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WECA Political Update July 9, 2020

Thursday, July 09, 2020

How to Manage and Respond to Suspected and Confirmed Cases of COVID-19 on the Jobsite The AGC has developed a situation flow chart designed for contractors with suspected and confirmed cases of COVID-19 on the job-site. WECA advises members to discuss their COVID-19 response strategies with their insurance companies and legal counsel on what other steps should be taken. View the workflow chart here.

Yolo Issues Emergency Regulation on COVID-19 Compliance Yolo County just issued the following order with fines up to $10k for not abiding by local and state health orders:
More here:
Santa Clara County issued an updated Shelter in Place order. In addition to the order, the County issued industry specific mandatory directives which will become effective on July 13th, 2020. The Directive applies to all construction projects, but restrictions vary by the size of the project. Here is the full directive as well as a summary of what the directive entails.

Legislature sets July 27 return date The Legislature will return on July 27, leadership announced on Thursday. It will mark a two-week delay spurred by a coronavirus resurgence that has infected two Assembly members. President Pro Tem Toni Atkins and Assembly Speaker Anthony Rendon announced the July 27 return date, citing in a joint statement the imperative to "minimize potential COVID-19 exposure and transmission in the California State Capitol." This further narrows the already-tightened window for passing bills ahead of the end of the legislative session on August 31. Leadership already had delayed a planned July 13 return from recess as coronavirus cases and hospitalizations have spiked around the state. Assembly members Autumn Burke (D-Marina del Rey) and Tom Lackey (R-Palmdale) both tested positive in recent days. When lawmakers return they'll have just five weeks to pass about 1,000 bills out of committees and then off the respective floors of their houses — an attenuated session that could constrain opportunities to shape policy. [Politico]
NLRB Specifies Recommended Protocols for Manual Elections During COVID-19 After months of permitting almost exclusively mail ballot elections due to concerns surrounding the spread of COVID-19, the National Labor Relations Board released “suggested” protocols on July 6, 2020 for holding manual elections. These protocols will facilitate a return to in-person secret ballot voting, which is generally considered far superior to mail ballot voting both in terms of maximizing employee participation and in terms of ensuring employee free choice. Given the seriousness of the COVID-19 pandemic, the protocols are understandably stringent, and will require significant effort on the part of employers that wish to take advantage of them. Nevertheless, the protocols represent a welcome development for employers that wish to ensure free and fair representation elections. Learn More
Webinar on California’s Flat Sum Bonus Overtime Rules One area of California labor law that can be troubling is California's overtime requirements for flat sum bonuses. While California's Labor Commissioner has long found that a different overtime calculation must be used for certain “flat sum" bonuses, many employers failed to comply with this position. But when the California Supreme Court adopted this view in its Alvarado v. Dart Container Corp. decision in March 2018, there was no longer a place to hide. Yet, many employers still do not fully understand the difference between a flat sum bonus and a production bonus or the significant impact on the overtime calculation if they get this wrong. Littler is offering a complimentary presentation, that will focus solely on addressing this unique quirk in California law, including a detailed overview of what qualifies as a flat sum bonus, samples of the overtime calculation applicable to flat sum bonuses, and options for changing the parameters of certain compensation to remove the payment from flat sum bonus consideration. The event is on July 22 at 11:00 am Register

Budget. Newsom and the Legislature reached a final resolution on how to balance the budget with a variety of accounting tricks and expectation of the receipt of federal bailout money. Here’s a two-minute video recap from Cal-Matters on the budget.

November ballot The Secretary of State released the ballot measure that will be on the November ballot:
  • Proposition 14: Authorizes $5.5 billion in state general obligation bonds to fund grants from the California Institute of Regenerative Medicine. (Initiative)
  • Proposition 15: “Split roll” change to untether commercial property taxes from Proposition 13 protection from annual increases. (Initiative)
  • Proposition 16: Repeals Proposition 209 of 1996 (also known as the California Civil Rights Initiative or CCRI). (ACA 5 Webber)
  • Proposition 17: Constitutional amendment allowing felony parolees to vote. (ACA 6 McCarthy)
  • Proposition 18: Constitutional amendment allowing 17-year-olds to vote in primaries and special elections if they are 18 for the general election. (ACA4 Mullin)
  • Proposition 19: Constitutional amendment allowing elderly and disabled Californians, and wildfire victims, to retain lower property tax rates when they change properties. (ACA 11 Mullin)
  • Proposition 20: Rolls back sentencing and parole reforms enacted via Propositions 47 and 57. (Initiative)
  • Proposition 21: Removes statewide constraint on local governments enacting rent control. (Initiative)
  • Proposition 22: Allows gig tech companies like Uber and DoorDash to continue classifying their drivers/delivery people as independent contractors. (Initiative)
  • Proposition 23: Authorizes new regulation of kidney dialysis clinics, including staffing requirements. (Initiative)
  • Proposition 24: Expands California’s online consumer privacy law. (Initiative)
  • Proposition 25: Referendum to overturn California’s prohibition on cash bail. (Initiative)
There was an exciting political drama associated with ACA 11 (Prop 19). The California Association of Realtors qualified an initiative altering property taxation and then agreed to withdraw it to make way for a compromise constitutional amendment — but the group wrote Secretary of State Alex Padilla’s office that it would only pull its prior measure on the condition that the Legislature passed ACA 11.

After an official in Padilla’s office acceded to that request, Assembly Speaker Rendon wrote to Padilla’s office that it had no authority to do so — and Rendon argued that the first measure had to remain on the ballot. Padilla sided with CAR over Rendon by removing a measure previously passed by the Realtors despite Rendon asserting he could not do so. Since then – at least two bills have been amended to outlaw the practice of “contingent withdrawal.”
And proving the adage that politics make strange bedfellows – a bill that exempts solar farms from the split-roll ballot initiative (Prop 15) won’t be heard until the Assembly returns from their well-deserved summer vacation in mid-July, with sources pointing to behind-the-scenes drama driving the delay.

AB 105 (Ting D-San Francisco) was “gut and amended” last week as an agreement between the solar industry and Prop 15 backers on how solar farms would be treated were voters to approve the initiative this fall. Despite being packaged with budget trailer bills, AB 105 didn’t advance as the Legislature moved fiscal measures to Gov. Gavin Newsom’s desk. [As an aside – Assembly Member Ting is in a bit of a personal mess; see article]

Solar energy advocates warn they will reconsider supporting the marquee split-roll proposal if the “solar fix” bill isn’t passed quickly. Legislative sources that AB 105 stayed in the Legislature because the measure deals with policy issues, rather than fiscal ones and lawmakers generally wanted to keep the two separate. However, the measure became collateral in an unrelated dispute over the natural resources trailer bill, AB 92. The sources said Scott Wetch, a longtime labor lobbyist, threatened to kill the solar-related AB 105 if the resources bill, AB 92, kept language that reinforced the state’s permitting authority over energy projects that also require federal approval. One of those is the contested Eagle Mountain hydropower venture that would be built outside Joshua Tree National Park. The threat by Wetch didn’t end up affecting the resources trailer bill, however. The Assembly on Friday passed AB 92 with the permitting language still included, sending it to Newsom for his expected signature. AB 105, the solar fix to the split-roll initiative, was referred Friday to the Assembly Revenue and Taxation Committee, which hasn’t set a hearing on the bill. It will eventually have to clear the full Assembly before going to Newsom. The chamber returns from recess on July 13. An insider said solar farms would be harder to finance if AB 105 isn’t eventually passed, which in turn could make the solar industry change its position on supporting split-roll because the initiative’s current provisions would apply a tax hike to existing solar farms — which are already excluded from 1978’s Proposition 13 that split-roll backers want to reform. Solar advocates and split-roll supporters have previously agreed to exempt existing solar farms from the initiative’s tax hike.

On to measures moving:

AB 5 Fix

AB 1850 (Gonzalez D-San Diego) exempts from the “ABC test” for employment status certain occupations such as musicians, insurance inspectors and competition judges, appraisers, and certain master teachers. This bill also revises the freelancer exemption and recasts the exemption for referral agencies. Approved by Assembly (Y:76 N:0 A:3)

SB 795 (Beall D-San Jose) allocates $2 billion to several existing housing, homelessness, and pre-apprenticeship programs, as well as creating two new infrastructure financing programs at the Governor’s Office of Business and Economic Development (Go-Biz). Gives $8 million to union-sponsored construction pre-apprenticeship programs. Approved by Senate (Y:29 N:10 A:1)
Business Issues
AB 2471 (Maienschein RD-San Diego) provides senior citizens an additional two days to review, evaluate, and possibly rescind specific contracts (including home improvement contracts) that are associated with increased risk of unfair business practices. Approved by Assembly (Y:78 N:0 A:1)

AB 3254 (Limón D-Santa Barbara) requires that people who will be cosigning certain contracts, negotiated primarily in the Spanish, Chinese, Tagalog, Vietnamese, or Korean languages, receive translated copies of those contracts to review before they sign. Approved by Assembly (Y:75 N:0 A:4)

SB 939 (Wiener D-San Francisco) would have established, for all commercial tenants, a temporary moratorium on evictions for the duration of the COVID-19 related state of emergency, and a yearlong period in which to make up rental payments missed during that state of emergency. Died in Senate Appropriations Committee

AB 3279 (Friedman D-Glendale) revises CEQA litigation procedures by (a) reducing the deadline for a court to commence hearings from one year to 270 days, (b) allowing a lead agency to decide whether a plaintiff prepares the administrative record, and (c) authorizing a court to issue an interlocutory remand. It is opposed by the Sierra Club and State Building and Construction Trades Council but was approved by Assembly (Y:64 N:2 A:13) Amendments are expected in the Senate.

SB 974 (Hurtado D-Sanger) Exempts from CEQA projects that primarily benefit a small disadvantaged community water system by improving the water system’s water quality, water supply, or water supply reliability; by encouraging water conservation; or by providing drinking water service to existing residences within a disadvantaged community where there is evidence of contaminated or depleted drinking water wells. It was larded up with State Building and Construction Trades Council language at the last minute. You can watch the floor presentation here. Senate approved (Y:33 N:6 A:1)

SB 995 (Atkins D-San Diego)Extends for four years the Jobs and Economic Improvement Through Environmental Leadership Act of 2011 (AB 900) until 2025. It makes housing projects that meet specific requirements, including specified affordable housing requirements, eligible for certification under the Act. Amended to appease BTs Passed by Senate 32:4:4 Senator Scott Wilk (R-Santa Clarita) who is in a tight race voiced support for CWTAs on the floor – video here. Senator John Moorlach spoke in opposition (Video here).

SB 899 (Wiener D-San Francisco) Provides that housing is a use by right on land owned on or before January 1, 2020, by a religious institution or nonprofit college if the development meets all of a variety of criteria. Passed by Senate 39:0:1 despite BT opposition (and advertising campaign that was pulled), Beall called Wiener out on the floor for not protecting workers (video here).

Labor Law
AB 1947 (Kalra D) Doubles, from 6 months to one year, the time in which a person who believes that they have been discharged or otherwise discriminated against to file a complaint with the DLSE. Also, AB 1947 overturns the existing balance by prohibiting an employer from recovering its attorney’s fees, which could create an incentive for more potentially frivolous litigation. Approved by Assembly (Y:46 N:23 A:10) (P)

AB 3075 (Gonzalez D) Allows interference with corporate formation based on arbitrary, unclear, and unfair standards. The bill would also result in chaotic and inconsistent enforcement of wage and hour laws by local jurisdictions by authorizing them to impose their wage payment requirements as long as they are “at least as stringent” as state law requirements. CalChamber “Job Killer.” Approved by Assembly (Y:53 N:19 A:7) (P)

AB 3216 (Kalra D) Provides for unlimited job-protected leave for all employees of employers of any size for family and medical leave due to COVID-19. This new mandate is in addition to numerous COVID-19 leave requirements recently enacted at the federal, state, and local levels. The bill creates additional burdens on California employers at a time they can least afford it. CalChamber “Job Killer.” Approved by Assembly (Y:44 N:17 A:18) (P)

AB 2210 (Aguiar-Curry D) Allows the CSLB to discipline tree work contractors without serious injury and extends the time from 180 days to 18 months for CSLB to commence an action based upon an OSHA complaint. Sponsored by CSLB Approved by Assembly (Y:76 N:0 A:3) (P)

AB 2232 (Grayson D) Sponsored by CSLB - This bill requires the CSLB to grant retroactive license renewals if certain conditions are met. Approved by Assembly (Y:76 N:0 A:3) (P)

AB 3087 (Brough R-Dana Point) authorizes the CSLB to contract with a public or private organization to administer its licensing examinations and to contract for materials and services related to the exams. Approved by Assembly (Y:76 N:0 A:3)

SB 1189 (McGuire D) authorizes the B-2 Remodeling License, makes home improvement contract laws applicable to disaster rebuilds. CSLB sponsored. Approved by Senate (Y:39 N:0 A:1) (P)

AB 2570 (Stone, Mark D) This bill will introduce private attorneys into tax enforcement by amending the False Claims Act (a legal tool applied outside the tax world) to also apply to tax statements. In short – PAGA for taxes. In addition to bringing in private attorneys, it will also create conflicts with existing tax law, which, for some reason, the author has simply refused to correct. This bill will lead to frivolous, abusive litigation targeted at successful California businesses, as has occurred with litigation under the Americans with Disabilities Act and California’s Proposition 65. Approved by Assembly (Y:44 N:20 A:15) (P)

Public Works
AB 2231 (Kalra D) This bill defines a public subsidy as “de minimis” to pay the prevailing wage in public works projects if the support is both less than $500,000 and less than 2% of the total project cost. For single-family homes, a public subsidy is de minimis if it is less than 2% of the total project cost. This standard will apply for bids advertised or contracts awarded after July 1, 2021. This bill is like AB 520 (Kalra), of the 2019-20 Legislative Session, which was vetoed by Governor Newsom. Approved by Assembly (Y:57 N:15 A:7) (P)

AB 2765 (O’Donnell D) This bill expands the definition of “public works” to include any construction, alteration, demolition, installation or repair work done under private contract on a project for a charter school when that project is paid for, in whole or in part, with the proceeds of conduit revenue bonds issued on or after January 1, 2021. AB 1613 (O’Donnell), of the 2019-20 Legislative Session, proposed language identical to this bill. The Governor vetoed the bill. Approved by Assembly (Y:61 N:15 A:3) (P)

AB 2311 (Low D) Public contracts: skilled and trained workforce requirement: notice. This bill requires a public entity to include in all documents and contracts a notification that a project is subject to the skilled-and-trained workforce requirement, when applicable. Approved by Assembly (Y:76 N:0 A:3) (P)

AB 398 (Chu D) COVID-19 Local Government and School Recovery and Relief Act. Previously relating to visual and performing arts, it was gutted and amended May 27 to impose instead a $275-per-employee tax on companies that employ 500 or more workers who perform any part of their job duties within California. Revenue from the tax would go into the newly created COVID-19 Local Government and School Recovery and Relief Fund to be used by local jurisdictions and schools. Vote: Two-Thirds (Tax Increase)

Workforce Development
SB 1103 (Hurtado D) SB 1103 would (1) require the California Workforce Development Board (CWDB) to establish and administer a supportive services program to provide grants to consortia that would provide supportive services necessary to enable low-income individuals to participate in High Road Training Partnership programs successfully, and (2) direct CWDB to develop additional High Road Training Partnerships programs to address the displacement of workers, including southern Central Valley farmworkers, and disconnected/at-risk youth. Approved by Senate (Y:32 N:4 A:4) (P)
Last Appeal Denied The Last Appeal statues of Queen Isabella and Christopher Columbus in the Capitol Rotunda was removed last week, to be returned to the donor's descendants (if they want it). Now it will only be a memory of those of us who used to pitch pennies on the last night of session from the second floor, aiming to the Queen's crown. The CHP halted that practice several years ago as the Queen's crown was eroding. More