The Legislature reached “Crossover” last week, the unofficial “halfway” point of the legislative session. At this time, the House has considered all House bills and sent those that survived to the Senate. The Senate has done the same, sending its bills to the House. This provides a convenient time to assess the session and focus on remaining bills that could directly impact employers, positively or negatively.
Two bills are still alive. House Bill 1221, which is in the Senate Ways and Means committee, reduces New Hampshire’s business profits tax from 7.6% to 7.5%. It’s a modest reduction but it could provide significant relief to BPT payers hit hard by the pandemic. Senate Bill 435 is in House Ways & Means. The bill removes a punitive double apportionment for multi-state companies declaring a loss. New Hampshire is the only state in the country requiring multi-state companies to apportion their losses twice and doing so creates an unfavorable business tax climate. BIA is supporting both bills.
HB 1089 and SB 296 are two problematic bills employers will want to focus on. HB 1089, now in Senate Commerce, would severely impact employers who utilize non-compete agreements for employees who have access to critical corporate information, client lists, etc. The bill stipulates that any “material change in employment” would invalidate an existing non-compete agreement. The bill did not define a material change in employment and that would lead to uncertainty and increased litigation. SB 296, currently in House Judiciary, would remove an employer’s ability to have a case removed from the Commission on Human Rights and sent directly to the courts. Plaintiffs would still enjoy this right. Aside from its blatant unfairness in how plaintiffs and defendants are treated, there isn’t a compelling reason to disrupt a system that has worked smoothly for decades.
Most of the work this session has been spent putting out fires. There were multiple proposals to eliminate or roll back recent legislation establishing the statewide administrative Housing Appeals Board. This body operates much like the Board of Land and Tax Appeals and gives developers a faster, easier and less expensive appeals process when they believe workforce housing projects were improperly killed at the local level. BIA led the effort to enact the Housing Appeals Board knowing workforce housing is crucial for New Hampshire employers, and worked hard this session to kill legislation designed to cripple it. On the positive side, SB 400, currently in House Municipal and County Government, provides numerous “carrots and sticks” to encourage greater development of workforce housing and educate local planning and zoning boards on existing municipal obligations to allow the creation of workforce housing. BIA is supporting that effort.
An extraordinarily dangerous bill, SB 341, was quietly making its way through the legislative process. The bill, which focused on the PFAS controversy in Merrimack, sought to upend legally valid settlement agreements between the town and a local manufacturer. It was inappropriate to call out a single employer the way the bill did, but the real problem was the precedent of a legislative body essentially using the power of the state to scuttle a legal agreement they didn’t like. PFAS is a significant concern, but invalidating legal settlements would have long-lasting negative ramifications and create a hostile business environment for employers. The Senate tabled this bad legislation it’s unlikely to go any further, but tabled isn’t dead, so we’re keeping a close eye on it.
We started the year with 40 or more bills relating to the COVID-19 pandemic, and especially employer vaccine mandates. Many bills remain in play but the one that has BIA’s attention is HB 1210, currently being considered by Senate Health & Human Services. This bill establishes a new personal conscience exemption from vaccine mandates. Unlike other existing exemptions available to employees (religious or medical), personal conscience is impossible for employers to evaluate. Actually, any determination by an employer to grant an exemption would be taken away by HB 1210. Passing this bill could result in the loss of hundreds of millions, perhaps billions, of dollars to New Hampshire from federal Medicaid and Medicare aid to the state. It also would certainly result in increased wrongful termination litigation between employers forced to grant an exemption and employees terminated for not following the vaccine mandate. This bill is bad for employers and BIA is working overtime to see that it’s defeated in the Senate.
There’s a lot happening between now and the end of the session in May. We advise employers to keep an eye on what’s happening at the State House because legislation could pass that directly impacts how they do business in the Granite State.
Michael Skelton is president of the Business & Industry Association, New Hampshire’s statewide chamber of commerce and leading business advocate. Visit www.biaofnh.com.
This article originally appeared on Portsmouth Herald: Plenty of bills that could impact employers remain before NH Legislature