Worcester Business Journal

www.wbjournal.com August 15, 2016 • Worcester Business Journal 21 Massachusetts energy policy needed a Republican E D I T O R I A L The Worcester Business Journal welcomes letters to the editor and commentary submissions. Please send submissions to Brad Kane, editor, at bkane@wbjournal.com. O n Aug. 1, Gov. Charlie Baker signed into law the Act to Establish Pay Equity, which amends and strengthens Massachusetts' law prohibiting wage discrimination based on gender. As the name suggests, the Pay Equity Act prohibits employers from paying any employee a wage (including benefits) less than the wage paid to an employee of a different gender for comparable work. The term comparable work is broadly defined to mean work that is "substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions." Variations in wages are allowed only if they are based on, in general: seniority, a merit system, production, geography, education, training, experience or travel. The Pay Equity Act also prohibits employers from screening job applicants based on their wage histories or requiring job applicants to disclose their wage history as a condition of being considered for the position. Employers may seek the wage history of applicants from the applicants' former employers. Further, the Pay Equity Act prohibits employers from barring employees from disclosing or discussing their, or any other employee's, wages and retaliating against any employee for opposing any practice made illegal by the Pay Equity Act. Procedurally, the Pay Equity Act is quite plaintiff- friendly. Specifically, unlike other claims of discrimination or claims for violations of the Wage Act, claims for violations of the Pay Equity Act do not need to be first brought to the Massachusetts Commission Against Discrimination or the attorney general. In addition, the statute of limitations has been expanded to three years. Claims under the act may be filed by individuals, as a class of plaintiffs or by the attorney general. Damages for violations of the Pay Equity Act are steep. An employer found to have violated the act will be held liable for the unpaid wages, liquidated damages and the plaintiff 's attorneys' fees and costs. The Pay Equity Act strongly incentivizes employers to conduct self-evaluations of their pay practices and take steps toward remedying pay inequalities. If employers conduct a self-evaluation within three years prior to the initiation of a suit, they may use that fact as an affirmative defense. Thus, employers should consider conducting a self-evaluation before the act goes into effect in 2018 and then again at least every three years thereafter. Employers are also well advised to take several additional steps to ensure compliance with the act. Specifically, employers should revise applications to eliminate any questions related to salary history; train those involved in the hiring process (and instruct third- party recruiters) to not ask questions about applicants' salary history; if planning to seek wage history from a former employer, draft written authorizations for the prospective employee to sign; review handbooks and/or policies to ensure compliance; and post notices regarding the act. The act adds a lot of work to the attorney general's plate, as it instructs the AG to draft regulations interpreting the law, notices and model self-evaluation forms. So stay tuned! n Amanda Marie Baer is an associate in the labor, employment and employee benefits group at the Worcester and Westborough offices of law firm Mirick O'Connell. Pay Equity Act friendly to plaintiffs BY AMANDA MARIE BAER Special to the Worcester Business Journal V I E W P O I N T Amanda Marie Baer The upside of this political balancing act has not been visible in our nation's capital for many years, but it shines through in Massachusetts, a blue state with a Democratic-dominated legislature and a pragmatic Republican governor leading the way. The latest achievement of a conservative governor working out problems with mostly liberal lawmakers came last week when Gov. Charlie Baker signed a comprehensive Massachusetts energy bill into law. While the law has many elements and only time will tell how these big ideas will play out in practice, the bill championed by Baker and Democrats in the state House and Senate will do a much better job of achieving the state's increasing renewable energy commitments. One of the big breakthroughs is making good on the promise of offshore wind turbines off the coast of Massachusetts – often called the Saudi Arabia of wind energy with 6,000 megawatts of potential energy. The 1,600 megawatts of offshore wind required in the law is getting far less public pushback than previous efforts and seems much more achievable. The last great endeavor to install offshore wind played out as a decade-long melodrama as former Democratic Gov. Deval Patrick pushed hard for the 468-megawatt Cape Wind project. Before the project was scuttled, National Grid signed a Cape Wind contract where the utility would have paid nearly 19 cents per kilowatt hour – more than double the market rate. NStar, the state's other major utility now called Eversource Energy, held out much longer than National Grid before finally acquiescing to the Patrick Administration's demands to sign a Cape Wind contract in order to get regulatory approval for NStar's merger with Hartford-based Northeast Utilities. The project's public opposition was overwhelming, especially from influential Cape Cod residents. What Baker brought to the offshore wind table this year were cost considerations and a strong sense of public relations. Massachusetts commercial and residential ratepayers paid the fifth highest electricity rates in the country in 2015, according to the U.S. Energy Information Administration. Given the built-in problems that contribute to higher costs – the trouble in delivering fuels to New England; the complex web of transmission and distribution lines; and general public opposition to new energy infrastructure, especially lower-cost fossil fuel and nuclear power plants – Baker and his team figured if they were going to call for a high-cost offshore wind, they better find lower-cost alternatives to even it out. Offshore wind, on average, costs $158 per megawatt hour to install and operate, according to EIA, which makes it the highest-priced renewable energy after solar thermal. To offset this, Baker and the legislature required the state to get 1,200 of other renewables, mostly large-scale hydro and onshore wind, which at $68 and $65 per megawatt, are the cheapest renewable energy systems. Previously, many liberal leaning legislators and environmentalists would have turned up their nose at including large-scale hydro, and many still do. Whether or not you consider large-scale hydro a renewable energy probably depends on your feelings toward damming and its impact on wildlife, and – before Baker – Massachusetts didn't include it in its clean energy strategy. Yet, Canada and New York state have already-built hydro facilities and have excess power to sell, so by incorporating them into a clean-and-affordable strategy, Massachusetts isn't calling for new dams and found a way to lower its dependence on carbon emissions. In Connecticut, Democratic Gov. Dannel P. Malloy and his Democrat-heavy legislature in 2014 turned Connecticut into the first New England state to incorporate large-scale hydro into its renewable strategy as a way to affordably meet clean energy goals, so it is possible the Democrat-heavy Massachusetts political ruling class could have figured out a similar solution without Baker. Ultimately, though, what Baker and the legislature showed is that by not holding on too tightly to ideological concerns, the state could achieve its long term renewable goals while not forcing businesses and residents to fork out a significant premium. Another achievement of this new legislation was not picking a specific project for the offshore wind goals. While Cape Wind was the focus of the Patrick Administration, the new energy law simply calls for competitive projects to offer the best way to get to the 1,600-megawatt offshore requirement. Right now, three companies hold leases for potential Massachusetts offshore wind farms: two with a track record of building similar facilities in Europe – DONG Energy of Denmark and Offshore MW of Germany – and the third, Deepwater Wind of Providence, is building a facility off Rhode Island. Their proposals might face local opposition and fail to achieve approval, but by giving the state three or more options, public opposition will be spread out and more voices will be in favor of at least one of the projects going through, if not all of them. Every election cycle forces Americans to choose sides and ultimately feel as if they won or lost the race. What is important to remember is while Election Day marks the end of the campaign, it clears the slate and marks the beginning of new era of governance. When there is meaningful compromise and the system works, as it is with Baker and this legislature, it means the state can move ahead, and not fall victim to the dysfunctional gridlock that has mired our national politics. When ideology takes a backseat to pragmatic problem solving, we all have a lot more to show for it. n G iven all the, ahem, craziness of the national political scene and the doom-and-gloom predictions for the American presidency post- Obama, it easy to forget the two-party system has more or less worked pretty well for the past 240 years. For most of that time, two different ideological groups made up of like-minded people with their own intricacies have somehow figured out how to compromise to solve the nation's most vexing problems.

• Cover