TOWN COUNCILORS RAISE CONCERNS ABOUT PROPOSED WAGE THEFT BYLAW

REPORT: SPECIAL JOINT MEETING OF THE TOWN COUNCIL AND THE TOWN SERVICES AND OUTREACH COMMITTEE (5/4/20)

Highlights

• Councilors raised many questions and concerns following a report by the sponsors of a new wage theft bylaw.  Answers will be provided at the next TSO meeting.
• TSO discussed a proposal for the Council to adopt a Community Impact Report format for researching issues before the Council. Several concerns were raised and the proposal will be edited and discussed again at a future meeting.
• TSO unanimously approved the nomination of Sarah Swartz to serve on the Energy and Climate Action Committee and forwarded that nomination to the full council.

The meeting was held via Zoom webcast and was recorded for possible future broadcast. Participating from the Town Services and Outreach Committee (TSO) were Town Councilors Darcy Dumont, Chair (District 5), Alisa Brewer (at large), Dorothy Pam (District 3), Evan Ross (District 4), and George Ryan (District 3). Representing the Council were Councilors Pat DeAngelis (District 2), Mandi Jo Hanneke (at large), and Cathy Schoen (District 1). 

Also participating were Rose Bookbinder (Pioneer Valley Workers Center), Margaret Sawyer (Pioneer Valley Workers Center), Lisa Clauson (Carpenters Union), Jasmine Kerrissey (UMass Labor Center) and Amherst residents Meg Gage, Rick Last, and Max Page.

The meeting was called to order at 9:33 a.m.

Public Comment 
Rick Last, a resident of Middle Street and volunteer at the Pioneer Valley Workers Center, spoke in support of the proposed new wage theft ordinances for Amherst. He said that this is a proper time to think about the most vulnerable members of our community, with over 22 million people unemployed nationally, over 1 million infected with COVID-19, and over 70,000 dead. Workers in construction and in hospitality are especially vulnerable, he said. He pointed out that wage theft impacts not just workers but also honest businesses that can’t compete with those who don’t play by the rules. Last said we need bylaws that include consequences for non-compliance and that monitor businesses for their record of compliance with the law. He concluded by pointing out that neighboring towns have already adopted similar legislation.

Max Page, Professor of Architecture at UMass and Vice President of the Massachusetts Teachers Association, spoke in support of the proposed wage theft bylaw. He noted that it matches our town values and supports both the spirit and the letter of the Commonwealth’s wage bylaw. Page said that the Massachusetts Attorney General has clearly stated that her office cannot enforce state wage theft rules by itself, and that it needs help from communities. He emphasized the urgent need to adopt this legislation in the face of hardships imposed by the pandemic, and the need to guarantee that those who are most vulnerable get paid what they are owed. He concluded by suggesting that this is a proper time to rethink what we want our community and society to be like when we come out of the crisis and that this is an opportunity to build in more justice.

Jasmine Kerrissey, a professor at the UMass Labor Center, also supported the proposed ordinances. She cited a recent Labor Center study  that shows how important it is at this time to protect low wage workers. The study showed that high numbers of low-wage workers lack access to basic safety measures, cannot meet their families’ basic needs, and are scared at this time. She said she is worried that the pandemic will further undermine the well-being of low-wage workers and that includes the threat of wage theft. She emphasized that laws like the ones proposed for Amherst are proven to make a difference for low wage workers.

Wage Theft Bylaw Committee Discussion
TSO continued its discussion of the wage theft bylaw that was begun at its last meeting. Drafts of the proposed Amherst ordinances can be found here, here, and here.

The bylaw’s three sponsors, Mandi Jo Hanneke, Cathy Schoen, and Pat DeAngelis, were present to answer questions, as were Rose Bookbinder and Margaret Sawyer from the Pioneer Valley Workers Center and Lisa Clauson from the Carpenters Union.

Brewer complained that questions posed at the first presentation of the bylaw on April 21 had been answered less than 48 hours before this meeting. She suggested to the sponsors that things would go smoother if TSO actually followed its own process of providing materials well in advance of meetings.

Schoen apologized for not getting the responses out to TSO members sooner. She then shared documents that compare the current bylaw to what is proposed. Schoen said that the new ordinances strengthen existing laws, allowing the Town to use its power to sanction contractors that require a license but are not in compliance with requirements – either through fines or through denial of licenses or through some other negotiated settlement.  She noted that a key new feature is advance vetting of contractors and specifying potential penalties for non-compliance. The new bylaw also includes demographic criteria requiring inclusion of workers who are typically excluded from the construction trades, notably women and people of color. The bylaw also has clawback language to recover money from those who have not adhered to the law. And they add a wage and tip bylaw that Amherst’s current bylaws lack. Schoen also noted that the new bylaw would require contractors to acknowledge existing state law in writing when applying for licenses. 

Questions
Ross and Brewer posed questions, including:

• Why do we need a committee to oversee enforcement of the bylaw?
  
• Why is local enforcement preferable to referring people with complaints to the state Attorney General?
  
• Does existing Town practice allow a Town committee to receive specific complaints about an employer? (Brewer was adamant that it does not.)
  
• What does it mean for the Wage Theft Committee to take a complaint? What would be the process for doing so
  
• Is the intent of the new bylaw to empower the Board of License Commissioners (BOLC) to revoke a license if a business violates state wage requirements? (Ross said that he thinks the new bylaw is mostly about posting requirements, and he is unclear about where local enforcement is authorized.)
  
• What does the bylaw mean by “fair wages?” Does this mean union wages?

Ross also noted that the bylaw specifies that the Committee can establish regulations. Does that mean that it can establish regulations that are legally enforceable by the Town (like the BOLC)?

Ross and Brewer both raised concerns that the Chamber of Commerce has not been consulted on this proposal and asked that they be consulted.

Pam and Brewer wondered if reports or complaints to the  Wage Threft Committee would be confidential with Pam noting that employee complaints are often met with retribution. 

Pam said she likes the idea of requiring contractors to acknowledge in writing their commitment to state wage law but wondered if a past history of malfeasance would penalize a contractor if they had recently been in compliance. She noted that there are all kinds of ways to skirt the law (e.g. changing the company name) and asked how this can be avoided? She said that she would like to hear more about how and why the proposed process works in other towns. She noted that it is not clear what the tax incentive is or how it works. 

Ross worried that under the bylaw, businesses are presumed guilty until proven innocent.

Brewer and Ross seconded Pam’s concern about confidentiality. Brewer suggested that perhaps the Wage Theft Committee could function more as an advisory authority than as an entity with enforcement power. Brewer was adamant that “[Town committees] cannot take direct complaints from workers and protect confidentiality because of open meeting law” and that “there can’t be a town (wage theft) committee because of this” so the enforcement piece would have to be removed. She said that the bylaw is not workable the way it is written. 

Responses
Bookbinder responded that this framework has proven to be the most effective in meeting workers’ needs in various other Massachusetts cities and towns. Workers are more likely to pursue a complaint, she said, if they can do it at the local government level and with a process that is “less bureaucratic.” Across the state, local interventions have proven to be the most effective in protecting workers’ rights, she said.

Dumont suggested that because TSO has other business on the agenda, the sponsors would take the questions and come back with answers. The discussion will be taken up again at the next regular meeting of the TSO, on May 18.

Community Impact Report
Resident Meg Gage appeared before the Committee to report on progress of developing a Community Impact Report(CIR) (see here and here) from a proposal she had brought before the Council in its earliest days.  It was subsequently referred to the Community Resources Committee (CRC).

The panel was imagined as a way to help councilors consider new points of view, provide them with background information they might not have found on their own, broaden the knowledge base in order to inform decisions and avoid unintended consequences of decisions made with insufficient background information. Gage noted that many constituencies in Amherst do not have obvious representation on  committees or the Council, and the CAP could broaden the range of perspectives and information before decisions are made. 

In February,  the CRC  proposed a Community Impact Template, a process for advising the Council on policy and bylaws that included several CIR recommendations. The template was discussed but never adopted. Gage’s proposal was subsequently referred to the new Town Services and Outreach Committee to which she again proposed a revised CIR framework for the town.

Following a presentation by Gage, there was considerable push-back from Brewer, Ross, and Pam who argued that the Town doesn’t have the staff to do the background work proposed. They also expressed a strong reluctance to “farm out” work to non-committee members, suggesting that Committees should do what they can and leave it at that. There was little support for the proposal, with members seeming to think the Committee itself can identify experts and invite them to make appearances as needed. 

Pam said, “We’re not here to be doing a lot of research.” Ryan, however, said that he is comfortable with the document as is, and added, “We could wordsmith it to death and fine-tune it, but it’s sufficient for us to get to work. The questions that we need to be asking are right here.”

Brewer volunteered to edit the proposal.

Action Item
The Town Manager has appointed Councilor Sarah Swartz (District 1) to the Energy and Climate Action Committee (ECAC) to fill the vacancy left by the resignation of Evan Ross. Ross noted that when ECAC member Niki Robb resigned from it, the committee was left without someone with strong connections to the Amherst agricultural community. The Town Manager did not replace Robb with someone with agricultural expertise, but Swartz, a farmer herself, will bring the needed expertise back to the committee. Ross thanked Swartz for stepping up to serve in this role. 

TSO voted unanimously (5-0) to recommend Swartz’s appointment, and this was subsequently approved by the full Council at its meeting on May 4, as part of their consent agenda.

Procedure
There was considerable discussion about the process of taking and approving of minutes.

TSO scheduled an extra meeting at 11:30 a.m., May 11, to deal exclusively with the Farmers Market request to reopen.

Its next regular meeting will be at 9:30 on May 18.

The meeting adjourned at 11:39 a.m.