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With early voting now a reality in Massachusetts, voters across the Commonwealth have already begun to make their decisions behind the ballot curtain. One of the questions they are being asked to decide is Question 3, An Act to Prevent Cruelty to Farm Animals.

Question 3 seeks to ban certain farm animal confinement practices from being employed in Massachusetts, but also to ban the sale of products – eggs, veal or pork – in Massachusetts that may have come from animals in other states that allow those confinement practices. So we’re not just talking about impacting local Massachusetts farm practices, we’re talking about products from farms around the country. A local retailer thus would be prohibited from selling any eggs, veal or pork that “the business owner or operator knows or should know is the product of a covered animal that was confined in a cruel manner.”

Huh? When you really think about that, how are retailers supposed to know for certain that they are in compliance with this requirement? Retailers will be wholly reliant on the word of the producers and manufacturers of these products. This raises significant concerns about exposure to potential liabilities, but also appears to violate the Interstate Commerce Clause. A similar (yet not as far reaching) ballot question passed a few years ago in California, and that law has been tied up in federal court ever since, currently being challenged along those same interstate commerce grounds. With regard to liability, the concerns are heightened for small, independent stores, which lack the legal and compliance staffing of the larger chains.

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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.

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