HB 663-FN – AS INTRODUCED
2009 SESSION
08/09
HOUSE BILL 663-FN
AN ACT relative to working families’ flexibility.
SPONSORS: Rep. Gile, Merr 10; Rep. Skinder, Sull 1; Rep. Pilliod, Belk 5; Rep. R. Holden, Hills 7; Sen. Lasky, Dist 13; Sen. Gilmour, Dist 12
COMMITTEE: Labor, Industrial and Rehabilitative Services
This bill creates a process for employees to request flexibility regarding certain conditions of employment.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
09-0746
08/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT relative to working families’ flexibility.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Working Families’ Flexibility Act. Amend RSA 275 by inserting after section 69 the following new subdivision:
Working Families’ Flexibility Act
275:70 Definitions. In this subdivision:
I. “Commissioner” means the commissioner of labor.
II. “Department” means the department of labor.
III. “Employer” means an employer under RSA 275:4, I who employs 15 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year; and includes:
(a) Any person who acts, directly or indirectly, in the interest of such an employer to any of the employees of such employer.
(b) Any successor in interest of such an employer.
(c) An agency described in clause (iii) or (iv) of subparagraph (A) of section 101(4) of the Family and Medical Leave Act of 1993 (29 U.S.C. section 2611(4)), to which subparagraph (B) of such section shall apply.
275:71 Right to Request Flexible Work Terms.
I. An employee may apply to his or her employer for a change in the employee’s terms or conditions of employment if the change relates to:
(a) The number of hours the employee is required to work;
(b) The times when the employee is required to work; or
(c) Where the employee is required to work.
II. An application submitted to the employer under this section shall:
(a) State that the application is an application described in paragraph I;
(b) Specify the change applied for and the date on which the employee requests that the change becomes effective; and
(c) Explain what effect, if any, the employee thinks the change applied for would have on the employer and how any such effect may be dealt with.
III. If an employee, who has submitted an application under this section to an employer, submits a further application under this section to the same employer before the end of the period of 12 months beginning with the date on which the previous application was submitted, that further application shall not be considered by the employer under RSA 275:72.
275:72 Employer’s Duties. An employer to whom an employee submits an application shall consider the application in accordance with the following:
I. The employer and the employee shall hold a meeting to discuss the application submitted under RSA 275:71 within 14 days after the date of submission to the employer;
II. The employer shall give the employee a written decision regarding the application within 14 days after the date of the meeting described in paragraph I;
III. A written decision under paragraph II to reject the application shall state the grounds for the decision, including whether those grounds included:
(a) The identifiable cost of the change in a term or condition of employment requested in the application, including the costs of loss of productivity, retraining or hiring employees, or transferring employees from one facility to another facility.
(b) The overall financial resources involved.
(c) For an employer with multiple facilities, the geographic separateness or administrative or fiscal relationship of the facilities.
(d) The effect of the change on the employer’s ability to meet customer demand.
(e) Other factors specified in rules adopted by the commissioner.
IV. If the employer rejects the employee’s application, the employer may propose, in writing, an alternative change to the employee’s hours, times, and place of work.
V. If the employee is dissatisfied with the employers decision under paragraph II and the alternative described in paragraph IV, the employee has the right to request reconsideration of the decision within 14 days after the later of:
(a) The date on which the employer gives the employee the decision under paragraph II; or
(b) If applicable, the date on which the employer proposes the alternative described in paragraph IV.
VI. Rules adopted by the commissioner relative to procedures for exercising the right to request reconsideration described in paragraph V, including procedures requiring the employee to set out the grounds for reconsideration, and including any inaccuracies or misstatements that the employee contends were in the employer’s decision.
VII. The decision under paragraph II shall include such information as the regulations shall specify relating to the right to request reconsideration under paragraph V.
VIII. The employer and the employee shall hold a meeting to discuss the request for reconsideration described in paragraph V within 14 days after the date on which the employee gives notice of the request for reconsideration to the employer.
IX. The employer shall give the employee a written decision regarding a request for reconsideration within 14 days after the date of the meeting described in paragraph VIII.
X. A decision under paragraph IV to deny the request for reconsideration shall state the grounds for the decision, including whether those grounds included the factors described in paragraph III.
XI. A statement made under paragraph III or IX shall contain a sufficient explanation of the grounds for the decision involved.
XII. The employee shall have a right to be accompanied at meetings described in paragraph I or VIII by a representative of the employee’s choosing with such qualifications as the rules of the commissioner shall specify; and
XIII. If such a representative of the employee’s choosing is not available to attend a meeting described in paragraph I or VIII, the meeting shall be postponed;
XIV. The employer shall make, keep, and preserve records pertaining to compliance with this subdivision in accordance with rules adopted by the commissioner.
275:73 Rulemaking. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to:
I. The form of applications submitted under this subdivision.
II. Procedures for submission of applications.
III. Procedures necessary under RSA 275:72.
IV. Procedures for objections to orders, notice, and hearing prior to the imposition of an administrative fine under RSA 275:75.
V. Standards for adequate record keeping by employees under this subdivision.
275:74 Prohibited Acts.
I. It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this subdivision.
II. It shall be unlawful for any employer to discharge or in any other manner discriminate against, including retaliating against, any individual because such individual:
(a) Has submitted, or attempted to submit, an application under RSA 275:72;
(b) Has filed an action, or has instituted or caused to be instituted any proceeding, under or related to this subdivision;
(c) Has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this subdivision;
(d) Has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this subdivision;
(e) Has opposed any practice made unlawful by this subdivision; or
(f) Has in any other way exercised or attempted to exercise any right provided under this subdivision.
275:75 Enforcement; Penalties.
I. An employee who is affected by a violation of this subdivision may make a complaint to the commissioner. The commissioner shall investigate the complaint and may issue an order making determinations, assess penalties, and provide relief as provided in this subdivision.
II. An employer or employee objecting to an order may request an administrative hearing concerning the order from the commissioner within 60 days of the issuance of an order. After 60 days the order shall become final.
III. Any employer found by the commissioner to have violated this subdivision shall be subject to a fine of no more than $1,000 for each violation.
IV. Any employer found by the commissioner to have violated this subdivision may be ordered by the commissioner to reinstate the affected employee and award him or her back pay and change the terms or conditions of his or her employment.
275:76 Rights Retained by Employees. Nothing in this subdivision shall be considered to diminish the rights, privileges, or remedies of any employee under any state or federal law, or under a collective bargaining agreement.
2 Effective Date. This act shall take effect January 1, 2010.
LBAO
09-0746
Revised 01/29/09
HB 663 FISCAL NOTE
AN ACT relative to working families’ flexibility.
FISCAL IMPACT:
The Department of Labor, the Judicial Branch, the New Hampshire Association of Counties and the New Hampshire Municipal Association state this bill will increase state, county, and local expenditures by an indeterminable amount in FY 2010 and each year thereafter. This bill will have no fiscal impact on state, county or local revenues.
METHODOLOGY:
This bill creates a process for employees to request flexibility regarding certain conditions of employment. The Department of Labor states this bill will increase state expenditures by the costs associated with the development and implementation of a formal process to be used for applying for flexible working conditions. Additionally, the Department notes that although there is currently a process in place for filing complaints, holding administrative hearings, and administering civil penalties; the increased demands, and the increased costs associated with the increased demands, resulting from the proposed legislation will further increase state expenditures by an indeterminable amount.
The potential fiscal impact of the proposed legislation on the Judicial Branch is a result of the enforcement and penalty provisions contained within the legislation. Although the enforcement and penalty provisions contained within the proposed legislation call for administrative action by the Department of Labor; the Branch notes that the possibility exists that any such actions taken could potentially be appealed to the Supreme Court. The Branch states it can not estimate how many such appeals would be made but recognizes that even one such appeal accepted for review by the Supreme Court could result in an increase in state expenditures in excess of $10,000.
The New Hampshire Association of Counties states this bill will increase county expenditures by an indeterminable amount as a result of the increased administrative requirements involved with the application for and response to the application for flexible working conditions.
The New Hampshire Municipal Association states this bill will increase local expenditures by an indeterminable amount as a result of the increased administrative requirements involved with the application for and response to the application for flexible working conditions.
The Department of Administrative Services states the proposed legislation would not apply to state employees and therefore would have no fiscal impact on the Department.
This bill does not contain an appropriation.