Legislative Update: Monday, June 13, 2022

The General Assembly is in session this week. This continues to be among the busiest legislative sessions in recent memory, with a substantial number of bills with business impact.
 The House of Representatives will reconvene on Tuesday, June 14 at 2:00 p.m. and will also meet on Wednesday, June 15 at 2:00 p.m. and on Thursday, June 16 at 2:00 p.m. To view the House Agenda, visit https://legis.delaware.gov/Agenda/House.
 

• The Senate will reconvene on Tuesday, June 14 at 2:00 p.m. and will also meet on Wednesday, June 15 at 2:00 p.m. and on Thursday, June 16 at 2:00 p.m. To view the Senate Agenda, visit https://legis.delaware.gov/Agenda/Senate.

• PLA 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: On House Ready List. 
• 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, on committee agenda for Wednesday, June 15 at 12:00 p.m.
• 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, it may be added to the agenda for the Thursday, June 16 meeting of the House Natural Resources Committee. Hearing notice: https://legis.delaware.gov/MeetingNotice?committeeMeetingId=32866
• 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: Assigned to Senate Banking, Business & Insurance Committee, tabled in committee agenda for Wednesday, June 8 at 10:00 a.m. 
• 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: In House Judiciary Committee 
• “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 orginal legislation had problematic implications Delaware corporate entities. On the substitute, the Chamber sent a communication to the sponsor and all senators expressing opposition. 
  Chamber Position:  Opposed/Substitute under review    Status: Assigned to House Labor Committee 
• 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: Assigned to Senate Banking, Business & Insurance Committee. On committee agenda for Wednesday, June 15 at 10 a.m.
• 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.  
• 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. Chamber Position: Opposed  Status: On House Ready List

• 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 
• 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 

• 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 als0 create a board to administer the program. Chamber Position: Opposed     Status: Assigned to Senate Labor Committee. On committee agenda for Tuesday, June 14 at 10:00 a.m. 

• 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: Substitute under review. Status: Released in original form from Senate Education Committee (May 18), on Senate Ready List. 
• 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:  On Senate Ready List. 
• 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: Support Status:  In Senate Elections & Government Affairs Committee, On committee agenda for Wednesday, June 15, 2022, 11:30 a.m. 
• DRAFT Electric Car Charging/Residential Construction Legislation (McBride): Senator Sarah McBride is planning to introduce legislation which would 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
•   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.