By Timothy M. Holly, Connolly Gallagher, LLP
Welcome to the discussion.
In an article available here, I raised what might be a controversial topic.
Specifically, I asked, what if you discovered that the bill seeks to compel a private business to demonstrate a plan that, rather than requiring truly equal employment opportunity for all and forbidding discrimination against any who are of a protected class under the law, focuses on the hiring specifically of men and people who are not “of color”? Let me be more specific in my hypothetical. How would you feel about a bill that provides for preference in granting necessary business licenses to those who convince the State that they have a plan that, rather than providing for recruiting and hiring on an equal opportunity basis (without sex or race serving as even motivating factors), which is a laudable and certainly lawful practice, focuses specifically on the hiring of men and people who are not “of color”?
Is that any better? Many would find that shocking and disturbing. Indeed, many would argue that enables and even encourages and causes sexism and racism in hiring by private employers. Would such a law even be constitutional?
The marijuana bill is different from the hypothetical in that it actually requires, as part of criteria for competitive scoring to determine who can obtain a necessary license, a “social responsibility plan” to show “diversity goals” and a plan to hire “people of color, women, and veterans.” So the urged/ required focus proposed in the bill is indeed based on sex and color, but the favored groups are different from my hypothetical.
Does the chosen sex and color to receive favor make the bill less offensive or more appropriate than the hypothetical?
As of January 29, 2021, Delaware has a provision in its Constitution that includes a “Equal Rights” provision pertaining to race, color, and sex. Neither color nor sex are limited to just one shade or sex. Moreover, multiple laws (e.g., the Delaware Discrimination in Employment Act, Title VII, 42 U.S.C. § 1981) make it unlawful to hire or contract with sex, color, or race being even so much as a “motivating factor.” The same is true of numerous categories knowing as “protected classes.” Equal rights at least supposedly do not favor only a few who are born part of a segment of the spectrum that is, for whatever reason, favored – even if for benevolent reasons – during any slice of time. Nonetheless, this bill arguably favors one particular sex and only some shades of skin color, in the context of a business with no operations history at all.
Some may feel it is “socially responsible” to hire based on “diversity goals” (meaning making a motivating factor based on sex, race, and color), with particular focus on hiring women and “people of color.” Others may consider that code for – and an indicator of – discrimination, and find the relevant provision of the bill irresponsible based on a view that discrimination is repugnant no matter which person is penalized for what they are (male/female, any color, etc.).
Whether “socially responsible” or not, businesses should consider that, if they are a new business with no history at all – much less no history of discrimination (where perhaps a carefully constructed affirmative action plan might allow for what amounts to lawful discrimination) – and they obtain a license and follow through on a plan to hire women because of their sex or anyone because of their color, they face a high risk of legal liability from anyone of a different sex or color who is not hired. These “social responsibility plans” are likely to become evidence in any such case. So beware!
I most certainly am not urging lawmakers (through more careful drafting) or employers (through pretext) to better hide an intent to urge others or take action to discriminate. Far from it. What I mean to communicate is that law makers and employers should not support, require, urge, or perform discrimination at all. Stated differently, outside the very narrow bounds of formal affirmative action programs (which do not apply nearly as broadly as many people seem to believe), private employers should take great care to not allow any attribute constituting a class that is protected by law to serve as even a motivating factor in any employment-related decision. That is true no matter the sex, color, race, etc. of the person.
In my own personal opinion, it would be very disingenuous for a law maker to claim to be repulsed by difficult-to-identify institutionalized headwinds that are believed to result in discrimination, and to claim to dream of a day when people are judged by the content of their character, but then to support a bill that expressly institutionalizes a form of discrimination. I submit for consideration that, if we want a society where discrimination does not exist and where systems are not built that nearly certainly will result in discrimination, a law that urges and perhaps even requires discrimination should be rejected.
I am in that camp, and that frankly has nothing to do with the issue of marijuana.
Passionate feelings are sure to compete on this issue. Join the conversation and let your representatives know how you feel.
Disclaimer: Any and all opinions contained in the above article and blog post are those of the author. They are not reflective of the Delaware State Chamber of Commerce's official stance on HB150.
By James DeChene, Armitage DeChene & Associates
The General Assembly continues its work meeting virtually. This week was relatively quiet with the introduction of HB166, Elevate Delaware. This bill builds on State Chamber efforts related to workforce training focusing on decreasing the skills gap and positioning Delawareans for new careers.
In addition, this week saw SB12, the SEED+ bill, pass the Senate. This bill increases eligibility for SEED scholarships and funding for Delawareans to attend Delaware Tech, even if they are not recently graduated from high school. SB95 also passed the Senate, which increases the Inspire scholarship for Delaware State University.
Discussions continue around pending legislation like Paid Family Leave (for more info, or to give feedback, contact Tyler Micik), and next week will be the Chamber’s webinar on marijuana legalization featuring representatives from the Association of Washington Business, and SAM (Smart Approaches to Marijuana) providing feedback on the impact marijuana legalization has had on employers in other states. To register, click here.
Next week, the General Assembly is in recess, but the Bond Committee will meet.
The following week is the State Chamber’s Small Business Day in Dover 2-day virtual event. Many bills remain to be acted on, including marijuana legalization, increasing Delaware’s minimum wage, and more. Small Business Day is a great opportunity for you to meet with your elected officials to let them know the impact these bills will have on your business and your employees.
By James DeChene, Armitage DeChene & Associates
The General Assembly gaveled out of session early on July 1, 2020 in what was the earliest ending in recent memory due to what has been an almost indescribable year to date. With little to no drama on the money bills (Budget, Grants in Aid, and Bond) as they were passed on June 29th, the General Assembly was left to close out a few bills on consent agendas.
The Senate said goodbye to retiring Senator Harris McDowell, and the House bid farewell to retiring Representative Quinn Johnson. This means that for next session there will be two new co-chairs for the Joint Finance Committee and both the Senate and House Energy Committees will have new chairs as well.
As the General Assembly came back to session in January, members seemed poised to pass a series of legislation that included increasing Delaware’s minimum wage, expanding worker’s rights, and increasing the role and presence of private and public employee unions. Those bills largely went nowhere, and with the COVID-19 pandemic altering how the legislature would work, those bills were placed on hold until next year.
The same can be said for legislation the business community supported as well. Efforts to invest in clean water infrastructure, building a new high school in the City of Wilmington, modifying the state’s offerings of Association Health Plans and creating new workforce training platforms (more on that later) all took a pause as well.
That said, a number of bills important to the business community were introduced, and some were acted on in the final weeks of this session. They included:
In the midst of three months of uncertainty, countless Zoom meetings with Governor Carney, members and staff from his Administration, the chambers of commerce community, stakeholder groups and others, there were a number of positives that were announced, and work completed ahead of schedule.
The State Chamber has long been an advocate for rural broadband development and adoption. Last year’s announcement of BlooSurf, a project to bring broadband to western Sussex and Kent counties was met with fierce approval. Originally slated to be completed in 18-24 months, the project was able to be completed in just over 12 by using federal CARES Act funds to speed up the building process. In July 2020, 15 towers are set to be completed. Efforts to promote residential adoption of broadband will roll out soon after in preparation for what could be another school year of distance learning. Now children in these communities will be able to be active participants. Similar broadband adoption efforts are taking place in Wilmington with the similar goal of making sure all children have access to distance learning efforts.
For the last year, the State Chamber has pushed for the creation of a workforce training program similar to what has worked with ZipCode Wilmington. A compressed, 40-hour week training schedule focusing on in-demand career paths that will help transition low-skill workers into better paying jobs. While the legislation creating this program was not worked on this year, we continue to work with Governor Carney and his Administration on creative ways to implement such a program, especially in light of the potential permanent job losses related to COVID-19.
Between now and January 2021, when the 151st General Assembly convenes, much will have happened:
There remains a great deal of uncertainty as we enter the second half of 2020. What does remain certain, however, is the Delaware State Chamber of Commerce’s dedication to advocacy on behalf of its members – the business community.
Look for more opportunities in the coming months to hear from experts on the latest trends as the COVID-19 pandemic, and recovery, continue to evolve. Also look for innovative networking opportunities and other creative ways to get your business noticed. For more information, check www.DSCC.com.
by James DeChene
Last week had, and in the upcoming magazine will have, a write up on the end of session that wrapped up early July 1st. Not captured, however, were some of the more esoteric moments that helped make up the last six months that I’ve found interesting now that summer has officially begun and your friendly neighborhood government affairs professional has time to think.
Headed into January with over 20% new faces was both exciting, thrilling, nerve-wracking and (at least for me) a career first to work with so many new members. It’s been interesting watching them learn the ways of the building, finding out what issues they are passionate about, and how the State Chamber and our members fit in. The answer to the last point is a positive one from my perspective. Each of the freshman legislators I had the opportunity to work with were open to hearing how legislation would impact the business community, and while we may not have agreed after each conversation, it’s important to continue to build the dialogue and relationship going forward.
I was also impressed with the “temperature” of the building. It’s no secret the last few years ended in with tempers flaring as the time grew later and later into July 1st, and even beyond. This year (with hopes that next year will be similar) each Chamber was efficient in finishing up what they needed to do, and it was one of the earliest, and least contentious, endings to a session in recent memory. Let’s keep that particular streak going.
As I think back to the work that was accomplished in the last six months, I’m grateful for the partnerships that helped make it possible. The Association of Chambers has been the most active it’s been in years with almost every chamber of commerce actively participating. The State Chamber membership stepped up to help provide background, talking points, suggestions, communications and alternatives on key pieces of legislation this year. That streak will definitely need to keep going.
You’ll hear more from us in the coming months on priorities we’re pursuing, including cheaper health care options for businesses, innovative ideas on workforce development and training opportunities, as well as asks for help to keep up the pressure on the “old standbys” in minimum wage and marijuana legalization legislation. You’ll also be asked to provide your feedback on these and other issues as we shape our 2020 agenda. Until then, I hope you enjoy this bit of summer and that your AC continues to work.
Earlier this morning the General Assembly finished their work for the first leg of this legislative session. Items of note included a budget that set aside close to $125 million in reserves for future years, the largest bond bill in Delaware history, and a grant-in-aid bill with more money allocated than in recent years.
Of specific note for the business community are the bills that did not find their way to passage, although many will return in January. They include a minimum wage increase, a tipped worker minimum wage increase, and the legalization of recreational marijuana.
The Chamber continues work on a number of items into next year, including finding creative ways to lower health care premiums for small and medium sized businesses, investments in workforce development and training opportunities for unemployed and underemployed workers, and finding innovative ways to attract and retain high level talent for employers looking to expand and relocate here in Delaware.
The State Chamber thanks you for your engagement this legislative session and we look forward to working with you next year in making sure Delaware is the best place to live, work and do business.
by James DeChene
This week in Dover saw the General Assembly continuing their work prior to the June 30th recess. Items of note included confirmation that the minimum wage bill will not be worked on again until January, and the same for the legalization of marijuana. The State Chamber will continue to advocate on behalf of the business community educating members of the General Assembly of the pitfalls of these bills, and will be looking to our members to help share their stories.
The House passed the budget bill this week, along with an approximate $61 million one-time spending bill to be administered by the Office of Management and Budget. Once bond and grants in aid bills are finalized, that will dictate how much will be used in the set aside for reserves (a reminder that the State Chamber has called for $125 million to be set aside). A bill that would allow school districts to provide students with bus passes, allowing them to get to school and potentially to after school jobs, passed the Senate where it now heads to the House. A bill that would increase the penalties for failure to file their proof of unemployment insurance each quarter from $17.25 to a minimum of $100 with a cap of $450.
Next week is the final week of session, ending June 30/July 1. Items to be considered, along with finalizing the budget, will be bond bill, grants in aid, and perhaps the workplace fraud act legislation that the Chamber and others have been working on for about a year now. More to come.
by James DeChene
This week was the first in the four-week sprint to June 30. Highlights this week included: HB110, the legalization of marijuana bill was released out of House Revenue and Finance committee. DSCC remains opposed to the bill for reasons such as restrictions in how employers can create employment policies surrounding marijuana use, the current difficulty for employers finding qualified applicants that can pass a drug screen (which we think will be exacerbated by legalization) and the lack of a spot test for impairment.
SB105, the bill that would raise Delaware’s minimum wage to $11 in January 2020 and then by a dollar each year until it hits $15 in 2024 (with an imbedded escalator to raise with cost of living), was tabled in committee this week, HOWEVER, it will be heard in Senate Labor Committee next Wednesday, June 12. This will be one of the Key Votes (along with HB110) that DSCC will be using when making the decision on whether to support candidates.
Also this week was the State Chamber’s End-of-Session Brunch. Attendees heard from Tim Holly, chair of the DSCC Employer Advocacy Committee, on HB110, from Gary Stockbridge, DSCC Chairman, Chair of the Delaware Workforce Development Board (DWDB) and President of Delmarva Power, on what the DWDB is up to and how members can help in workforce training. We then heard from Solomon Adote from the Delaware Department on Technology & Information on the Cyber Security Council and the work they are doing to develop best practices on how to combat cybersecurity threats.
Rounding out the morning were remarks from House Speaker Pete Schwartzkopf on what to expect in June, including legislation on clean water, medical and recreational marijuana, education investments and how the state budget is shaping up. Senate President David McBride offered his perspective including acknowledging efforts by the General Assembly and the State Chamber to help provide economic development opportunities in Delaware. He also discussed what the Senate will be working on, including minimum wage in committee, education and transportation infrastructure investment
by James DeChene
HB110, the bill that would legalize recreational marijuana, will be heard in the House Revenue and Finance Committee on Wednesday, June 5, at 2:30 p.m. Those members who have concerns over what legalized marijuana will mean to their business and their employees should come to Dover and tell committee members about the impact this legislation will have if passed.
To recap, the bill:
Each speaker can expect to have two minutes to speak—including introducing themselves and their organization, the number of employees you have, and the impacts the bill will have. I am happy to help guide you through this process. Please let me know as soon as possible if you plan to attend.
In other news this week, DTI and Bloosurf announced a partnership to bring broadband to areas in Sussex, Kent and southern New Castle counties over the next 18-24 months. This is an initiative the Chamber has been very supportive of, and we are looking forward to the economic development opportunities that will come as a result of this investment.
The General Assembly is back in session next week, and 13 legislative days remain. Expect a flurry of bills to be introduced, including a clean water infrastructure bill and more to come on a potential minimum wage increase bill.
by James DeChene
This week saw action on bills important to the Chamber. First, SB74 provides employers taking advantage of the New Economy Jobs credit to prorate the credit over 12 months, rather than using the calendar year (Chamber supports). This would allow employers making hires at the end of the year a full 12 months to spread out the credit. SB21, creating the Transportation Infrastructure Investment Fund was released from House Transportation Committee (Chamber supports). A bill banning certain flame retardants in consumer products (HB117-Chamber opposes) was tabled in committee. A bill banning single use plastic bags (HB130) passed the House and now goes to the Governor for signature. The effective date for implementation is January 1, 2021.
This session’s HB110, an act to legalize recreational marijuana, was introduced this week. As drafted the Chamber still opposes the language and will be working to insert language to protect employers. As previously noted, 71% of Chamber members oppose legalization.
Last week the Chamber attended a working group focused on what the next round of renewable portfolio standard goals would be post-2025. The Chamber expressed concerns over how increasing renewables would impact Delaware commercial energy users, and to make sure that as technology continues to improve, Delaware doesn’t lock itself in to a certain type of renewable source.
The General Assembly is off for the next two weeks before returning for all of June.
by James DeChene
This week the General Assembly returned from Easter break and the State Chamber, in partnership with its Small Business Committee and the Association of Chambers, hosted the 5th Annual Small Business Day in Dover. Over 70 people, including Chamber representatives, businesses leaders and elected officials, attended the event. The agenda included meetings between business owners and their legislators, and participation in the Small Business Caucus monthly meeting. Policy items of focus included HB80--Earned Income Tax Credit (Chamber supports), SB65—FAST Training (Chamber supports), HB15—New Personal Income Tax brackets (Chamber opposes), and the legalization of recreational marijuana (Chamber oppose).
This week in Legislative Hall, HB130, related to single use plastic bags, was released from the House Natural Resources Committee. And SB74, with a technical correction to the New Economy Jobs tax credit (Chamber supports), left the Senate Banking and Business Committee.
Next week, SB21—Transportation Infrastructure Investment Fund (Chamber supports) is in committee. More to come as we learn more.
Lastly, the Chamber is working to update its database to identify Chamber members that qualify as Diverse Suppliers. If you carry a Diverse Supplier designation please email Chuck James at email@example.com. Categories are Woman-Owned Business Enterprise, Minority-Owned Business Enterprise, Veteran-Owned Business Enterprise, Disabled-Owned Business Enterprise, Historically Black Colleges & Universities, LBGT-Owned Business Enterprise, Historically Underutilized Business (HUB), and Small Business Enterprise.