HOUSE DOCKET, NO. 3758        FILED ON: 1/20/2023

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1864

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Marjorie C. Decker

_________________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to clean energy workforce standards and accountability.

_______________

PETITION OF:

HOUSE DOCKET, NO. 3758        FILED ON: 1/20/2023

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1864

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 1955 OF 2021-2022.]

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Third General Court
(2023-2024)

_______________

An Act relative to clean energy workforce standards and accountability.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 25A of the Massachusetts General Laws is hereby amended by adding the following section:-

Section 18(A): Clean Energy Workforce Standards and Accountability Act Definitions

For the purpose of this statute, the following definitions apply:

(a)As used in this legislation, the term “Applicant”  refers to

1. Any natural person or business, whether or not incorporated or unincorporated, who seeks a contract to provide labor or services under this Chapter, and employs another to work in the Commonwealth, or contracts with another natural person or business to do so (herein after “contractor”)  to perform labor, services or otherwise assist in the completion of a Project, under a contract, grant, subsidy, or any other arrangement funded in part or in the whole by the Commonwealth, and/or its departments, offices, agencies, subdivisions, and quasi-public agencies, including, but not limited to public authorities, subject to said chapter 150A by chapter 760 of the acts of 1962; and

2. Any Public Utilities that are regulated under M.G.L. c. 164.

   This definition excludes:

(i) The United States or a corporation wholly owned by the government of the United States; and

(ii) A public utility, but only when employing workers directly to perform construction and maintenance and other operational duties on its utility infrastructure and buildings. 

(b) For the purposes of this legislation, the term “Project” refers to initiatives of the Commonwealth and/or its departments, offices, agencies, subdivisions, and quasi-public agencies, including, but not limited to public authorities, subject to said chapter 150A by chapter 760 of the acts of 1962, modernizing and expanding the capacity of its existing energy infrastructure, providing climate change remediation, and/or developing renewable energy generation, transmission and distribution,  in furtherance of meeting the Commonwealth’s net zero emissions goals.

(c) For the purposes of this legislation, “Commonwealth” refers to Commonwealth and/or its departments, offices, agencies, political sub-divisions, and quasi-public agencies, including but not limited to quasi-public agencies subject to said chapter 150A by chapter 760 of the acts of 1962 and any quasi-public independent entity and any authority or body politic and corporate established by the general court to serve a public purpose.

(d) For the purposes of this act, “environmental justice population” shall mean a population with an annual median household income of not more than 65 per cent of the statewide median income or with a segment of the population that consists of residents that is not less than 25 per cent minority, foreign born or lacking in English language proficiency based on the most recent United States census.

(e) For the purposes of this act, a “municipality at high risk from the effects of climate change” shall mean a municipality that can demonstrate to the department current or future significant changes to its population, land use or local economy resulting from changes in climate.

(f) For the purposes of this act, a “labor peace agreement” refers to an agreement between an entity and any labor organization recognized under the National Labor Relations Act, referred to in this act as a bona fide labor organization, that prohibits labor organizations and members from engaging in picketing, work stoppages, boycotts, and any other economic interference in exchange for that entity agreeing not to disrupt efforts by the bona fide labor organization to communicate with, and attempt to organize and represent, the entity’s employees. The agreement shall provide a bona fide labor organization access at reasonable times to areas in which the entity’s employees work, for the purpose of meeting with employees to discuss their right to representation, employment rights under State law, and terms and conditions of employment. This type of agreement shall not mandate a particular method of election or certification of the bona fide labor organization.

(g) For purposes of this act, the term “energy infrastructure” refers to but is not limited to Massachusetts existing energy industry infrastructure generating, transmitting, and/or distributing energy from fossil fuel sources, building energy efficiency improvements, and renewable energy infrastructure—i.e., sun, wind, nuclear, geothermal and other energy sources not derived from the combustion of fossil fuels.

(h) ''Public Utilities'' refers to utilities that are regulated under M.G.L. c. 164.

(i) For purposes of this act, the term “supply chain facilities” refers to but is not limited to businesses that perform material extraction, refining, processing, fabrication, manufacturing, and assembly of components for renewable energy projects.

SECTION 2. Chapter 25A of the Massachusetts General Laws is hereby further amended by adding the following section:-

Section 18(B): Clean Energy Workforce Standards and Accountability Act:

(1) (a) Every Request for Proposals (RFP), Grant Application, or Solicitation offering funding from the Commonwealth or other public entity enumerated above for the purpose of furthering the Commonwealth’s net zero emissions goals in any manner for all commercial projects and residential projects in excess of 3 units, shall be performed in conformance with sections 26-27D of chapter 149, inclusive, and shall include the certification and disclosure requirements included in this section. 

(b) To be awarded funding or contracts by the Commonwealth, Applicants shall provide complete and accurate responses and disclosures to following certification and disclosure requirements, which shall include:

(i) A requirement for documentation reflecting the Applicant’s demonstrated commitment to workforce development within the Commonwealth;

(ii) A requirement that the Applicant will provide a statement of intent concerning efforts that it and its contractors and sub-contractors will take to promote workforce development on the project if successful;

(iii) A requirement for documentation reflecting the Applicant’s demonstrated commitment to economic development within the Commonwealth;

(iv) A requirement that the Applicant provide a statement of intent concerning efforts that it and its contractors and sub-contractors on this project will take to promote economic development on the project if successful

(v) A requirement for documentation reflecting the Applicant’s demonstrated commitment to expand workforce diversity, equity, and inclusion in its past projects within the Commonwealth;

(vi) A requirement that the Applicant provide a statement of intent concerning efforts that it and its contractors and sub-contractors on this project, will undertake to expand workforce diversity, equity, and inclusion on the project if successful;

(vii) A requirement that that the Applicant disclose whether it and each of its contractors and subcontractors on this project, have previously contracted with a labor organization, as defined by Massachusetts General Laws, c. 150A and/or the National Labor Relations Act, Section 2, in the Commonwealth or elsewhere. 

(viii) A requirement that the Applicant specify whether it and each of its contractors and subcontractors on this project participates in a state or Federally certified apprenticeship program and the number of apprentices the apprenticeship program has trained to completion for each of the last 5 years.

(ix) A requirement that the Applicant provide a statement of intent concerning the extent to which the Applicant, its contractors and sub-contractors on this project, intend to utilize apprentices on the project if successful.

(x) Certification that the Applicant and its contractors and sub-contractors on this project, have complied with Massachusetts General Laws Chapters 149, 151, 151A, 151B, and 152 and/or 29 U.S.C. § 201, et seq. and Federal anti-discrimination laws for the last 3 calendar years. 

(xi) Certification that the Applicant and its contractors and sub-contractors on this project are currently, and will remain, in compliance with Massachusetts General Laws Chapters 149, 151, 151A, 151B, and 152 and/or 29 U.S.C. § 201, et seq. and Federal anti-discrimination laws for the duration of the project.

(xii) To the extent the Applicant, or one of its contractors or sub-contractors on the project cannot meet the certification requirements provided for in Paragraphs 10 and 11, the Applicant must submit proof of a wage bond or other comparable form of insurance in an amount equal to the aggregate of one year’s gross wages for all workers projected to be employed by the Applicant, contractor, or sub-contractor for which certification is unavailable, to be maintained for the life of the project.

(xiii) Whether the Applicant has included detailed plans for assuring labor harmony during all phases of the construction, reconstruction, renovation, development and operation of the project.

(c) Every RFP, solicitation and/or advertisement for funding, issued by the Commonwealth under this Chapter shall notify Applicants that they will be disqualified from this project if they have been debarred by the federal government or Commonwealth for the entire term of the debarment.

(d) All Applicants shall timely provide the above documentation and certifications as part of their initial application. Failure to provide the same shall disqualify the applicant from receiving funding for the project on which funding has been requested.

(e) A successful Applicant’s good faith failure to provide complete, accurate certifications and documentation under Subsection A of this Section shall result in suspension from the project for a period of 30 days, to provide an opportunity for the Applicant to address application deficiencies to the satisfaction of the Commonwealth.  Failure to cure deficiencies, thereafter, shall result in termination.  A successful Applicant’s willful failure to provide accurate certifications and documentation shall result in permanent termination from the project and the return of all funds awarded therefor within 30 days. 

(g) The Attorney General shall enforce the provisions contained herein and may enact regulations consistent therewith.     

2. (a) Owners of supply chain facilities that provide goods and services to be used in the construction and maintenance of renewable energy generation, distribution, and transmission infrastructure, which are developed in part or in whole with public funding, shall agree to enter into fully executed labor peace agreements with a bona fide labor organization that actively represents or seeks to represent employees as permitted by Federal law.

SECTION 3. Chapter 149 of the General Laws is hereby amended by inserting after section 27H the following sections:

Section 27I. All construction, reconstruction, installation, alteration or repair on natural gas utility infrastructure, including, but not limited to, pipelines, mains, services and other infrastructure: (1) requiring the excavation, construction, reconstruction of public lands, rights of way, public works, or buildings and (2) not performed by workers directly employed by Public Utilities, as defined by M.G.L. c. 164, shall be performed and procured under this section of chapter 149.

No public authority, including, but not limited to, the Commonwealth, its subdivisions, a county, or a municipality, shall agree to pipeline construction, reconstruction, installation, alteration or repair work by a gas distribution company requiring the excavation, alternation, reconstruction, or repair of public lands, works, or buildings unless said agreement contains a stipulation requiring prescribed rates of wages, as determined by the commissioner, to be paid to individuals performing pipeline construction who are not gas company employees.

Any such approval which does not contain said stipulation shall be invalid, and no construction may commence thereunder.  Said rates of wages shall be requested of said commissioner by said public official or public body together with the gas local distribution company on whose service territory the public infrastructure lies, and shall be furnished by the commissioner in a schedule containing the classifications of jobs, and the rate of wages to be paid for each job. Said rates of wages shall include payments to health and welfare plans, or, if no such plan is in effect between employers and employees, the amount of such payments shall be paid directly to said employees. Such requests for rates shall be made every 6 months.

Whoever pays less than said rates of wages, including payments to health and welfare funds, or the equivalent in wages, on said works, and whoever accepts for his own use, or for the use of any other person, as a rebate, gratuity or in any other guise, any part or portion of said wages or health and welfare funds, shall have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C.

An employee claiming to be aggrieved by a violation of this section may, 90 days after the filing of a complaint with the attorney general, or sooner if the attorney general assents in writing, and within 3 years after the violation, institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief, for any damages incurred, and for any lost wages and other benefits pursuant to G.L. c. 149, s. 150. An employee so aggrieved who prevails in such an action shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits and shall also be awarded the costs of the litigation and reasonable attorneys' fees.

Section 27J. All construction, reconstruction, installation, alteration or repair on electrical utility  infrastructure: (1) requiring the excavation, construction, reconstruction of public lands, rights of way, public works, or buildings and (2) not performed by workers directly employed by Public Utilities, as defined by M.G.L. c. 164, shall be performed and procured under this section of chapter 149.

No public authority, including, but not limited to, the Commonwealth, its subdivisions, a county, or a municipality, shall agree to construction, reconstruction, installation, alteration or repair work by a electric distribution company requiring the excavation, alternation, reconstruction, or repair of public lands, works, or buildings unless said agreement contains a stipulation requiring prescribed rates of wages, as determined by the commissioner, to be paid to individuals performing pipeline construction who are not gas company employees.

Any such approval which does not contain said stipulation shall be invalid, and no construction may commence thereunder.  Said rates of wages shall be requested of said commissioner by said public official or public body together with the electric company on whose service territory the public infrastructure lies, and shall be furnished by the commissioner in a schedule containing the classifications of jobs, and the rate of wages to be paid for each job. Said rates of wages shall include payments to health and welfare plans, or, if no such plan is in effect between employers and employees, the amount of such payments shall be paid directly to said employees. Such requests for rates shall be made every 6 months.

Whoever pays less than said rates of wages, including payments to health and welfare funds, or the equivalent in wages, on said works, and whoever accepts for his own use, or for the use of any other person, as a rebate, gratuity or in any other guise, any part or portion of said wages or health and welfare funds, shall have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C.

An employee claiming to be aggrieved by a violation of this section may, 90 days after the filing of a complaint with the attorney general, or sooner if the attorney general assents in writing, and within 3 years after the violation, institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief, for any damages incurred, and for any lost wages and other benefits pursuant to G.L. c. 149, s. 150. An employee so aggrieved who prevails in such an action shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits and shall also be awarded the costs of the litigation and reasonable attorneys' fees.

Section 27K. All construction, reconstruction, installation, alteration or repair on renewable energy generation,  distribution, transmission infrastructure: (1) requiring the excavation, construction, reconstruction of public lands, rights of way, public works, or buildings and (2) not performed by workers directly employed by Public Utilities, as defined by M.G.L. c. 164, shall be performed and procured under this section of chapter 149.

No public authority, including, but not limited to, the Commonwealth, its subdivisions, a county, or a municipality, shall agree to construction, reconstruction, installation, alteration or repair work by a renewable energy company requiring the excavation, alternation, reconstruction, or repair of public lands, works, or buildings unless said agreement contains a stipulation requiring prescribed rates of wages, as determined by the commissioner, to be paid to individuals performing pipeline construction who are not gas company employees.

Any such approval which does not contain said stipulation shall be invalid, and no construction may commence thereunder.  Said rates of wages shall be requested of said commissioner by said public official or public body together with the renewable energy distribution company on whose service territory the public infrastructure lies, and shall be furnished by the commissioner in a schedule containing the classifications of jobs, and the rate of wages to be paid for each job. Said rates of wages shall include payments to health and welfare plans, or, if no such plan is in effect between employers and employees, the amount of such payments shall be paid directly to said employees. Such requests for rates shall be made every six (6) months.

Whoever pays less than said rates of wages, including payments to health and welfare funds, or the equivalent in wages, on said works, and whoever accepts for his own use, or for the use of any other person, as a rebate, gratuity or in any other guise, any part or portion of said wages or health and welfare funds, shall have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C.

An employee claiming to be aggrieved by a violation of this section may, 90 days after the filing of a complaint with the attorney general, or sooner if the attorney general assents in writing, and within 3 years after the violation, institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief, for any damages incurred, and for any lost wages and other benefits pursuant to G.L. c. 149, s. 150. An employee so aggrieved who prevails in such an action shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits and shall also be awarded the costs of the litigation and reasonable attorneys' fees.

SECTION 3. Section 2 of chapter 23J of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by inserting after the word “Alliance”, in line 50, the following words:

1 of whom shall be a representative of employees in the gas utility sector appointed by the President of the Massachusetts AFL-CIO; 1 of whom shall be a representative of employees in the electric power generation sector appointed by the President of the Massachusetts AFL-CIO;  1 of whom shall be the President of the Massachusetts AFL-CIO, or his/her designee,  and 1 of whom shall be the President of the Massachusetts Building Trades Council or his/her designee

And by striking out, in line 59, the words “and 1 of whom shall be a union representative”

SECTION 4. Section 3 of chapter 23J of the General Laws, as appearing in the 2020 Official Edition, is hereby amended in paragraph (27) by inserting after the words “clean energy industry:”, in line 141, the following words:-

including, but not limited to, collaboration with state and federally licensed apprenticeship and pre-apprenticeship programs providing training in the Commonwealth;

SECTION 5. Section 12 of chapter 23J of the Massachusetts General Laws, as appearing in the 2020 Official Edition, is hereby amended by inserting after the word “23A”, in line 2, the following paragraphs:-

The Center shall be deemed to be a public agency for purposes of, and shall be subject to, section 39M of chapter 30, chapter 149A, et seq., and sections 44A to 44H, inclusive, of chapter 149 and shall comply with requirements applicable to an independent public authority for publication of contract information in the central register established pursuant to section 20A of chapter 9.

With regard to all clean energy and other climate change remediation construction projects funded, owned or leased by the Commonwealth, including but not limited to the Center, the Commonwealth shall require that successful Applicants, in collaboration with their contractors and sub-contractors:

(a) Meet the workforce participation goals for the utilization of BIPOC and women as required by 44A(1)(G) of Chapter 149.  Provided, however, that such goals shall be equal to or greater than the goals contained in the executive office for administration and finance Administration Bulletin Number 14, and incorporate the data collection requirements contains in Administration Bulletin Number 17.

(b) Participate in state or federally accredited apprenticeship program(s) that have graduated at least 1 apprentice in the last 5 years and utilize apprentices at a percentage set by the commonwealth as part of its current workforce development plan.

(c) Bid all applicable construction, reconstruction, installation, alteration work performed on the Project under this Section consistent with section 44A of chapter 149, section 8 of chapter 149A, and section 39M of chapter 30.

(d) Compensate all construction, reconstruction, installation, alteration work performed under this Section, at a minimum, in accordance with chapter 149, sections 26-27D.

(e) Become signatory to a project labor agreement if such an agreement is selected as the project delivery method for the construction project by the contracting authority.

SECTION 6. Chapter 23J of the General Laws is hereby amended by adding the following section:

Section 13: Clean Energy Workforce Development Plan

The Massachusetts Clean Energy Technology Center (“Center”) shall develop and implement successive 5-year workforce development plans for the Commonwealth, beginning in FY2022, that includes outreach and recruitment into the Clean Energy Industry for existing workers in fossil fuel intensive industries, as well as environmental justice populations and individuals living in municipalities at high risk for climate change within the Commonwealth. 

The Center’s workforce development plans shall include:

(a) Development of technical assistance, grants, loans, and demonstration projects, facilitating the creation of construction, operations, and maintenance jobs in the Clean Energy Industry.

(b) Measures to expand training capacity for the Clean Energy industry, building upon the Commonwealth’s extensive existing public and private workforce development facilities, including all state and federally certified apprenticeship programs, licensure, and degree programs. 

(c) Specific goals for the utilization of the residual workforce in fossil fuel intensive industries, as well as environmental justice populations and individuals living in municipalities at high risk for climate change within the Commonwealth.

(d) Recommendations, programs and technical assistance for the Clean Energy Industry to ensure that the industry develops and maintains excellent working terms and conditions for all workers employed therein.

(e) Requirements for minimum working conditions on Clean Energy projects owned, leased, or financed by the Center through the Renewable Energy Trust Fund, or otherwise by the Commonwealth, its departments, offices, agencies, and quasi-independent agencies.    

The Center will engage all stakeholders in the planning process, including but not limited to the union representatives of workers in fossil fuel industries and organizations serving environmental justice populations and individuals living in municipalities at high risk for climate change within the Commonwealth.  The Center will coordinate their workforce development planning and research with the Executive Office of Labor and Workforce Development’s Office of Just Transition.