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Brad MacDougall

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State Readies New Rules on Background Checks

Posted by Brad MacDougall on Apr 13, 2017 10:55:07 AM

Editor’s note:  The following blog was written by Jean M. Wilson, Barry J. Miller, and Alison Silveira of Seyfarth Shaw, which is a member of AIM’s HR-Labor and Employment Law Committee. 

The Massachusetts legislature passed sweeping reform in May 2012 to the commonwealth’s Criminal Offender Record Information (CORI) law, which regulates the ability of employers to conduct criminal background checks.

ScalesofJusticeVerySmall.jpgNow, prompted by Governor Charlie Baker’s regulatory reform initiative, the Department of Criminal Justice Information Services (DCJIS) has new rules for the CORI law.  Several of these changes will require employers to alter their approach to criminal history checks:

  1. Who is an Employee? The regulations expand the definition of employee to include not only traditional employees and volunteers, but also contractors, subcontractors, vendors, and special state, county or municipal employees. DCJIS has, in effect, broadened the definition of employee well beyond its traditional meaning, and in a manner that is at odds with the definition of this term under other state and federal laws, leading to possible uncertainty for employers

  2. What is CORI? The prior regulations did not define “Criminal Offender Record Information,” beyond a list of examples of information included or excluded from the system.   The regulations now define CORI, but the definition leaves uncertainty as to what information, outside of that specifically provided by DCJIS, is inlcuded.  The regulations also now specifically exclude from the definition of CORI information related to criminal proceedings that were initiated against an individual before the individual turned 18, unless the individual is adjudicated as an adult.  Prior to the revisions, this threshold was 17.

  3. “Need to Know” List and New iCORI Agency Agreement - The revised regulations require employers to enter into an iCORI Agency Agreement prior to obtaining and/or renewing electronic access to the iCORI system. The iCORI Agency Agreement will, at a minimum, include the employer’s representation that:  (1) it will comply with the CORI laws and regulations; (2) it will maintain an up-to-date “need to know” list of staff that the employer has authorized to request, receive or review CORI information and to provide all staff on the “need to know” list with all CORI training materials; (3) it will only request the level of CORI access authorized under statute or by the DCJIS; and (4) it will be liable for any violations of the CORI law or regulations, and that individual users of the employer’s iCORI account may also be liable for violations of the CORI law or regulations.  The DCJIS has not yet issued the iCORI Agency Agreement. 

  4. CORI Acknowledgment Forms - DCJIS has made several changes to the regulations that affect the collection, use and destruction of CORI Acknowledgment Forms.

  5. Storing CORI in the Cloud - DCJIS now permits employers to store CORI using cloud storage methods.  DCJIS requires employers using cloud storage to have a written agreement with the provider and that the storage method provide for encryption and password protection.

  6. Additional Information for Pre-Adverse Action Notices - Employers who contemplate adverse action against an employee because of information in a CORI report obtained through DCJIS are currently required to provide the subject of that report with certain information, including identifying the information in the report that is the basis for potential adverse action. 

  7. Obtaining CORI from Background Screening Companies: The regulations continue to allow background screening companies to obtain CORI on behalf of employers, but maintain the restrictions on the storage of this information that led many background screening companies to cease providing CORI.  Specifically, the regulations continue to prohibit background screening companies from electronically or physically storing CORI results, unless the background screening company is authorized by the employer to act as the decision maker. 

Employers should work with their legal counsel and background check providers to ensure that their procedures and forms comply with these new changes. 

Massachusetts businesses should also be aware that there are legislative proposals regarding Criminal Justice reform and other specific proposals that would impact Criminal Offender Record Information (CORI) laws. 

Want to learn more about the new CORI regulations or the pending legislation? Please contact Brad MacDougall, Vice President of Government Affairs at AIM.  Based on interest, AIM may host a webinar to provide members with greater information.

Topics: Employment Law, Massachusetts employers, CORI

AIM, Advocates Reach Deal on Protections for Pregnant Workers

Posted by Brad MacDougall on Mar 1, 2017 3:56:22 PM

Associated Industries of Massachusetts has reached agreement with the advocacy group MotherWoman on compromise legislation to extend employment protection to pregnant workers in Massachusetts.
Pregnant2.jpg
The contours of the agreement were established late last year and affirmed recently when Senator Joan Lovely of Salem and Representative David Rogers of Belmont refiled the compromise bill.

The Pregnant Workers Fairness Act would require employers to make reasonable workplace accommodations for pregnant employees — more frequent or longer breaks, temporary transfer to a less strenuous or hazardous position, a modified work schedule, or seating for those whose jobs require extended standing. Businesses would not have to provide those accommodations if doing so would create an undue business hardship, defined as something “requiring significant difficulty or expense.”

AIM opposed early versions of the bill during the 2015-2016 legislative session because of concern among employers that the legislation provided an applicant or employee with unlimited power to reject multiple and reasonable offers of accommodation by an employer. The compromise bill addresses that concern and others

Richard C. Lord, president and CEO of AIM, said “AIM was pleased to work together respectfully on this bill with Senator Lovely, former Representative Ellen Story, and advocates from MotherWoman.  It is easy to confuse opposition to a draft of a bill with opposition to the issue itself. AIM is always willing to work with those seeking honest and effective compromise. That is exactly what happened with this legislation.”

Other AIM concerns addressed by the bill:

  • Provides clarity regarding definitions and terms related to current employees in need of accommodations related to pregnancy.
  • Aligns state and federal laws regarding reasonable accommodation as it relates to the essential functions of the job.
  • Provides flexibility rather than a mandating specific types of accommodations for employers and employees.
  • Provides a reasonable mechanism for employees and the employer to achieve a reasonable accommodation by engaging in a defined process, eliminating a concern by businesses that an employee could reject multiple reasonable offers of accommodation.
  • Adds language allowing the employer to evaluate undue hardship of an accommodation and the ability of employee to perform the essential functions of the job as it relates to an employer’s program, enterprise or business.
  • Provides opportunity for an employer to request documentation for certain cases to ensure that accommodations are reasonable for both employees and employers.
  • Limits provisions to current employees instead of employees and job applicants.
  • Reduces unnecessary burdens and allows for electronic or other means other than a “poster” for notifying employees.
  • Allows for certain accommodations to be either paid or unpaid.

MotherWoman said in a statement: “We are excited that we've reached agreement on how to level the playing field for the hard-working women of Massachusetts.

"Through a great collaborative effort among legislative sponsors, Rep. Dave Rogers, Rep. Ellen Story and Sen. Joan Lovely, our dedicated legal advocates at A Better Balance, and the team at AIM — who were so generous with their time and their attention to detail — we have a better proposal, which led to the refiling of this bill. It’s an important support for moms, children and families, and it makes good sense for both employers and employees."

The compromise faces a long process of legislative consideration. Senator Lovely expects the refiled bill will go before the Joint Committee on Labor and Workforce Development and its new chairs - Representative Paul Brodeur of Melrose and Senator Jason M. Lewis of Winchester - with a hearing scheduled later this year.

AIM and MotherWoman expect to support the measure at that time and hope that the bill will be considered by the full Legislature later in the session and sent to the governor for his approval.

Topics: Massachusetts Legislature, Employment Law

Legislature Approves Compromise Wage-Equity Bill

Posted by Brad MacDougall on Jul 21, 2016 3:20:57 PM

The Massachusetts Legislature unanimously passed on Saturday a compromise pay-equity bill hammered out among House leaders, the attorney general and the business community. The measure now goes to Governor Charlie Baker.

StateHouse-resized-600.png“The business community is gratified that legislative leaders are moving forward with a bill that ensures fair compensation for all workers while allowing employers to attract and retain skilled employees,” said Richard C. Lord, President and Chief Executive Officer of AIM.

“House Speaker Robert DeLeo and his leadership team deserve tremendous credit for reaching out directly to AIM and really listening to the concerns of employers.”

The legislation is intended to promote salary transparency, limit upfront questions to job candidates about salary history, and encourage companies to conduct reviews to detect pay disparities. It explicitly recognizes legitimate market forces such as performance and the competitive landscape for certain skills that cause pay differences among employees. 

That recognition will allow employers to continue to reward star performers and to compete in the white-hot market for workers with skills such as computer programming, engineering, advanced manufacturing and biosciences.

The bill states that “no employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work.” Wage differentials are permitted, however, based upon:

  • a system that rewards seniority with the employer
  • a merit system
  • a system that measures earnings by quantity or quality of production, sales, or revenue
  • the geographic location in which a job is performed
  • education, training or experience to the extent such factors are reasonably related to the particular job in question; or
  • travel, if the travel is a regular and necessary condition of the particular job.

There were several additional provisions that persuaded AIM and its 4,000 member employers to support the House bill:

  • It provides a three-year affirmative defense from liability to employers who conduct a self-evaluation of their pay practices in good faith and can demonstrate that reasonable progress has been made towards eliminating wage differentials based on gender for comparable work. The self-evaluation may be of the employer’s own design, so long as it is reasonable in detail and scope in light of the size of the employer, or may be consistent with standard templates or forms issued by the attorney general.
  • Affirms the ability of employers to protect the confidential information about employee wages should another employee seek that information.

John Regan, Executive Vice President of Government Affairs for AIM, credited DeLeo, Speaker Pro Temp Patricia Haddad of Somerset, House Ways & Means Committee Chairman Brian Dempsey of Haverhill and Attorney General Healey for developing a workable compromise on pay equity.

The law would take effect on July 1, 2018.

 

Topics: Employment Law, Pay Equity

Senate Takes Step Back on Non-Competes

Posted by Brad MacDougall on Jul 15, 2016 11:33:12 AM

The Massachusetts Senate took a dramatic step backward yesterday on non-compete agreements, passing Draconian restrictions that would effectively end of the use of the documents in the Bay State.

ScalesofJusticeVerySmall.jpgThe Senate passed by voice vote a measure that would limit non-compete agreements to three months and require employers to pay the full salary of the former employee during the restricted period. The bill would exempt anyone earning $130,000 or less from non-competes.

The Senate measure stands in marked contrast to a compromise version passed by the House in late June that allows one-year non-competes and not require companies that compensate employees at the time they sign non-competes to pay them again during the restricted period.

Lawmakers will have to reconcile all those differences before the session ends on July 31 if a non-compete bill is to become law. 

“Employers support the House bill, period,” said John Regan, Executive Vice President of Government Affairs at AIM.

“House leaders worked with people on all sides of the issue and came up with a reasonable compromise that protects the rights of both employers and workers. The idea that you would now compromise a compromise makes no sense.”

Employers believe selective use of non-competes protects the significant investments that allow their companies to be global leaders in their industries and to create jobs in the commonwealth.  The compromise legislation begins to recognize that Massachusetts employers need flexibility and legal options to protect intellectual property. 

AIM continues to maintain that there is no evidence that the use of non-compete agreements harms Massachusetts’ position as a globally recognized leader in innovation. In fact, Securities and Exchange Commission (SEC) filings indicate that the well-heeled venture capitalists pushing to limit non-competes use such agreements themselves.

Employers have articulated several provisions that would be required for them to support a bill limiting non-competes:

  • Minimum one-year duration.
  • A “garden leave” provision that requires the employer to pay 50% of the employees’ prorated salary during the restricted period, or other mutually-agreed upon compensation.
  • Maintaining and clarifying the ability of a court to reform or alter non-compete contracts to ensure that both parties are treated fairly.
  • Those subject to non-compete agreements would have to be given prior notice of the need to sign the agreement, as well as the opportunity to consult with legal counsel.
  • The non-compete would extend to a second year should an employee unlawfully take property belonging to the employer, as included in the House version.

 

Topics: Employment Law, Non-Compete Agreements

AIM Backs Compromise Wage-Equity Bill

Posted by Brad MacDougall on Jul 13, 2016 1:38:28 PM

Associated Industries of Massachusetts announced that it supports compromise pay-equity legislation passed by the House of Representatives on Thursday.

Fourpeople.jpgThe bill recommended late yesterday by the House Ways and Means Committee follows weeks of intensive negotiations among AIM, House leaders at Attorney General Maura Healey. AIM unequivocally supports pay equity, but opposed previous versions of the measure that would have limited the ability of employers to attract and retain skilled employees.

“The compromise ensures that workers will be fairly compensated without regard to gender but instead according to the value they bring to the business enterprise,” said Richard C. Lord, President and Chief Executive Officer of AIM.

“The Board of Directors of AIM very much wanted to support a pay-equity initiative, so we rolled up our sleeves and worked collaboratively with the House and the Attorney General to develop to ensure that the bill worked both for employees and employers.”

The legislation is intended to promote salary transparency, limit upfront questions to job candidates about salary history, and encourage companies to conduct reviews to detect pay disparities. Unlike the overly proscriptive bill passed by the Senate in April, the House version explicitly recognizes legitimate market forces such as performance and the competitive landscape for certain skills that cause pay differences among employees. 

That recognition will allow employers to continue to reward star performers and to compete in the white-hot market for workers with skills such as computer programming, engineering, advanced manufacturing and biosciences.

The bill states that “no employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work.” Wage differentials are permitted, however, based upon:

  • a system that rewards seniority with the employer
  • a merit system
  • a system that measures earnings by quantity or quality of production, sales, or revenue
  • the geographic location in which a job is performed
  • education, training or experience to the extent such factors are reasonably related to the particular job in question; or
  • travel, if the travel is a regular and necessary condition of the particular job.

There were several additional provisions that persuaded AIM and its 4,500 member employers to support the House bill:

  • It provides a three-year affirmative defense from liability to employers who conduct a self-evaluation of their pay practices in good faith and can demonstrate that reasonable progress has been made towards eliminating wage differentials based on gender for comparable work. The self-evaluation may be of the employer’s own design, so long as it is reasonable in detail and scope in light of the size of the employer, or may be consistent with standard templates or forms issued by the attorney general.
  • It eliminates an outright ban on salary-history questions contained in the Senate version and replaces it with language that allows an employee to voluntary disclose salary information and then allows an employer to ask the employee to confirm prior wages after an offer has been made.
  • Affirms the ability of employers to protect the confidential information about employee wages should another employee seek that information.

“The bill is not perfect, but that is the nature of compromise and negotiation,” Lord said. “But the bottom line is that employers committed to hiring the best people regardless of gender may continue to design their compensation programs based upon market conditions.

AIM and its member employers are committed to providing fair compensation to employees according to the value and success they bring to our enterprises. In an economy where skilled workers remain at a premium, any company that does not value all of its employees equally is unlikely to be around very long.

John Regan, Executive Vice President of Government Affairs for AIM, credited House Speaker Robert DeLeo, Speaker Pro Temp Patricia Haddad of Somerset, House Ways & Means Committee Chairman Brian Dempsey of Haverhill and Attorney General Healey for listening to the concerns of employers.

“We continue to believe that the best long-term strategy to achieve pay equity in the workplace is to ensure that both women and men possess the education and skills that allow our enterprises to succeed an in increasingly complex global economy,” Regan said.

The law would take effect on July 1, 2018.

Topics: Employment Law, wage equity

House Non-Compete Bill Seeks Middle Ground

Posted by Brad MacDougall on Jun 28, 2016 1:20:25 PM

The Massachusetts House of Representatives voted 149-0 Thursday to approve compromise legislation governing the use of non-compete agreements.

ScalesofJusticeVerySmall.jpgAssociated Industries of Massachusetts has opposed efforts to ban or limit the use of non-competes, but has also engaged in productive discussions with House Speaker Robert DeLeo on the issue.

“AIM recognizes and appreciates the approach that Speaker DeLeo has taken in the debate over non-compete agreements,” said John Regan, Executive Vice President of Government Affairs at AIM.

“The speaker recognizes the need to protect business interests at a time when non-competes are a vital part of protecting investments and ideas created by employers of all sizes and from all industries. As the speaker has noted in the past, Massachusetts cannot be an ‘invented here and manufactured elsewhere’ commonwealth.”

The House proposal makes three positive changes from legislation originally advanced by the Legislature’s Joint Committee on Labor & Workforce Development.  The changes address some of the major concerns expressed by AIM and other members of the business community in a June 20 meeting with Speaker DeLeo:

  • Garden Leave: A provision that would have required employers to pay workers half their salary during the restricted period of a non-compete agreement has been modified to recognize “other mutually-agreed upon consideration between the employer and the employee.” That means companies that compensate employees at the time they sign non-competes would not have to pay them again during the restricted period. While AIM would prefer to eliminate the “garden leave” provision entirely, the revision provides some flexibility to employers.
  • Amending contracts:  The compromise legislation would allow courts to reform or alter non-compete contracts to ensure that both parties are treated fairly.  Previous language would have forced a court to invalidate a contract in full. 
  • Effective date: The legislation would provide time for businesses to update contracts by moving the effective date from July 1 to October 1, 2016.  As previously proposed, the law would not apply retroactively to contracts signed as of October 1, 2016.

AIM has expressed support for several provisions of the revised bill that clearly define the conditions under which non-competes may be used:

  • Non-compete agreements could be only one year in duration.
  • Those subject to non-compete agreements would have to be given prior notice of the need to sign the agreement, as well as the opportunity to consult with legal counsel.
  • The non-compete would extend to a second year should an employee unlawfully take property belonging to the employer.

Amid these improvements, concerns remain.  AIM urges the House of Representative to consider several changes:

  • Stock options:  Make stock-option offerings exempt from being directly tied to non-compete agreements since such grants are used for attracting and retaining talent.
  • Exemptions:  Change the criteria under which workers would be exempt from non-competes from the Fair Labor Standards Act to a standard that relies on the minimum wage.
  • Garden Leave: Make technical changes to underscore the fact that non-compete agreements are often part of broader standardized national or international compensation plans.
  • Choice of Law Provision: Strike language that sets arbitrary rules for selecting the court where a claim may be brought.
  • Garden Leave exemption:  Create language to allow a non-compete to remain enforceable when an employee receives a severance payment or other long-term compensation.
  • Independent Contractors: Strike language that defines employee to include independent contractors within the definition of full-time employee. 
  • Damages:  Strike language that would preclude an employer from recouping damages or costs associated with a stolen “sales list” if an employee were to leave voluntarily.

AIM continues to maintain that there is no evidence that the use of non-compete agreements harms Massachusetts’ position as as a globally recognized leader in innovation. In fact, Securities and Exchange Commission (SEC) filings indicate that the well-heeled venture capitalists pushing to limit non-competes use such agreements themselves.

Employers believe selective use of non-competes protects the significant investments that allow their companies to be global leaders in their industries and to create jobs in the commonwealth.  The compromise legislation begins to recognize that Massachusetts employers need flexibility and legal options to protect intellectual property. 

AIM looks forward to working with members of the Legislature to address the changes that remain to be made.

Employers seeking to learn more about the non-compete issue may contact me at bmacdougall@aimnet.org.

 

Topics: Speaker Robert DeLeo, Employment Law, Massachusetts House of Representatives, Non-Compete Agreements

New Non-Compete Bill: Progress, But Issues Remain

Posted by Brad MacDougall on May 18, 2016 12:04:51 PM

The Massachusetts Legislature’s Joint Committee on Labor and Workforce Development on Monday released a non-compete reform bill containing provisions outlined by House Speaker Robert DeLeo in March.

ScalesofJusticeVerySmall.jpgThe measure is the latest iteration of a years-long battle by venture capitalists to ban or limit the use of non-compete agreements in Massachusetts. AIM has so far opposed changes to the non-compete law, believing the non-compete issue is about choice for both individuals and employers who should be free to negotiate contracts of mutual benefit as long as the employee is a part of the process.

AIM supports the following provisions of the Labor and Workforce Development bill:

  • Non-compete agreements could be only one year in duration.
  • Those subject to non-compete agreements would have to be given prior notice of the need to sign the agreement, as well as the opportunity to consult with legal counsel.
  • Extension of the non-compete to a second year should the employee unlawfully take property belonging to the employer.

AIM opposes the following provisions:

  • Imposition of a so called “garden leave” provision requiring that at least 50 percent compensation for the duration of a non-compete period. As one AIM-member lawyer noted, “This is not a law anywhere in the country. Moreover, most Massachusetts businesses are small and could not afford to protect their investments with this type of provision.”
  • Creation of multiple opportunities for a plaintiff or a court to void a non-compete contract. It is critical for a business to have confidence that their non-competes will be held up in court.
  • Non-competes would become invalid for employees who are terminated or laid off. As one western Massachusetts manufacturer noted, “The risk to employer is still alive and well if the terminated employee takes that information and goes to a direct competitor.”
  • A prohibition against courts reforming a contract, a provision that would make it likely that contracts would be voided. It is a long-standing and common practice for a court to reform an agreement rather than set it aside. As one AIM member noted, “The power and ability to reform a non-compete contract is a bedrock principle in equity. It is the primary way for the courts to make a fair and just ruling on the enforcement of a non-compete agreement. The courts take substantial evidence from the parties on an enforcement action, and thus is in the position to assess same and make a ruling which is ‘customized’ to the situation at hand. This a best practice that has allowed for proper and equitable application of non-compete agreements for over a hundred years”
  • Arbitrary rules for selecting the court where a claim may be brought.
  • Exemptions for certain workers for whom a non-compete would be invalid. AIM is concerned that changes announced today to the federal Fair Labor Standards Act will make these exemptions applicable to a broad swath of the work force. One AIM member from Fall River noted, that “In reality, how someone is paid (and how much) has little or nothing to do with what confidential or proprietary business information they may be exposed to. This has a big impact to small businesses.”

AIM has concerns about other sections of the legislation:

  • The manner in which the proposal captures independent contractors within the definition of full-time employee.
  • The chance that an employer may be precluded from recouping damages or costs associated with a stolen “sales list” if an employee were to voluntarily leave.
  • The requirement that a company reveal certain aspects of a specific trade secret through the court and discovery process. The court process and the manner in which trade and other business interests are protected in court should be given further analysis.
  • The aggressive implementation date of July 1, 2016. Given the significant challenge of changing legal documents, especially given new changes imposed by the defense of trade secret law

“AIM appreciates the approach that Speaker DeLeo has taken in the public policy debate over non-compete agreements,” said John Regan, Executive Vice President of Government Affairs at AIM.

“The Speaker clearly recognizes the need to protect business interests at a time when non-competes are a vital part of protecting investments and ideas created by employers of all sizes and from all industries. As the Speaker has noted in the past, Massachusetts cannot be an ‘invented here and manufactured elsewhere’ commonwealth.”

AIM looks forward to working with members of the Legislature to address these concerns.

AIM members may learn more about the non-compete issue by contacting Brad MacDougall, bmacdougall@aimnet.org.

Topics: Employment Law, Massachusetts employers, Non-Compete Agreements

Why We Support Pay Equity...And Oppose the Pay Equity Bill

Posted by Brad MacDougall on Apr 19, 2016 7:30:00 AM

A company CEO called Associated Industries of Massachusetts last week to express concern because she had been told that the association opposed equal pay for women.

Two_Women.jpgNothing could be further from the truth.

AIM and its 4,500 member employers unequivocally support the principle of equal pay for equal work. We support and the federal and state laws that protect fair compensation.  We believe that the best long-term strategy to achieve pay equity in the workplace is to ensure that both women and men possess the education and skills that allow our enterprises to succeed an in increasingly complex global economy.

What we do not support is the deeply flawed legislation that well-intentioned lawmakers are debating on Beacon Hill in response to the wage gap. An Act to Establish Pay Equity, which was passed by the Senate on a voice vote and is now pending before the House of Representatives, represents a classic example of “right goal, wrong approach.”

The bill is duplicative and unnecessary. Its ambiguous language raises the possibility that the privacy of our employees will be compromised. It may limit our ability as employers to financially reward the star performers in our companies. And most importantly, the bill will not achieve our shared objective of ensuring that women earn the same as men for the same work.

The important point is this: Don’t confuse employer opposition to the bill with lack of support for pay equity.

AIM and its member employers are committed to providing fair compensation to employees according to the value and success they bring to our enterprises. In an economy where skilled workers remain at a premium, any company that does not value all of its employees equally is unlikely to be around very long.

Martha Sullivan, President and CEO of Sensata Technologies in Attleboro said it best during AIM Executive Forum panel discussion – “When you look at how much work you have to do to bring along great talent out of the engineering pool, the idea that you would not reward that talent based on meritocracy, based on performance and in an equitable way is just a really bad business decision,” she said.

That is why AIM is a charter member and supporter of the 100 Percent Talent Compact sponsored by the Boston Women’s Workforce Council. AIM and other signers of the compact agree to assess their own data to see if wage gaps exist, take steps to address those gaps, and anonymously provide data to BWWC to assess progress for the city as a whole in eliminating the wage gap.

That is also why AIM supports the online calculator developed by Massachusetts Treasurer Deborah Goldberg to allow women to calculate the wage gap in the industries in which they work and send anonymous notifications to employers to make them aware of the problem. Anything that stimulates employer introspection on wage equity brings us closer to solving the problem.

Cathy Minehan, former President of the Federal Reserve Bank of Boston and Co-Chair of the Boston Women’s Workforce Council, told the AIM Board of Directors on March 18 that pay equity is an enormously complex issue. She said differentials reflect factors ranging from the availability of reasonably priced and high quality day care; affordable housing and transportation; the fields women choose; and unconscious bias baked into workplace culture.

Regarding the Senate legislation, Minehan indicated “The law does not, and in many ways cannot, deal with these key issues.”

AIM strongly agrees. There are far more effective paths to pay equity than overly proscriptive legislation that endangers the privacy of employees and inhibits the ability of employers to run their businesses. We stand ready to work with all parties to locate those paths.

If you want to see AIM’s specific concerns with the pay equity bill, click here.

Topics: Massachusetts Legislature, Employment Law, Pay Equity

Attorney General Certifies Graduated Tax Amendment

Posted by Brad MacDougall on Sep 2, 2015 12:53:56 PM

Massachusetts employers are profoundly disappointed that Attorney General Maura Healey today certified an ill-considered proposed amendment to the state constitution that would impose a surtax on incomes of more than $1 million.

statehousedomeAssociated Industries of Massachusetts (AIM) believes the proposal would cripple a state economy that relies heavily on tens of thousands of subchapter S corporations and other entities that pay taxes at individual rates. The association also argued before the attorney general that the proposal violates the state constitution’s prohibition against ballot questions creating specific appropriations.

An Initiative Petition for an Amendment to the Constitution of the Commonwealth to Provide Resources for Education and Transportation through an additional tax on incomes in excess of One Million Dollars represents an appropriation, according to AIM, because it requires the legislature to use revenues from the surtax exclusively for transportation and education. The proposal could appear on the statewide election ballot in 2018.

Healey certified one other constitutional amendment and 20 referendum questions this morning. The referendum proposals, which could appear on the 2016 ballot, include ones calling for the expansion of dysfunctional renewable-energy targets and financial penalties for retail stores or fast-food restaurants that change an employee’s schedule within 14 days of a shift.

The attorney general did not certify several versions of a proposed constitutional amendment specifying that corporations are not people and asserting the right of the courts to limit political contributions.

Proponents of the $1 million earnings surtax will have to collect 64,750 signatures from registered voters to move the process forward. Then one-quarter of the state Legislature must vote to advance the proposal, in two consecutive legislative sessions, before it can go to the voters in November 2018.

The initiative would scrap Massachusetts’ current flat income tax under which everyone pays at a rate of 5.15 percent — and create a two-tiered system, with all income above $1 million taxed at four percentage points more. The result would be an 80 percent tax increase on that income.

Massachusetts voters have repeatedly rejected efforts to impose a graduated income tax. The last effort, in 1994, lost by a two-to-one margin.

“We believe that ballot questions are a clumsy and inefficient way to make public policy,” said John Regan, Executive Vice President of Government Affairs at the association.

“Employers remain particularly concerned about a constitutional amendment that would limit the ability of employers to create jobs by draining investment capital out of the private sector and into bureaucratic government programs.”

Proponents argue that the tax will target people whose paychecks top $1 million annually. But the change will also effect capital gains, interest, wages, business and other types of taxes on individual company owners. Among the companies affected would be partnerships, limited liability corporations, sole proprietorships and subchapter S corporations.

The amendment would make Massachusetts’ top rate one of the highest in the country, according to figures compiled by the Tax Foundation, a non-partisan think tank based in Washington.

Promoters of the initiative include some of the most powerful unions in the state: SEIU, the Massachusetts Teachers Association, the American Federation of Teachers-Massachusetts, and the Massachusetts AFL-CIO.

AIM members interested in learning more about the proposed amendment may contact AIM Government Affairs at 617.262.1180.

 

Topics: Massachusetts employers, Taxes, Ballot Questions

Employers Face Flood of Ballot Questions

Posted by Brad MacDougall on Aug 10, 2015 9:59:51 AM

Massachusetts employers face a potential flood of statewide ballot initiatives in the next several years that could fundamentally alter the role of government in regulating private enterprise.

VoteHereSignTwenty four groups filed 35 initiative petitions with the attorney general’s office last Wednesday for proposed laws or constitutional amendments to go before voters in 2016 or 2018. The proposals range from mandating paid maternity leave to expanding dysfunctional renewable-energy targets to levying financial penalties for retail stores or fast-food restaurants that change an employee’s schedule within 14 days of a shift.

A proposed constitutional amendment that would impose a 4 percent surtax on income more than $1 million could reach the ballot by 2018. The change would boost the overall tax rate by 80 percent on any income more than $1 million, which could have devastating consequences for the large number of Massachusetts businesses organized as subchapter S corporations or limited liability corporations.

The Wednesday filing deadline started a long process by which initiative petitions qualify for inclusion on the statewide election ballot. The attorney general will initially review the petitions to determine whether they meet constitutional requirements. Decisions on certifications will be released on Sept. 2.

The number and variety of potential questions impacting employers would be unprecedented if even a portion of the proposed laws and amendments make it to the ballot.

Associated Industries of Massachusetts (AIM) will participate in discussions with the attorney general as an opponent of the parental leave, surtax, scheduling and solar energy questions. The association’s Board of Directors will review the remaining employer-related questions shortly and determine the positions that AIM will take.

AIM opposes ballot questions generally as an inefficient and clumsy method of resolving complex economic policy decisions.

Progressive groups, emboldened by their success in securing approval for paid sick time last November, are increasingly taking workplace social policy issues directly to voters.

“These initiatives, taken together, represent a broad assault on the ability of employers to create jobs and economic opportunity here in Massachusetts. It appears that social causes now trump economic policy,” said John Regan, Executive Vice President of Government Affairs at AIM.

The parental leave question would require employers to pay women who take leave to give birth or to adopt a child for at least two weeks of that leave. The law would require notice to be posted in any workplace in which females are employed.

One of the renewable energy questions would require that Massachusetts meet all of its electricity needs with renewable power by 2050. The second would increase subsidies to developers of solar power.

Here are all the proposed employer-related ballot questions that have been filed, with links to the text:

15-03 Constitutional Amendment Corporations Are Not People and May Be Regulated.  Money is Not Free Speech and May Be Regulated.

15-04 Constitutional Amendment Corporations Are Not People and May be Regulated.  The General Court May Limit Political Spending and Contributions.

15-06 Paid Parental Leave (AIM opposes)  

15-12 Initiative Petition for a Law Relative to Ending Common Core Education Standards.

15-17 An Initiative Petition for an Amendment to the Constitution of the Commonwealth to Provide Resources for Education and Transportation through an additional tax on incomes in excess of One Million Dollars.

15-18 Initiative Petition for a Law Relative to Renewable Energy.

15-19 Massachusetts Fair Health Care Pricing Act.

15-20 Massachusetts Equitable Health Care Pricing Act.

15-26 Initiative Petition for a Law Relative to Solar and Renewable Energy.

15-31 An Act to Allow Fair Access to Public Charter Schools.

15-35 An Initiative Petition for a Law Relating to Fairer Scheduling for Workers

A list of all 36 petitions may be found on the attorney general’s Web site.

 

Topics: Energy, Ballot Questions, Mandated Paid Leave

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