N.H. Senate panel votes to kill employer criticism bill

Measure would bar companies from firing a worker for ‘egregious’ statements

A New Hampshire Senate committee decided Tuesday that an employer can still fire someone who criticizes his workplace, but that was about the only decision reached on several bills before legislative panels that are seeking to limit the control a company has on its workforce.

The other bills, on which no action was taken, would:

 • Prevent employers from requiring their workers hand over their Facebook passwords

 • Forbid most employers from checking their a job applicant’s credit history

 • Require contractors to pay prevailing wages on state contracts (as they now have to on federal contracts).

But the Senate Commerce Committee, by a 4-1 vote, did dispense with Senate Bill 302, which originally stated, “No criticism of an employer by an employee, whether public or private, shall be grounds for termination of employment.”

Sen. David Pierce, D-Lebanon the sponsor of the bill, backed off the broad language by offering an amendment that would allow for such termination for “egregious” statements, but he couldn’t get any other member of the committee to go along.

“This bill would eliminate employment at will,” said the committee’s chair, Andy Sanborn, R-Bedford, citing as an example the boss standing behind a sales clerk telling a potential customer over the phone that “the product stinks,” and not being able to do anything about it.

Pierce protested that there were limitations on at-will firing, such as racial discrimination, and he added that under his amendment that kind of statement – as long as it wasn’t true – could be grounds for dismissal.

But even fellow Democrat Andy Hosmer, D-Laconia – general manager of the AutoServ, his family’s automotive business – didn’t agree: “Employees may have the right to free speech, but we depend on our reputation. When you can broadcast your opinions to millions of people, you can damage the reputation that we as employers have worked so hard to build.”

The senators were assured that there were protections in place for whistleblowers on company actions that were illegal, and threatened public or worker safety, or the write to organize.

Social media was the focus of House Bill 1407, a bill that would have required employees or prospective employees to disclose email and social media passwords. But this measure had a sympathetic ear before the House Labor Committee.

When some employer groups raised concerns that this might prevent management from being able to investigate employment misconduct, like sexual harassment, several committee members agreed with New Hampshire Civil Liberties Union Executive Director Devon Chaffee, who compared that with allowing employers to go through people’s mail or wiretap them.

But the bill gives employers the right to get access to communication that goes over the company’s equipment.

Meanwhile, over on the Senate side, the commerce committee heard testimony about whether a company can consider credit checks in employment decisions.

In fact, SB 295 would make it unlawful to even run a credit check for such purposes, unless required by state or federal law.

But there are other exemptions — for employees who are in a managerial position of a division of the business, if that position involves access to the employer’s personal or financial information, if it involves collecting debts or transferring money, or if it comes with an expense account or a company credit card.

Those exemptions weren’t enough. A representative of NextEra Energy, owner of the Seabrook nuclear power plant, said it wanted to clarify the language so nuclear power plants, which are required by federal regulation to make credit checks, would still be able to do so.

Sanborn brought up store clerks who handle expensive jewelry and Sen. Jeb Bradley, R-Wolfeboro, raised the issue of home health care workers who have access to financial information of the people they are taking care of.

The bill’s sponsor, Sen. Donna Soucy, D-Manchester, said she would be willing to work on the language, but stressed that many people have troubled credit through no fault of their own.

“Just because they are touching a precious metal doesn’t make them any more risky than those that didn’t have trouble with their credit history,” she said.

The prevailing wage hearing held by the House Labor Committee attracted the most testimony, evenly divided between contractors and unions.

HB 1592 would bring back the requirement – repealed in New Hampshire in 1985 – that those working on state contracts pay the prevailing wage in a particular county. The law – which would not apply to schools and municipal buildings – would affect contracts of $100,000 or more, if the committee approves the amended version offered by sponsor Rep. Jeff Goley, D-Manchester.

Every other Northeast state has similar laws, testified Goley, and it only requires contractors pay the average wage that is already being paid anyway.

“I don’t think it would increase costs. The majority of costs are material and not labor-related,” he said.

The bill’s fiscal note, however, indicates that it would increase the cost of state contracts by about $1.1 million, and would cost the state another $400,000 for three departments to administer it.

Contractors complained that the wages were not average, since only those contractors with state contracts bother to fill out the survey determining the prevailing wage, resulting in a self-fulfilling inflation, since they are already required to pay such a wage.

Besides, they added, the wage rates are arbitrary.

“We have pavers on federal projects who make $26 an hour until they cross a county line, and then they are making $46 an hour, and then they cross another county line, and they are back to $26 an hour,” said Mark Charbonneau, a principal of Continental Paving, based in Londonderry. “You are asking to bring more stuff back to make our life miserable.”

But Tom Herse, business manager of LIUNA Laborers Local 976 in Portsmouth, cited state contracts that are hiring people who are sometimes paid the minimum wage through a staffing agency.

“This bill is to not allow contractors to make obscene profits on the backs of the workers,” he said.