By David A. Juvet and David Creer

As the only statewide, broad-based business advocate in New Hampshire, the Business & Industry Association advocates on the waterfront of issues affecting employers — from business taxes to workplace labor regulations, from protecting the R & D tax credit to environmental compliance challenges, from health insurance cost drivers to energy rates and reliability.

This year, several bills stand out for their potential impact on employers and the state’s reputation as a welcoming place for business. One is Senate Bill 63 (SB 63), a bill to establish a legal safe harbor to protect businesses trying to recover from the coronavirus pandemic from becoming victims of unwarranted COVID-19-related litigation. As employers struggle to return to normalcy, they face the threat of lawsuits from those who claim they’ve contracted COVID-19 at a place of business (or place of worship, or school, or college campus). This, despite the enterprise’s best efforts to prevent spread of COVID-19 by following state and federal guidelines (often going beyond recommended guidelines). SB 63 does not protect bad actors, nor should it. But employers acting in good faith could easily spend $50,000 to defend against a meritless lawsuit. Such expenses could put struggling businesses or churches or schools under.

Opponents argue the bill is unneeded because no lawsuits have been filed in New Hampshire yet, although over 200 such suits have been filed across the country. Their reasoning is flawed: if opponents of safe harbor bills are correct and no lawsuits relating to COVID-19 infections are ever filed in the state, then having the law in place does no harm. But if they’re wrong, passing SB 63 now may save businesses from closing their doors permanently. We lose nothing but gain much needed protection by passing this bill now. Unfortunately, at the time of this writing, the fate of the bill is uncertain.

Another important bill is SB 61, legislation to make New Hampshire the only “Right to Work” state in the Northeast U.S. “Right to Work” means individuals cannot be compelled to join a union or pay to support it as a condition of employment. BIA doesn’t think employees at any enterprise should be forced to support a labor union if they don’t see its value. Unions should have to prove their worth every day, just like BIA, local chambers of commerce, and trade associations. Candidly, it would be great if every business in the state was forced to join BIA. Certainly, BIA’s work benefits the entire business community. Yet, because we can’t force employers to financially support our work, we labor every day to prove our value to businesses. Organized labor shouldn’t be exempt from this same requirement.

Further, most employers recognize the tremendous asset their workforce represents to them, but they’re not eager to add a layer of bureaucracy in between them. Being a Right to Work state will encourage more business growth and economic activity in New Hampshire at no cost to taxpayers. The Senate has passed this legislation and it will soon be taken up in the House.

Another bill, SB 3, would protect any employer whose federal Paycheck Protection Program loan was forgiven from being subjected to New Hampshire’s business profits tax (i.e. corporate income tax). Congress corrected this tax issue at the federal level, but the same “fix” needs to take place at the state level. That’s because our state Department of Revenue Administration has made it clear that, absent a change in state tax law, these federal loans that have been forgiven are taxable in New Hampshire. This would mean employers hardest hit by the pandemic may need to pony up as much as $130 million in taxes. BIA is working with Senate leadership through SB 3 to provide the same federal tax remedy at the state level.

Finally, there’s HB 135 which makes a bad situation worse. The bill would force businesses to connect residences and other enterprises impacted by chemical pollution to public or private water systems and pay for five years’ worth of water bills if the state Department of Environmental Services (DES) determines the business was responsible. Under HB 135, DES could assign fault and issue remedies without any adjudicative process for businesses to defend themselves. The business would be required to appeal DES’ decision before even offering their own evidence. The state would never find a person at fault in a civil suit before a full trial was conducted, so why would we do it to a business?

The outcome of these four bills will shape New Hampshire’s reputation as a state that welcomes job creation and business innovation versus all other states in the Northeast where the regulatory, tax, and legal climate seem to discourage business innovation and growth. We’ll see how the Legislature responds.

David A. Juvet is senior vice president of public policy for the Business & Industry Association. David Creer is director of public policy of BIA.

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