Massachusetts employers still struggling to comply with and adjust to the negative impact of the new Paid Sick Leave Law could be facing yet another, similarly egregious and costly, employer mandate at the 2016 ballot should proponents of a recently filed initiative petition (15-35) mandating employee scheduling standards prove successful. The measure, which has been described by many in the employer community as one of the worst pieces of legislation ever written, requires certain businesses to pay one to four hours of additional pay to employees whose schedule is changed within 14 days of a scheduled shift. In doing so the proposal would follow an ever growing and increasingly troubling trend of government intrusion into the employer-employee relationship and general business operations, resulting in significant costs to employers and unintended consequences for employees.

Unfortunately, the true impact and cost of the proposal are unknown due to poor drafting which fails to clearly identify those subject to its requirements. While the proponents claim that the law only applies to fast food restaurant and retail stores with 75 or more state-wide employees, the ambiguous and conflicting provisions of the measure allow for expansion to all employers, including public employers, through regulation or judicial interpretation. The proposed scheduling requirement itself is bad enough, however the uncertainty of not knowing if the law will apply to one’s business is particularly troublesome—especially due to the tie in to the Massachusetts Wage Law which allows for a private right of action and the possibility of treble damages. Inadvertent exposure to such liability as the result of imprecise lawmaking is simply unacceptable.

The rigid approach of the proposal also removes the flexibility currently enjoyed in the workplace by both employers and employees as the penalty pay requirement applies to all schedule changes with no exceptions made for changes at the request or agreement of the employee, changes resulting from compliance with the Paid Sick Leave or other leave laws or other unanticipated reasons, such as adverse weather conditions or government imposed curfews or travel bans. The proposal would effectively deter employers from working with their employees to resolve scheduling issues and from providing additional hours to interested and willing employees due to the additional cost incurred.

This inflexibility would also result in unnecessary, unaffordable and unavoidable costs to businesses. Take for example the events of last winter which resulted in a number of business closures both voluntary and involuntary. Were this proposal in place, businesses unable generate revenue at that time would have still been required to pay each employee penalty pay for cancelled shifts. Many businesses already struggling to survive due to the closures would have been lost. The rigid nature of this proposal is simply unworkable.

Finally, as evidenced by the various issues outline above, this proposal is ill suited for the fixed nature of the initiative petition process. Instead, the proper venue for a measure of this magnitude is the Legislature, which would allow for input from interested parties, amendment of the proposal to allow for more concise and clear communication of intent and scope, and adequate assessment of the resulting cost to the economy and the taxpayers of the Commonwealth.

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