Cook On Concord: Do we really need all this legislation?

When you consider that there are 424 New Hampshire legislators (400 in the House and 24 in the Senate), if each legislator has but two ideas that he or she thinks require legislation, there would be 848 bills. But they often introduce more than two bills a year, and there is plenty to keep them and the array of lobbyists busy.

No matter what a bill’s subject, certain questions come to mind. First, is the bill helpful? Second, does the bill address a problem that needs to be solved? Third, is this law necessary or would private contracting and free enterprise take care of the issue better?

A few of the bills under consideration that could be tested against this set of questions are:

• House Bill 515, a law allowing groups to be formed to purchase health insurance. This is another attempt to reduce the cost of health care. As with all such efforts, the question is whether a law about buying insurance can really solve the problem and whether another law makes it easier or harder to understand the entire situation.

• House Bill 1133 would require employers to give employees time off without pay to perform certain “civic duties.” Apparently the response to a situation in which an employee received static from his or her employer while serving in an unpaid position on a state commission, this is in the category of bills that tell employers how to deal with their employees. It is open to the question as to whether that is best left to the individual employee and employer. There are already laws that govern military service, jury duty, etc. Laws of general application sound good — but the complexity is in application. Do employees give up some flexibility to volunteer when they take a job? On the other hand, does anyone want to risk a headline that says, “Jones opposes civic duty” by objecting to this bill?

• House Bill 1138 requires an employer to pay four hours pay to any employee called in to work. If passed, this law ostensibly would revise all of the labor contracts negotiated between unions and employers that provide for a different system of pay. While well-meaning, is this really something the Legislature wants to mandate?

• House Bill 1139 requires the passage of at least 10 hours before any employee may be required to work again after his or her last shift. Again, would the Legislature really be helping internal employer-employee relations if it passes this bill? What effect would it have on certain specialized occupations or shifts? Put another way, does one size fit all?

• House Bill 1703 requires employers with 500 or more employees to report to the Department of Health and Human Services on the percentage of payroll spent on health insurance. There are not a huge number of employers in the state with 500 or more employees and the question that arises from this bill is whether it is aimed at a particular employer (for example, Wal-Mart) and whether it is a precursor to requiring certain employers to provide certain benefits in the health insurance field, or at least to pay a certain percentage of their revenue or payroll costs for health insurance. Again, is this helpful? If the goal is to acquire information, would not a voluntary system of inquiry serve just as well?

• House Bill 1151 is one of many bills being discussed by the Legislature concerning “illegal aliens” and the employment of them. Some questions: first, is this covered by federal law in most cases, which makes state legislation unnecessary? Second, does a bill make a distinction between a refugee and others? Third, are all these bills necessary, and is there really a major problem in New Hampshire which this will address and resolve, or are they the reaction to headlines and isolated incidents?

• House Bill 506, seemingly innocuous, makes a major change in the law to include employees of certain not-for-profit organizations under the protection of the state Human Rights Commission. Not-for-profit organizations are currently subject to the jurisdiction of the federal Equal Employment Opportunity Commission, not the state commission. There are different rules as to the size of employer covered, process, remedies and other distinctions that make this a much more complex matter than it would appear. Also, while the bill attempts to exempt religious organizations, critics of the bill have wondered how the distinction would be applied to religious hospitals, religious nursing homes, religious colleges and the like, and whether they would be considered religious, educational or charitable organizations. Full implications of changes need to be understood before laws that appear good on the surface are passed.

All of these laws would have an effect on New Hampshire employers. Undoubtedly, they were all introduced with noble motives. Whether the Legislature tests them against the questions listed initially in this article has yet to be seen.

Brad Cook is a partner in the Manchester law firm of Sheehan Phinney Bass + Green and heads its government relations and estate planning groups.