Employment Law Review of the 2023 Legislative Session

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA’s legal services or your municipal attorney.

We are taking a break from our ongoing series addressing common inquiries received through the NHMA Employment Law Hotline to highlight a number of the pending bills and their potential impact on public employers.  During the current legislative session, a number of labor bills that, if adopted into law, will have a significant impact on public employers. 

First, there are a number of bills seeking to modify RSA 273-A, the Public Employee Labor Relations Act.  For example:

• House Bill 150: AN ACT relative to the certification of a collective bargaining unit

Under RSA 273-A:8(I), the Public Employee Labor Relations Board (PELRB) is prohibited from certifying new bargaining unit if it would be comprised of less than ten (10) employees who share a community of interest.  HB150 proposes to modify RSA 273-A:8, I to permit bargaining units of only five (5) employees.    

The original ten (10) employee minimum was enacted in order to relieve smaller communities from the burden and expenses resulting from collective bargaining.  Select Boards in these smaller communities would need to seek guidance on collective bargaining and compliance with RSA 273-A.  Larger employers whose employees are already unionized could also be effected.  Currently unionized employers may see employees looking to break current bargaining units into smaller units.  For example, it is possible that employees in a unit consisting of both police officers and dispatchers might seek to separate into two units.  In addition, subsets of employees may look to create new bargaining units (for example, currently non-union administrative staff may seek to form a bargaining unit).

• Senate Bill 193: AN ACT relative to the obligation of collective bargaining units to negotiate in good faith

RSA 273-A:3, I currently requires employers and the exclusive representative of a certified bargaining unit to negotiate in “good faith.”  For the purpose of the law, “good faith” is defined to include meeting at reasonable times to seek an agreement and cooperating in RSA 273-A’s dispute resolution procedure if an agreement cannot be reached.  SB 193 seeks to supplement the definition of “good faith” to further require parties to “meet within 10 days after receipt of a written request from the other party to meet to bargain.”  If adopted, the law would specify that, while the parties could mutually agree to extend this first-meeting-deadline, it would not be considered bad faith negotiation for either side to refuse to extend the deadline. 

If adopted, employers, and unions, would need to be more mindful about when they initially reach out to initiate bargaining as the law will now include a requirement that the first meeting occur shortly after the initial request, unless delayed by mutual agreement.

• House Bill 410: AN ACT relative to municipality ranked list promotions

In unionized police and fire departments, it is common for a collective bargaining agreement to contain a negotiated promotion process.  The promotion process often contains some combination of testing, oral interviews, written projects, and assessment centers. Often the promotion process provides that names of the top scorers are presented to the Chief, who then has final authority to rank those top scorers.  HB 410 seeks to eliminate a Chief’s ability to determine the final ranking and would make a failure to make promotions in accordance with a promotional process scoring list an unfair labor practice.  Specifically, it would be an unfair labor practice for an employer “that uses a ranked list of public employees eligible for promotion to fail to promote in the order on the list, except that the public employer may pass over an eligible candidate on the list for promotion only one time in the life of the promotional list.”  Additionally, the proposed amendment goes on to expressly state that, “the criteria used to create the ranked list shall be subject to the collective bargaining agreement in effect at the time the public employer creates the list.”  The scope of this law is limited to towns and cities, but not to other public employers (e.g. schools) generally covered by RSA 273-A.  The net effect of the change would be to negate the employer’s ability to exercise their professional judgement to assure that only the best qualified candidates are promoted. 

If adopted, towns and cities that do not currently have a negotiated ranked-choice promotion process would be wise to think carefully about agreeing to one as doing so would open the door to potential unfair labor practice charges.  For those town and city employers that have a currently negotiated ranked-choice promotion process, it would be prudent to review ensure that the eligibility criteria and process is clear before such lists are created to avoid potential unfair labor practices.

• House Bill 241: AN ACT relative to the opportunity of school district employees representing the collective bargaining unit to meet with the public employer as part of collective bargaining negotiations

RSA 273-A:11, II currently requires employers to provide employees “who act as representatives of the bargaining unit” with a “reasonable opportunity” to meet with the employer without loss of compensation or benefits.  The PELRB has interpreted this provision to prohibit employers from categorically refusing to meet with employees for the purpose of collective bargaining during employees’ regular workday.  In school districts, employees often seek to schedule bargaining sessions at or near the end of their regular workday, so that they do not have the inconvenience of going home and then returning to a school facility in order to participate in negotiations.  However, scheduling negotiations in the late afternoon could make it difficult for school board members to attend, as their work hours in non-school employment are often the traditional 9-5.  It appears that the intent of this proposed amendment is to make it easier for school board members to participate in collective bargaining without disrupting their workdays.  HB 241, if enacted, would make clear that it is not an unfair labor practice for school districts to refuse to schedule negotiations sessions during the 9-5 window. 

Second, there are a set of bills seeking to modify general employment laws that would impact both private and public workplaces.  For example:

• House Bill 118-FN: AN ACT prohibiting employers from engaging in certain anti-union activities.

RSA 275:1 currently prohibits persons from coercing or compelling individuals, as a condition of securing or continuing employment, to agree not to join a labor organization, and from making such attempts.  HB 118-FN seeks to establish a new section, RSA 275:1-a, that would further prohibit employers from engaging in certain “anti-union activities.”  Specifically, if adopted, the law would prohibit employers from “requir[ing] an employee to attend or participate in anti-union training of any kind, including requiring or coercing an employee to view a video that casts unions in a negative light.”  Violations of this prohibition will be subject to a fine of $10,000 per employee.  If adopted, this law could be challenged on grounds that the governance of employer activity during union organizing campaigns is pre-empted, as to private sector employees, by the National Labor Relations Act and, as to public sector employees, by RSA 273-A.

• House Bill 74-FN: AN ACT relative to an employee's unused earned time.

Under current New Hampshire law, employers are not required to provide employees with paid time off or to pay employees, upon separation from employment, for the value of any accrued, unused leave allowed under employer policies.   Employers are only obligated to pay for unused leave time if they have established a policy or practice to do so, or where they have agreed to make such payments through collective bargaining.  HB 74-FN would establish that, for employers with at least 15 employees that choose to provide accrued leave time, such accrued leave time is “compensation” and thus constitutes “wages due” to employees.  It further seeks to amend RSA 275:43 to require that “an employee who leaves in good standing, or whose termination is the result of a layoff, . . . be paid for unused earned time no later than the next regular pay period.”  The term “earned time” as used in HB 74-FN encompasses "earned time," "vacation" or "vacation time," and "paid time off,” but does not include “sick days” or “sick time.”

• House Bill 48-FN: AN ACT relative to employee protections from COVID-19 in the workplace.

HB 48-FN seeks to create a new category of employees that are protected from discrimination as a matter of law.  Specifically, this bill seeks to create a new subsection, RSA 275:41-e, stating: “Employee COVID-19 Rights. An employee shall have the right to be vaccinated against COVID-19 and the right to use personal protective equipment such as face masks and face shields while employed in the workplace. No employer shall discriminate in any way against an employee based on the employee exercising his or her rights under this section.”  This bill appears to be a response to certain private sector employers that threatened employee with the loss of employment if they were vaccinated and prohibited the wearing of face masks and shields. 

Please note that this information is current as of early February 2023 and does constitute an exclusive list of all proposed legislation that may impact workplaces.  If you are concerned about a certain bill, you are encouraged to check its current status on the General Court’s website (http://gencourt.state.nh.us/), or contact NHMA or your local elected officials.