Lawmakers face a slew of labor-related measures

With Congress likely to approve an increase in the minimum wage in 2007 – especially since President Bush has jumped on board with his support – the issue won’t be taking its familiar place at or near the top of New Hampshire labor advocates’ legislative agenda this year.

Instead, the real push this session will be working with the myriad of laws that govern the relationship between employers and employees. While there is no one earth-shaking measure coming down the pike — and many of the ideas have been kicked around for years — with Democrats in control of the Legislature, there is a good chance that many of 32 bills will get through year.

These bills, when taken together, might be felt keenly in some sectors of the economy, particularly the construction industry.

For years, the construction industry has either been a free market haven or a complicated mess, depending on whether you look at it from the regulated or the regulators’ point of view.

For several years, unions and regulators have attempted to tackle the issue of “independent contractors” in the construction industry — people employed as subcontractors who don’t mind being independent when it comes withholding taxes, but sometimes take a different view when they are hurt on the job, or need to collect unemployment.

The industry on the whole has been somewhat resistant to changing the system, not wanting an overly intrusive state driving up the cost of construction.

But Sen. Margaret Hassan’s bill – a remake of last year’s Senate Bill 267 – will be the major bill looking to tackle the matter, trying to set up a single definition of an independent contractor that will encompass wage and hours, workers’ compensation and unemployment insurance.

Under the Exeter Democrat’s measure, employers and employees would have to sign a written agreement that a person is an independent contractor, but it increases the penalties for anyone who coerces an employee to do so.

A bill sponsored by Rep. William Infantine, R-Manchester, would require that employers post the definition at a job site. He also has sponsored a bill that would allow the Insurance Department to step in and mediate disputes on this issue. (The Labor Department used to do that, until it was discovered last summer that it didn’t have the statutory authority.)

Infantine and others also want even subcontractors to be covered by workers’ compensation. Infantine’s bill would affect those who work 1,000 hours a year at the job site. That would include seasonal workers who work full time, but would still exempt part-time workers. Rep. Bernard Benn, D-Hanover, is sponsoring a similar bill that would require all LLCs and corporate subcontractors on construction sites to carry workers’ comp.

Sole proprietors would not be affected by the laws, said Benn, because they aren’t covered under the original workers’ compensation law. He acknowledged that some subcontractors might avoid becoming a corporation or an LLC to avoid paying workers’ compensation premiums.

His bill, he said, “tightens a loophole. It doesn’t end it.”

Other workers’ comp-related bills would step up enforcement of those companies that don’t carry the insurance. Rep. Patrick Long, D-Manchester, and a member of the Ironworkers Union, is sponsoring a bill that would allow a competitor or union to sue a company that doesn’t provide workers’ compensation insurance. The bill, he said, would not allow for attorneys’ fees, and the proceeds would go to the state treasury, so as not to encourage frivolous lawsuits.

To prevent injuries in the first place, Rep. John DeJoie, D-Concord, has reintroduced another bill that failed last year, requiring that workers (including independent contractors) take a 10-hour OSHA course or equivalent in order for a company to obtain state contracts.

Senate Republicans stopped the bill last time, arguing that the state already requires that a safety plan be in place, but DeJoie disagrees. “It’s not getting done,” he said.

Unemployment insurance reform is another batch of unfinished business from last year.

Last session, Department of Employment Security Commissioner Richard Brothers’ reform package bit the dust when he proposed increasing the base amount used to calculate the unemployment tax. Brothers had argued that the tax increase would keep the state’s unemployment fund from sinking so low that it would trigger an increase in the overall tax rate. But increasing taxes to prevent taxes didn’t go over well in the Republican Legislature – even though the commissioner himself is a Republican.

Another bill in the Brothers package that bit the dust last year is being revived.

Sponsored by Sen. Joseph Kenney, R-Union, the measure would establish a study committee to look at what to do about employee groups with negative balances – those that collect more in unemployment benefits then they pay in premiums. They are usually season workers, like those in the construction industry, the tourist industry and school bus drivers.

But even without that reform, Brothers thinks he has enough of a cushion in the trust fund to push through the rest of his package, especially doubling the amount for administration to prevent cutbacks that could result in closing some offices around the state.

In addition, he said, there is enough money to restart a job-training fund to train unemployed workers so they won’t have a trouble finding another job, and to expand part-time exemptions to cover those who are caring for the elderly and disabled.

Sen. Martha Fuller Clark, D-Portsmouth, sponsored the latter bill. The part-time exemption, passed last year, allowed unemployed workers to refuse full-time work and still collect benefits, if they were caring for young children. The fear that this would be a drain on the unemployment fund didn’t pan out, because the workers affected were able to find part-time work rather quickly.

So instead of costing an estimated $250,000, it cost some $40,000. This year’s bill would expand the exemption to those caring for the disabled, with an estimated cost of $100,000.

Other legislators would go even further. One bill, sponsored by Rep. Jane Kelly, D-Hampton would allow unemployed workers to volunteer and still collect benefits. Currently, an employed person is supposed to spend all of his time looking for work.

Kelly said she sponsored the bill at the request of a constituent, Bruce Montville, president of LifeWise Community Project, a volunteer organization that works to prevent students from dropping out.

“This bill goes against that culture of DES,” said Montville, who’s also the former state director of volunteerism. “They seem to be looking at every reason to disqualify you.”

Montville argued that volunteering is similar to participating in a job-training program. “You are learning new skills and the very same things happen with volunteering,” said Montville. It might be even more likely to lead to job referrals or offers, as well as being helpful at interviews. “What would you rather hear at an interview?” he asked. “That they are doing nothing or that they spent their time volunteering. I think an employer wants someone who is productive.”

Representative Long also is proposing to expand a law designed to prevent layoffs, by requiring notice by those companies laying off workers.

Long’s bill would halve the threshold before layoff notification is given from 100 employees.

Also coming up this session is the issue of outsourcing jobs to workers in other countries.

Under a bill sponsored by Rep. Chuck Weed, D-Keene, an employer laying off 50 or more workers would have to provide all sorts of information to the state Department of Labor, including whether those jobs were outsourced out of the country. If the jobs were exported, then the company wouldn’t be able to do business with the state for seven years.

Weed acknowledged that some companies might have to lay off people because of economic reasons having nothing to do outsourcing, but those companies have nothing to fear from a state Department of Labor investigation into the matter.

“I’m not terribly sympathetic,” he said, adding sarcastically: “I really feel sorry for a big corporation that has to fill out some paperwork to make sure they aren’t trying to get rid of New Hampshire jobs while still taking money from the taxpayer.”

Any company with more than a loss of 50 jobs has to identify any procurement contract, grants or loans the company has with state and local government and has to say whether the jobs were outsourced. If they are in violation or don’t answer truthfully, the contract would be void, and they would be forced to pay 20 percent of the value of the contract.

Such a law might run afoul of international trade agreements, “but we have a strong interest in protecting state sovereignty,” Weed said. “If we are forbidden to do that, than at least we are throwing down the gauntlet to the national government.”

Rep. Peyton Hinkle, R-Merrimack, is sponsoring a similar bill that would deny state contracts for five years (and fine them 20 percent of the contract) if they outsource New Hampshire jobs outside the country.

“There are too many opportunities for these jobs to be taken offshore,” Hinkle said.

Rep. Jordan Ulery, R-Hudson, is sponsoring a bill that would allow a bidder on the losing side of a contract to sue a winning bidder if the winner employs illegal aliens.

“If I use an unfair labor practice to win a bill,” Ulery said. “I should be held libel for my failure to follow the law.”

Of course, someone could always call immigration officials to prosecute the rival, “but criminal penalties aren’t where it is at. It’s civil penalties. Just ask O.J.”

There also are several workers’ protection bills coming up: doubling the minimum amount of pay from two to four hours for employees called in to work; mandating a 10-hour break before requiring an employee to work again; requiring that kids stop working after 9 p.m. on a school day; making sure that those who get salary and commission get at least time and a half for overtime; and limiting forced overtime for nurses.

The last bill failed last year when the health-care industry objected, saying that because of the nursing shortage, this could lead to a dangerous situation. Advocates countered that forcing nurses to work long hours also could lead to dangerous situations.

Two other laws would protect workers against various surcharges. One sponsored by DeJoie would prevent temporary employers primarily used by the construction industry from being charged for transportation to go out to a job site. The other, sponsored by Rep. Deborah Wheeler, D-Northfield, on behalf of the state Department of Labor, would prevent employers or third parties from charging workers fees from being paid though a debit card.

“You shouldn’t have to pay a fee to get a pay check,” said Cindy Flynn, administrator at the state Inspection Division. In addition, said Flynn, some of these cards can only be used at certain retail stores and others are mandated, as opposed to being made an option.

“You can’t mandate direct deposit, and you can’t mandate electronic deposit into one of these cards,” Flynn said.

There also are two bills that pertain to labor unions that practically bookend each other. The first, the perennial “right to work” bill, is not expected to pass. The bill, which gives workers the right to opt out of a union that negotiated their contract, hasn’t gotten very far, even with a Republican-dominated Legislature. This year, Kelley has the Democratic answer, allowing workers to walk out of employer meetings about political and religious beliefs, including anti-union meetings, without retribution.

Kelley, who said that she was submitting the bill on behalf of the AFL-CIO, said that the measure would insure that employers “don’t shove Jesus down my throat, or Mohammad, or whatever else they want you to believe.”

Finally, at least two health-care bills would try to pressure employers to increase coverage. One, by DeJoie, would require hospitals to disclose whether contractors on a construction projects provide health insurance as part of the certificate of need process.

Long’s bill would allow the state and municipalities to require construction firms engaged in public work projects provide health insurance and or job training. “Why should we spend taxpayer money subsidizing companies that don’t do what is right by their workers?” he said.

While neither bill would directly force construction companies to provide health coverage, Gary Abbott, executive vice president of the Associated General Contractors of New Hampshire, thinks that they unfairly single out one industry.

“How are you going to enforce this? A construction site has multiple employers. You are going to have to deal with all these questions even before the prime contractor is even selected. Health insurance should be a private contract. The state shouldn’t really get involved in this,” he said.

But for better or worse, the state is getting more involved. The only question is how involved it will get.

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