would permit employers to pay wages to employees weekly or biweekly. Currently employers must pay weekly unless the NH Department of Labor approves their request for bi-weekly, semi-monthly or monthly payrolls.

• HB 442: Criminal records checks in the employee application process. This bill would prohibit employers from asking a job applicant about his or her criminal history prior to an interview.

• HB 478: Prohibiting discrimination based on gender identity. The House tabled this bill that would define gender identity and would add gender identity among those protected against discrimination for employment and housing, including age, sex, race, creed, color, marital status, familial status, physical or mental disability, or national origin.

• HB 520: Right to work. This bill would have prohibited collective bargaining agreements that require employees to join or contribute to a labor union as a condition of employment.

This bill was recently defeated in a close vote. If it had been approved, NH would have been the only right-to-work state in New England.

SB 22: Employer immunity for disclosure of certain worker employment information. This bill would provide immunity from civil liability to an employer who, in good faith, discloses employment information about a worker to a prospective employer. This was intended to cover employment verification, evaluations, references and reasons for termination.

• SB 226-FN: Eliminating the waiting period before eligibility to receive unemployment benefits. This bill would eliminate the waiting period before eligibility to receive unemployment benefits.

• SB 628-FN: A family and medical leave insurance program. This bill would establish a system of paid family and medical leave insurance based on contributions from employees through payroll deductions. This matter has been sent to committee for further study.

James P. Reidy is a shareholder at the law firm of Sheehan Phinney in Manchester, practicing in the areas of management-side labor and employment law. He is also the moderator of NHLABORNET. He can be reached at 603-627-8217 or jreidy@sheehan.com.

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