Legislative Update: June 27, 2022

It is the final week of regular session for the 151^st General Assembly. The House and Senate will be in on Tuesday, Wednesday and Thursday of the coming week. The House will consider the capital budget, HB 475, on Tuesday. The bill’s release is still pending as of this afternoon (Monday, June 26).
 
·       The House of Representatives will reconvene on Tuesday, June 28 at 2:00 p.m. To view the House Agenda, visit https://legis.delaware.gov/Agenda/House. 

        The Senate will meet on Tuesday, June 28 at 2:00 p.m. To view the Senate Agenda, visit https://legis.delaware.gov/Agenda/Senate. 


·         Committee hearings: For a list of House and Senate committee hearings scheduled for next week, visit https://legis.delaware.gov/CommitteeMeetings. 
 
 
Bond Bill Committee Votes Completed bill to be released on Monday: The Joint Committee on Capital Improvement (Bond Bill) concluded voting on capital appropriations for the FY 2023 capital budget this past Thursday evening. The legislation will be released today and considered tomorrow by the House under suspension of rules.
 
Operating Budget and One-Time Supplemental Spending Bills Pass House: The House passed the FY 2023 operating budget as well as a one-time supplemental appropriations bill last Thursday. They now await action by the Governor. 
 
Copies of the state legislation listed below can be downloaded at www.legis.delaware.gov. 

The following list is not exhaustive and will be updated:
 

• Delaware Climate Change Solutions Act, SB 305 (Hansen): This Act, known as the Delaware Climate Change Solutions Act, follows the issuance of Delaware’s Climate Action Plan in 2021, and establishes a statutory requirement of greenhouse gas emissions reductions over the medium and long term to mitigate the adverse effects of climate change due to anthropogenic greenhouse gas emissions on the State, establishing a mandatory and regularly updated plan to achieve those emissions reductions and develop resilience strategies for the State, and requires State agencies to address climate change in decision-making and rulemaking. Chamber Position: Opposed. Status: In House Natural Resources Committee. Scheduled for a hearing in the House Natural Resources Committee on Wednesday, June 29 at 12:00 p.m.  Note: The NCC Chamber vigorously opposed the bill in the Senate and is seeking deferral of the bill to next year (152^nd General Assembly) in order to address substantial concerns regarding language delegating unprecedented authority to executive branch agencies without clear parameters governing the exercise thereof. For more information, contact Joe Fitzgerald at (302)294-2060 or fitzgeraldj@ncccc.com.

• Prohibiting surcharges on credit card purchases, HB 488 (Longhurst): This Act prohibits a seller from imposing a surcharge on a cardholder who elects to use a credit card in lieu of payment by cash, check, or similar means. Chamber Position: Under Review   Status: House Administration Note: This legislation was introduced this afternoon.  This legislation will be heard in committee on Wednesday, June 29 at 1:00 p.m. 

• Craft Training Requirements in Public Works Contracts, HB 487 (Longhurst): This bill was just introduced this afternoon (June 22) and assigned to the House Administration Committee.  An initial reading of the bill and consultation with pertinent Chamber members indicate that the legislation may generate concerns. The synopsis reads as follows:

• State Operating Budget, SB 250 (Paradee):  The state operating budget passed the Senate on Tuesday, June 21 by a vote of 19-2, with Senator Colin Bonini (R-Dover) and Senator Gerald Hocker (R-Ocean View) as the two “no” votes. It appropriates roughly $5.1 billion to fund the operations of state government. This marks the first time that the state operating budget has crossed the $5 billion threshold. Status: Passed the House, awaiting action by the Governor.
   
• One-Time Supplemental Funding Bill, SB 251 (Paradee): A bill providing $378,613,700 in one-time operating funding allocations, passed the Senate unanimously on June 21. Status: Passed the House, awaiting action by the Governor.

• Sick and Safe Leave Legislation, HB 409 (Morrison): Representative Eric Morrison (D-Glasgow) has introduced legislation which would require all employers in the State to provide employees with a minimum of 1 hour of paid sick time and safety leave for every 30 hours worked. Chamber Position: Opposed     Status: House Economic Development, Banking, Insurance & Commerce Committee. Note: The Chamber testified in opposition before the committee on Tuesday, June 21. The addition of another employer mandate in the current environment is not advisable. Additionally, there is civil liability language in the bill that raises serious concerns.  A member was absent. The Chamber sought to have the bill tabled.  For now, it remains in committee, we will monitor its status. Should it be released, due to the fiscal note, it will be assigned to the House Appropriations Committee where it would be unlikely to gain release due to lack of funding in the budget.  For more information, contact Joe Fitzgerald at (302)294-2060 or fitzgeraldj@ncccc.com. 

• Temporary Entrance Permits HB 484 (Bush):  This legislation would provide for the issuance of temporary entrance permits for certain development projects: 

• Plus Process Exemption for Certain Projects Level 1 and Level 2 Investment Areas, HB 420 (Bush): This bill would allow exemptions for projects located in Investment Level 1 or 2 areas under the Strategies for State Policies and Spending that are consistent with local zoning and any local comprehensive plan, which will create full-time jobs from the pre-application process unless otherwise required by a local government or requested by the applicant would constitute an important first step in streamlining permitting and other regulatory requirements to attract jobs and investment to our state. Chamber Position: Supports Status: On Senate Ready List. Note: The Chamber testified in support of the bill before the House Economic Development Committee on May 17 and supported its passage by the House. The Chamber testified in support again before the Senate Elections & Government Affairs Committee on June 15, after which it was released from committee.  This legislation is consistent with the work and objectives of the Ready in 6 coalition, of which the Chamber is a member. Chamber President Bob Chadwick has prioritized Ready in 6 initiatives as part of the Chamber’s public policy advocacy efforts. For more information, contact Joe Fitzgerald at (302)294-2060 or fitzgeraldj@ncccc.com
• Workforce Agreement Legislation, HB 435 (Lambert): The bill requires that all large public works construction projects, utilizing state funds, are to be governed by a Community Workforce Agreement with labor organizations engaged in the construction industry to provide structure and stability and promote efficient completion. Chamber Position: Opposed Status: In House Appropriations Committee. Note: The Chamber testified before the House Labor Committee in opposition to this legislation on June 7. We are joined in opposition to the bill by other business organizations and the Carney Administration. The Chamber’s opposition is informed by concerns about the potential impact on women and minority owned enterprises in Delaware (though a stated objective of the legislation is to promote inclusion of these firms, the effect of the bill as written could work contrary that end), language excluding open shop contractors from bidding on large public projects, increased capital construction costs for taxpayers, and questions regarding the potential impact on private entities utilizing Health Care Authority or Economic Development Authority bonds to finance major capital projects. For more information, contact Joe Fitzgerald at (302)294-2060 or fitzgeraldj@ncccc.com
• Green Amendment, HB 220 (Wilson-Anton): This legislation would serve as the first leg of an amendment to Delaware’s Constitution which would create an “inherent, indefeasible and inalienable right to a clean and healthy environment, including water, air, soil, flora, fauna, ecosystems and climate, and to the preservation of the natural, cultural, scenic and healthful qualities of the environment.” Pennsylvania has a similar amendment in their constitution which the Pennsylvania Supreme Court has interpreted as having direct bearing on industry as well as development.  Chamber Position: Opposed. Status: In House Administration Committee, Tabled in committee on June 16.  Note: The NCC Chamber testified in opposition to the bill before the House Administration Committee on June 15. While the Chamber shares the sponsors goal of promoting a healthy ecosystem, and furthering public health through sound environmental policy, we respectfully submit that specific statutes and associated regulations tailored to advance those objectives provide clearer guidance, less litigation, and more measurable outcomes. For more information, contact Joe Fitzgerald at (302)294-2060 or fitzgeraldj@ncccc.com  
• Environmental Permits in Overburdened Communities, House Bill 466 (Johnson):  This Act defines certain facilities which will require an applicant seeking a permit for a new facility, or expansion of an existing facility, or renewal of an existing permit, located in an overburdened community, as defined in the Act, to provide an environmental justice impact report. Facility includes the following commercial or industrial business: (1) Manufacturer of animal food, meat, seafood, tobacco, manufactured home, chemicals, pharmaceuticals, petroleum, asphalt, ready-mix concrete, primary metal, nonmetallic mineral products, ammunition or transport equipment; (2) pulp, paper, paperboard and sawmills; (3) rail or water freight dock; (4) landfill, transfer station, resource recovery, scrap metal or recycle center or compost operator; (5) sewage treatment center, animal waste processor or sludge processor; (6) commercial livestock and poultry growers; (7) medical waste incinerator (with the exception of those attendant to a hospital or university intended to process self-generated medical waste); and (8) commercial or industrial businesses not contained in (1)-(7) that currently contribute or upon permit approval would contribute to the cumulative pollution in an overburdened community, as identified by the Department in conjunction with the Environmental Justice Board. For all permit applications, the environmental justice impact report would be required at least 60 days before a required public hearing. Under the Act an “overburdened community” is defined as any census tract, as delineated in the most recent U.S. Census, in which one or more of the following applies: (1) 35% of the residents are below 185% of federal poverty level. (2) At least 25% or more identify as minority or member of a state or federally recognized tribal community or immigrant. (3) 25% or more have limited English proficiency as defined by U.S. Census Bureau. (4) Geographic locations that potentially experience harms and risks as determined by the Environmental Justice Board. The Department would be required to create and post on its website a list of “overburdened communities” and update the list every 2 years. The Act establishes the Environmental Justice Board to review and make recommendations on the environmental justice impact reports, conduct public hearings, and other measures to help the Department fulfill the purpose of this chapter. The public hearing on the permit would be required to provide an opportunity for meaningful public participation by the overburdened community. Following the public hearing the Secretary would be required to consider the recommendation of the Environmental Justice Board and the testimony presented at the public hearing. The Secretary could impose conditions to the permit that may be necessary to reduce the adverse impact to the public health or to the environment in the overburdened community. The Secretary would have the authority to deny a permit application in an overburdened community upon a finding that the cumulative impact imposed by the new or expanded facility would constitute an unreasonable risk to the health of the residents of the overburdened community or to the environment in that community. The Act requires the Department to establish rules and regulations to implement the Act, in consultation with the Environmental Justice Board, within 6 months after its enactment. Chamber Position: Under Review. Status: In House Natural Resources Committee
• Data Broker Legislation HB 262 w/ HA 1 and HA 2 (Griffiths): This bill would impose registration, fee and data privacy requirements on companies and nonprofits which collect data on 500 or more Delaware customers/consumers/clients and license or sell it to a third party.  Chamber Position: seeking amendments in the Senate, two amendments successfully sought in the House.  Status: Senate Banking, Business & Insurance Committee, tabled in committee on June 8. Note: The Chamber testified on the bill before the Senate Banking, Business & Insurance Committee on June 8. For more information, contact Joe Fitzgerald at (302)294-2060 or fitzgeraldj@ncccc.com.
• Consumer Protection Fund Settlement Allocations, SB 260 (Gay): From synopsis: This Act increases the maximum amount of money the Department of Justice can keep in the Consumer Protection Fund at the end of each fiscal year from $3 million to $10 million. Increasing the retention cap from $3 million to $10 million will promote greater stability in funding the Division’s operations even during periods of volatility in the amount of money the Division brings in through its investigation and enforcement work, and will reduce the risk that the Division needs to seek funding for its critical operations out of General Fund appropriations. Increasing the retention cap will not affect ASF spending authorization for the Consumer Protection Fund, which will remain subject to the existing appropriations process.  Chamber Position: Under Review.  Status: Released from House Judiciary Committee on June 22, on House Ready List.
• “Wage Theft” SS 1 to SB 35 (Walsh): This bill would reproduce a definition of “independent contractor” (from the Workplace Fraud Act in Ch. 35) to create a new statute in Chapter 11 of Title 19 of the Delaware Code (Labor) which would levy civil and criminal penalties for violations. Supporters of the bill assert that it is intended to address the problem of employers misclassifying employees as independent contractors in order to avoid certain tax and regulatory obligations. Based on the advice of an employment law practitioner, it is our understanding that the bill would reach beyond that and impact businesses legitimately using the services of independent contractors.  The NCC Chamber offered detailed testimony on the original bill before the Senate Labor Committee in May. The original legislation had problematic implications for Delaware corporate entities. On the substitute, the Chamber sent a communication to the sponsor and all senators expressing opposition. Chamber Position:  Opposed    Status: Released from House Labor Committee on June 21 and assigned to House Appropriations Committee. Note: The Chamber testified in opposition to the bill before the House Labor Committee on June 21. Though the substitute, as amended, is a substantial improvement over the original legislation which the Chamber opposed in testimony before the Senate Labor Committee in May. The Chamber’s continued opposition is based on concerns about the criminal penalties in the legislation and the potential for unintended consequences for entities using the services of independent contractors in good faith. For more information, contact Joe Fitzgerald at (302)294-2060 or fitzgeraldj@ncccc.com.
• Retailers Required to Accept Cash Payment, HB 299 w/ HA 2 (Cooke): This legislation would prohibit retailers from refusing to accept cash for in-person retail transactions. The Chamber successfully sought an amendment addressing a number of concerns about the bill, including a private right of action.  Chamber Position: Opposed prior to HA 2. Amendments (HA 2) sought successfully in House, so the Chamber is now neutral   Status: On Senate Ready List. Note: The Chamber testified before the Senate Banking, Business & Insurance Committee on June 15 to thank Representative Cooke for working with us to address business concerns with an amendment, as well the Senate sponsor, Senator Jack Walsh (D-Stanton) for supporting those amendments.  For more information, contact Joe Fitzgerald at (302)294-2060 or fitzgeraldj@ncccc.com.
• Paid Family and Medical Leave SS 2 to SB 1 w/ HA 1 (McBride): Paid family and medical leave legislation, sponsored by Senator Sarah McBride (D-Wilmington), has passed both houses of the General Assembly and awaits signature by the governor. Governor Carney mentioned the bill in his January State of the State Address and signed the legislation in early May. Chamber Position:  Opposed.  Status: Signed by the Governor.  Note: For more information, contact Joe Fitzgerald at (302)294-2060 or fitzgeraldj@ncccc.com.
• Failure to Pay Wages SS 1 to SB 208, w/ SA 1 (Walsh):  This legislation seeks to clarify that an employer is liable for liquidated damages if the employer does not make wages available on the next payday after the end of employment. There is disagreement among employment law practitioners about the effect of the bill. Based on expert member input, we read the legislation as removing an employer’s good faith defense in a wage action. Chamber Position: Opposed  Status: On House Ready List. Note:  The NCC Chamber testified against this bill in its original form before the Senate Labor Committee on January 27.  The Chamber testified before the House Labor Committee in opposition to the bill in its current form on April 12. For more information, contact Joe Fitzgerald at (302)294-2060 or fitzgeraldj@ncccc.com.

• Paid Time Off to Vote HS 1 to HB 288 (Morrison): This bill would require private and public employers in the State to give any employee who is a resident of Delaware and scheduled to work at least 7.5 hours on an election day 2 hours of paid leave in order for the employee to exercise the right to vote in person.  
  Chamber Position: Opposed     Status: House Administration Committee 

• Delaware EARNS Act, House Bill 205 w/ HA 3 (Lambert): This legislation would create a state-administered retirement savings program to which employees, regardless of sector, could contribute via payroll deductions. It would also create a board to administer the program. Chamber Position: Opposed     Status: Passed Senate on June 21, awaiting action by the governor. Note: The Chamber testified in opposition to the bill before the Senate Labor Committee on June 14. The Chamber views the legislation as creating unnecessary competition with the private sector on the part of state government. For more information, contact Joe Fitzgerald at (302)294-2060 or fitzgeraldj@ncccc.com.

• Residential Construction and School Capacity, SS 1 for SB 287 (Hansen):The bill would create new regulatory requirements for residential construction as it relates to school capacity. Chamber Position: from opposed to neutral. Status: on Senate Ready List. Note: The Chamber opposed the original bill and testified to that effect before the Senate Education Committee in May. A compromise substitute bill resulted from discussions between the sponsor and residential builders, which resulted in the Chamber’s position moving from opposed to neutral.  

• CSA and Liability for Employers, HB 277 w/ HA 1 (Lynn): The bill, as originally written, would have resulted in vicarious liability for businesses, schools, and other entities which provide services that are “specifically targeted to or primarily used by children, where an employee, volunteer, or other agent of the entity engaged in an act or acts of child sexual abuse. The bill was so broadly written that it could have taken in a substantial portion of the retail, food service, social services nonprofit, health care and educational sectors. No provision was set forth in the bill to provide an affirmative defense where background checks had been undertaken, where no criminal history existed, or where policies and procedures were in place. The elements establishing grounds for liability were broad enough to include contexts and acts that would be well beyond an employer’s ability to control. The sponsor introduced House Amendment 1 (which is now a part of the bill) which narrowed the scope of the legislation to public schools and changes the standard of culpability for public schools from “gross negligence” to “negligence”, waiving their claim to limited immunity. Chamber Position: Neutral after adoption of HA 1. Status:  Passed the Senate, awaiting action by the Governor. For more information, contact Joe Fitzgerald at (302)294-2060 or fitzgeraldj@ncccc.com.

• DRAFT Electric Car Charging/Residential Construction Legislation (McBride): Senator Sarah McBride is planning to introduce legislation which would mandate inclusion of an electric charging conduit for every new single-family home or townhome for new residential construction.  There would be certain requirements where apartments complexes/ and other multi-family housing construction is concerned. It would add to the cost of housing. The draft contains a private right of action which would allow legal action against homebuilders and others if new construction does not include an electric charging conduit. There would be an additional penalty of $5000 for each violation, plus attorney’s fees and actual damages.  Chamber Position: Under review/opposition likely unless amended Status: Introduction pending.

• New Castle County 2022 Comprehensive Development Plan Update, Ordinance #22-024
  On Tuesday, May 3, the Chamber offered testimony on the ordinance which would incorporate updates to the New Castle County Comprehensive Development Plan based on the updates in the draft document. We also submitted a joint letter with the Committee of 100. Chamber Position: Opposed as written, seeking amendments/edits. Status: Awaiting consideration by New Castle County Council, which could take place as soon as June 28.

•  City of Wilmington Predictive Scheduling Ordinance: Wilmington City Councilmember Shane Darby has introduced legislation which would require retail, hospitality, and food service establishments with 250 or more employees to provide advance notice of their work schedules, compensation for late changes to their schedules, rest between shifts, and first-right of refusal for additional work shifts. Chamber Position:   Opposed.  Status: Awaiting introduction, first and second reading, and consideration by Wilmington City Council Finance Committee.