State committee seeks input from business leaders on areas for possible reform
(Concord) – At a hearing today of the governor’s Regulatory Reform Steering Committee, the president of the Business and Industry Association, New Hampshire’s statewide chamber of commerce, said New Hampshire’s regulatory climate is not always “business-friendly.” Jim Roche joined representatives from several industries and small businesses to testify.
Mr. Roche also provided a list of a few of the regulations viewed as challenging by BIA members. These included environmental & labor regulations. His comments and examples are below.
Mr. Chairman and members of the New Hampshire Regulatory Reform Steering Committee, my name is Jim Roche. I am President of the Business & Industry Association, New Hampshire’s statewide chamber of commerce and leading business advocate. I am here this morning to outline the perspective of our members and New Hampshire’s business community on the impact that overly burdensome and/or overly prescriptive regulations can have on employers, job creators and the New Hampshire economy in general.
New Hampshire’s regulatory climate is often cited by many BIA members as not as “business friendly” as desired. National studies conducted by organizations like Forbes and the Small Business and Entrepreneurship Council rank New Hampshire lower than many other states when measuring our regulatory climate. To site one annual study conducted by Forbes, Inc. from earlier this year, New Hampshire was ranked 33rd out of 50 states in terms of its regulatory environment, ahead of other New England states, but well behind many others states across the country, including states that New Hampshire competes with for high paying manufacturing and technology jobs like Virginia (ranked 3rd), North and South Carolina (ranked 7th and 10th best respectively), and Texas (ranked 25th best).
That’s in part why BIA organized and hosted a roundtable discussion last month with commissioners from state agencies that most often interact with the business community (NH Dept. of Environmental Services, NH Dept. of Employment Security, NH Dept. of Labor, NH Dept. of Business and Economic Affairs). The discussion was robust and productive, but really just one step toward improving the regulatory climate in our state.
Much of the discussion at that roundtable focused on labor/employment and environmental regulations and statutes. I have attached to my written testimony a document we sent to Commissioner Caswell following that discussion outlining some of the problematic regulations and statutes frequently mentioned by our members as affecting their operations. In some cases the regulation may be vague or confusing, in other cases the regulation may conflict or supersede federal regulations, and in some cases, the regulations are out-of-date and no longer necessary, or do not reflect up-to-date technologies (like email or other electronic forms of communication).
I am familiar with many of the regulations/statutes that are provided as examples, however, many are very complex and may require more focused attention than is available today. BIA and our members are ready to work with this steering committee to make positive improvements to New Hampshire’s regulatory environment.
EXAMPLES OF BURDENSOME REGULATIONS
Labor & Employment Regulations:
• Employers Guide to Workers Compensation (https://www.nh.gov/labor/documents/employers-guide.pdf)
First Aid Log – states that First Aid is defined as any one time treatment that generated a bill less than $2000 and resulted in no lost time. These first aid only injuries must be reported to the Labor Department on the employer's first report of occupational injury or disease form.
Employer's first report of injury or occupational disease form - in the second paragraph it states, occasionally an injury that requires only common first aid treatment at the time of injury will later require more extensive medical attention. In these cases, the injury becomes recordable at the time that the employer learns of the additional medical treatment.
This is very confusing to employers as it is not clear if the first report is required for first aid type injuries. I believe the original intent was to allow an employer to take care of the injured worker on their own either by paying for the treatment to a third-party or by providing an occupational health nurse and not having to fill out any additional forms and send them up to the Department of Labor. But when you read this documentation from the Department of Labor it very can using as to whether or not we must fill out the form at the time of injury.
More and more employers are turning towards electronic time-keeping systems, and yet the law still remains grounded in paper records. For example, there is the requirement that an employee must initial any changes made to the record; which requires someone to print out a hard copy of the record. At the very least, there needs to be better guidance on what the Department considers an appropriate electronic signature by employees on time records and notices of pay rates and fringe benefits.
• Salaried Employees
New Hampshire has one of the most restrictive laws in the country on allowable deductions from salary and goes beyond the Federal law in many respects. In fact, based on the Department's regulations, salaried employees have unlimited sick time in New Hampshire, which makes it difficult to manage excessive absenteeism by salaried employees.
It would be helpful to have New Hampshire's law be more in line with the Federal Fair Labor Standards Act (FLSA) so employers can be less confused about when they can make appropriate deductions from a salaried employee’s pay. For example, the U.S. Department of Labor’s regulations under the FLSA changed in 2004 to allow employers to impose unpaid suspensions for infractions of workplace conduct rules (prior to 2004, such suspensions could only be for safety violations under the USDOL’s rules). However, New Hampshire’s regulations have not caught up to this development. LAB 803.02 only allows unpaid suspensions for safety violations. Further, RSA 275:43-b, I(b) imposes additional requirements that the suspension must not be imposed unless the employee is provided advance notice at least 1 pay period in advance pursuant to a written progressive disciplinary policy. These technical requirements make it very challenging, and even impossible, to effectively use unpaid suspensions as a form of discipline for serious misconduct.
• 2-Hour Rule
The NH Department of Labor’s regulations under RSA 275:43-a previously said that employees who are hired and report to work with the expectation that they will work less than 2 hours and are notified in advance are not required to be paid the 2-hour minimum required under RSA 275:43-a. This was consistent with the case decision involving exercise instructors that allowed this exemption. However, the Department’s rule was changed during the last round of regulatory changes to now state that RSA 275:43-a only applies to employees who are hired for positions that consistently require that they work less than 2 hours per day and are so notified at time of hire.
This new language poses several problems:
(1) This very narrow exemption hurts an important industry – elder and disabled home care – and means that a home visit of less than 2 hours (which is not uncommon in home care industry) might have to cost the elderly or disabled person more because the employer has to cover its cost of paying the 2-hour minimum if the employee has no other clients that day.
(2) The Department’s interpretation of RSA 275:43-a and the rule is that the job position must consist of only work shifts of less than 2 hours. An employer could read the regulation’s use of the term “consistently” to mean that it is permissible to not pay the 2-hour minimum if the employee consistently works less than 2 hours on certain days of the week (such as Tuesdays and Thursdays), but works more than 2 hours on other days of the week. However, the Department’s interpretation is that the position must consist of only daily shifts of less than 2 hours, so even with best intentions, the employer would be in violation and owe back wages.
(3) The language of the exemption in 803.03(i) only applies at time of hire. What if the employee is hired to work longer shifts, and then the job is changed or the employee requests to work shorter shifts sometime after initial hire? Again, this makes it difficult for elder and disabled home care situations, when the needs of the elderly/disabled person change, requiring changes in the amount of home care services needed. LAB 803.03(j) provides an exemption specifically for health care employees who service physically or mentally infirmed clients, but only if it is part of a community based outreach program, the employee initiates the change (not the employer), and the employee is informed in writing of this job requirement at the time of hire. This very narrow exception would not include the large number of privately owned and franchised home health care organizations in the state, nor does it allow for changed circumstances after hire.
We understand the importance of maintaining the protections under RSA 275:43-a, but there should be a balance with the nature of certain jobs. As long as an employee understands that the position may have a consistent amount of shifts of less than 2 hours, and the employee agrees to that, there should be some leeway for employers who are trying to meet the varied needs of their clients (usually elderly or disabled) and create consistent schedules for employees.
• Definition of Employee
There should be one consistent definition of independent contractor under NH law. From the employer's perspective, it is highly confusing, overly restrictive and illogical that there are different standards. It also results in uncertainty because, even if a business meets the definition under RSA 275, it is still possible that Employment Security could find that the relationship is misclassified.
• Currently, NH has the following rules (http://gencourt.state.nh.us/rules/state_agencies/he-p4040-4061.html) on the books regarding the registration of “machines which produce ionizing radiation”:
He-P 4040.06 Exemptions.
(a) Any electronic equipment that produces ionizing radiation incidental to its operation shall be exempt from the requirements of this part provided that the dose equivalent rate averaged over an area of 10 square centimeters does not exceed 5 µSv (0.5 millirem) per hour at 5 centimeters from any accessible surface of such equipment.
There are other states (e.g. TX and NY) that consider devices like SEMs to be “low threat” and hence not required for registration, to the extent they are shown not to “leak” as in He-P 4040.06 (a).
Nonetheless, the state of NH recently added this specific exemption to the exemption:
(h) The following shall not be exempt:
(2) Electron microscopes;
• Reconcile the Federal and State Hazardous Waste Generator Status levels. Revise Rules to align with Federal CFR.
o PART Env-Hw 503 (GENERATOR CLASSIFICATIONS) defines two classification of HW generator, Small Quantity generators (SQG) and Full Quantity generators (FQG).
o 40 CFR 262.34 (Accumulation Time), Subparts (b) through (h) define HW generator classifications of conditionally exempt small quantity generator (CESQG, equivalent to a NH SQG), small quantity generator (equivalent to a NH FQG)and large quantity generator (equivalent to a NH FQG)
• Eliminate NH HW Limited HW treatment permit Rules Federal regulations exempt these activities from regulation.
o Env Hw 304.04 (Limited Permits) defines need for permit and defines specific requirements.
o 40 CFR 262 . 40 CFR 270.1(c)(2) specifically exempts certain treatment operations from hazardous waste regulation without need for a permit to treat providing they meet applicable generator requirements and storage management standards, including 40 CFR 262.34, referencing 40 CFR 264 and 265.
• Eliminate Additional Rules that restrict the recycling exemptions granted under Federal regulations.
o Env-Hw 800 (Requirements for Recycling of Hazardous Wastes). Eliminate “used oil” as a NH Hazardous waste. Evaluate rules for State requirements beyond those of Federal requirements.
o 40 CFR 262.4 (Exclusions) defines specific exemptions and exclusions from materials as waste, solid waste or hazardous waste.
• Align NH HW Rules with Federal Regulations regarding the management and disposal of solvent contaminated wipes and rags.
o Env-Hw 401.03(b)(28) places limits and additional controls beyond the Federal exemption for solvent contaminated wipes and rags.
o 40 CFR 261.4(b)(18) exempts solvent (except for trichloroethylene) contaminated wipes from regulation as hazardous waste.
• Streamline the Hazardous waste coordinator program. HW coordinators only required for Federal Large quantity generators. [This streamline proposal exceeds Federal requirements, but is justified based on the historic DES HW inspection record of generator violations]
o Env-Hw 509.04 (Certified Hazardous Waste Coordinator Requirements) requires a listed coordinator for all NH Full quantity HW generators (i.e., Federal large and small quantity generators).
o 40 CFR 262.34 requires that the generator “thoroughly understand” and 40 CFR 265.16 requires training for all handers of hazardous waste. There is no equivalent certification to the NH Hazardous Waste Coordinator program.
About the BIA:
The Business and Industry Association is New Hampshire’s statewide chamber of commerce and leading business advocate. The BIA represents more than 400 members in a variety of industries, including advanced manufacturing, high technology, professional services, financial services, health care, hospitality and tourism, public utilities, higher education and insurance. Member firms employ 89,000 people throughout the state, which represents one in seven jobs, and contribute $4.5 billion annually to the state’s economy. Through advocacy with state legislators and regulators, the BIA works to promote a healthy business climate and robust economic future for New Hampshire. For more information about the BIA, visit www.BIAofNH.com.