House Labor Committee hears argument over earned time measure

Editor’s note: This article has been changed to reflect that House Bill 1514 as proposed would still allow “use- it-or-lose-it” policies.

House Bill 1514, the latest version of a bill proposed by Rep. Michael Cahill, D-Newmarket, which would require companies to pay workers for earned time, was better but still not good enough, contended several business groups that testified against it at a House Labor Committee hearing on Thursday.

The bill, said Cahill, is an attempt to address a growing problem of people not getting paid for unused vacation time when they leave. Cahill cited statistics from the state Department of Labor that show just short of a quarter of complaints received by the agency in 2018 concerned disputes over earned vacations not taken before separating from the company. In 2020, that number was up to 42 percent, though last year it fell to 29 percent.

Cahill’s bill would allow “lose it or use it” policies, and it would not include sick days. It would require companies with more than 15 employees to inform employees of their earned time accrual and limits, how to get it and how much they have.

According to the bill:

• If an employee is laid off or leaves in good standing, they should be paid earned time, no later than the next pay period.
• If a business is sold, the company needs to either pay out the earned time, or make sure it is transferred to the new owner.

That last scenario was a sticky one, testified a Department of Labor representative. Under current law, the old employer is responsible for vacation pay, but the cases are difficult because it often isn’t a viable business anymore.

“This proposal is a huge improvement,” said David Juvet, senior vice president at the Business & Industry Association, but he had concerns. “We would argue that earned time is not compensation, it is a benefit.

That got some pushback from Rep. Janice Schmidt, D-Nashua.

“You use the word benefit as if it was a gift from the employer. In my estimation, it is part of the employee package that is a contract. You are asking to have it fulfilled.”

But that contract has to be explicit, countered Juvet. “If it doesn’t specifically say what happens to unused time if they leave, if it doesn’t say that, it doesn’t mean that they will get it.”

This bill is an “improvement,” agreed Bruce Berke, testifying on behalf of the New Hampshire chapter of the National Federation of Independent Business, but in the next breath he said “it really is an invasion of the relationship between the employer and the employees” and that “it would put employers into a box and they lose flexibility about what they can offer to that employee during the hiring process.”

It could actually hurt an employee, said Alison Milioto, a human relations consultant with BlueLion LLC in Manchester. Employers that don’t spell out their accrual policies in their handbook default to accrual on a prorated basis. And those that do might be tempted to prorate time anyway, so someone doesn’t take their vacation early in the year and then quit. But where does that leave workers “who can’t go to Disney World in February because they haven’t accrued enough?”

Vaccine bills

The hearing followed hearings on three vaccinated-related bills, which both the BIA and the NH Hospital Association opposed.

The first, HB 1364, – was sparked by a person who quit rather than get vaccinated but was told he must adhere to a noncompete agreement, said sponsor Rep. Terry Roy, R-Deerfield.

However, the bill – according to his proposed amendment – is more broad. It would nullify such an agreement if someone is terminated for cause, and “it doesn’t have to be over Covid,” or to pay them for a year. If the employer refuses, it could be sued for triple damages.

“If someone is stealing, it is inappropriate to require them to pay them for a year,” Juvet testified.

HB 1143 is more specific, requiring severance at two-thirds pay for at least six months, only as a result of opting out of a “medical mandate.” Juvet noted that “medical mandate” is not defined and could include wearing a mask.

Finally, HB 1410 would give a cause of action for those harmed because their employer forced them to receive “medical treatment” – that is a vaccination. Customers can also sue. True, they could leave, said Rep. William Foster, R-New Boston, but that isn’t a real choice. He compared the mandates to torture. “If I make the stick powerful enough, they are going to submit. When is someone going to break, when I lose my job, or if I really want to go to a concert?”

But the bill raised a host of questions.

First, workers’ compensation law prevents employees from suing their employees, pointed out the Hospital Association.

Second,

“I could go to a restaurant and say I was injured,” said Juvet. “What if I got on accident on the way to the vaccination site? I can see a whole new cottage industry of suing employers who are trying to do the right thing.”