Thursday, May 26, 2022

California/OSHA – Updates for Employers The linked article summarizes recent updates from California/OSHA that employers should understand, monitor, and follow, as applicable. Story
1.     Revised COVID-19 ETS (Effective until December 31, 2022)
2.     Protect Employees from Outdoor Heat
3.     SB 606 Has Expanded OSHA’s Enforcement Authority (Effective January 1, 2022)
4.     Proposed Workplace Violence Prevention Standard for All Industries

And because it is just too easy to be a California employer, California Supreme Court Allows Employees to Seek Derivative Penalties for Meal and Rest Break Violations On May 23, the California Supreme Court issued an opinion that will drastically increase the potential exposure for employers facing meal and rest break class actions. The court, in Naranjo v. Spectrum Security Services, Inc., ruled that employees who are entitled to meal or rest period premiums for denial of compliant meal or rest breaks may now recover derivative waiting time penalties and wage statement penalties previously reserved for nonpayment of traditional wages, such as minimum wage or overtime wages. The article includes some key takeaways from the court’s decision. Story

California Court Decries CEQA Abuse: "Something Is Very Wrong with This Picture" In its stunning opinion delivered on May 12 in Tiburon Open Space Committee v. County of Marin the First District of the California Court of Appeal upheld Marin County's approval of a 43-unit residential project following decades of "not in my backyard" (NIMBY) obstruction, governmental recalcitrance, and multiple court challenges. In so holding, the Court zealously denounced "official hostility" from "two levels of local government" and NIMBY litigation tactics aimed at preventing construction of much-needed housing during a statewide housing crisis. The ultimate impact of Tiburon Open Space Committee remains to be seen, but it has the potential to cast a long shadow. As acknowledged by the Court, "CEQA lawsuit abuse is worsening California's housing crisis. … Something is very wrong with this picture." Hopefully, the Court's forceful affirmation that CEQA is subordinate to state laws limiting the discretionary authority of local agencies to deny or pare the density of compliant housing projects will reduce opportunities to leverage CEQA as an "instrument for the oppression and delay" that has "become its own reward for project opponents." After all, as this important case makes clear, "CEQA is not meant to cause paralysis." Story

California technology company Sendoso to relocate HQ to Phoenix, bring 1,000 jobs A direct mail software startup is investing more than $40 million to relocate its headquarters to the Phoenix area from San Francisco. Last year, Sendoso signed a lease for nearly 60,000 square feet at The Grove, which is located at 4300 E. Camelback Road in the Arcadia area in Phoenix. (Story)

For the first time since 1964, there's no statewide initiative on California's primary ballot The June 7 California primary ballot won’t feature any state ballot measures for the first time since 1964. This year's lack of measures follows a decline in primary ballot initiatives—last year, one proposition was on the primary ballot. Based on decades, the average has declined over time, with an average of 11 on primary ballots in the 1970s and 1980s, 10 in the 1990s, seven in the 2000s, and three in the 2010s. One contributing factor to the decline could be Senate Bill 202, which California lawmakers approved in 2011. SB 202 required citizen-initiated ballot measures be placed only on the November general election ballot. Since SB 202's passage, only legislatively referred ballot measures can appear on primary ballots. The state legislature did not place any such measures on the June primary ballot. However, there are several local measures to be decided on primary day—90 to be exact. There are currently four citizen-initiated measures that qualified for the statewide ballot in November and several more are expected to file signatures ahead of the June 30 signature verification deadline. Legislators also have until June 30 to refer measures to the November ballot. Since 2010, there have been an average of 10 measures decided at the general election—nine citizen-initiated measures and two legislative referrals.

The 8 largest OSHA fines of Q1 2022 The eight contractors who faced the heftiest OSHA fines in the first quarter of 2022 received citations worth hundreds of thousands of dollars, with one eclipsing $1 million. For violations ranging from fall hazards to unsafe trenches, read here about the largest fines OSHA issued in Q1 2022. Obviously, states like Arizona and California who have delegated authority are not in this list, but it illustrates where OSHA is focused.

On a related note… Feds may strip Arizona of OSHA delegation The U.S. Occupational Safety and Health Administration announced recently that it is considering revoking Arizona’s ability to regulate its own workplace safety rules, saying the state has “routinely failed” to protect workers in the past decade. OSHA released a proposal outlining its reasons for stripping oversight authority from the Industrial Commission of Arizona, which oversees the state’s safety plan. OSHA said Arizona has failed to adopt adequate maximum penalty levels and occupational safety and health standards, among other deficiencies. I recently chatted with Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety and Health about the move. Parker previously served in the Obama Administration as Deputy Assistant Secretary for Policy in the Department of Labor’s Mine Safety and Health Administration and was a member of the Biden-Harris transition team focused on worker health and safety issues. He said the state would be given an opportunity to address OSHA’s concerns and improve their enforcement efforts. Story

Judge strikes down California corporate gender diversity law A Los Angeles judge struck down the California law requiring more women on corporate boards in the latest legal blow to the state's efforts to mandate more diversity in the business world. Los Angeles Superior Court Judge Maureen Duffy-Lewis rejected the law in a case brought by the conservative group Judicial Watch who sued to block SB 826, which the state Legislature passed in 2018, arguing its enforcement would be an unconstitutional use of taxpayer funds. Courts have repeatedly thwarted California's efforts to reshape who wields power in corporate America. Last month a judge struck down a similar law that directed publicly traded companies to have more board members from underrepresented groups like people of color or LGBTQ people. Lawmakers pushed the bill requiring publicly held corporations headquartered in California to include more women on their boards to diversify a male-dominated sphere of executives. California estimated in March only a fraction of the companies that fell under the measure's purview had reported complying with the law. And the measure was widely expected to face court challenges — a hurdle that then-Gov. Jerry Brown pointed to when he signed the bill in 2018 despite what he called serious legal concerns. “I don’t minimize the potential flaws that indeed may prove fatal to its ultimate implementation,” Brown wrote at the time. But, he added, “recent events in Washington, D.C. make it crystal clear that many are not getting the message” — an apparent reference to the #MeToo movement and sexual misconduct allegations against Supreme Court Justice Brett Kavanaugh. [Politico] The California Secretary of State has announced that she has directed counsel to file an appeal of the May 13 verdict of the Los Angeles Superior Court in Crest v. Padilla, which ruled unconstitutional SB 826, California’s board gender diversity statute. [Cooley LLP]

The COVID-19 Regulation’s Final Re-Adoption – What Does it Mean Going Forward? It has been almost a month since the third (and final) readoption of the COVID-19 Workplace Emergency Temporary Standard (ETS) was adopted at Cal/OSHA’s April meeting. Now that the third re-adoption is done, there are three big picture things to keep in mind as we look to the future of COVID-19 workplace safety. Story

California public unions pump $1.2 million into Tony Thurmond’s campaign in May. California teachers and school employees’ unions have pumped $1.2 million into State Superintendent of Public Instruction Tony Thurmond’s re-election campaign since the beginning of May, including:
·        $500,000 donated by the California Teachers Association
·        $200,000 donated by the California Federation of Teachers
·        $500,000 donated by the California School Employees Association

?Read Edward Ring’s article, Tony Thurmond - Public Sector Union Operative.

'Any Person' May File Unfair Labor Practice Charges with the NLRB Some good, some bad… In a recent decision, the United States Court of Appeals for the Third Circuit denied enforcement of an order of the NLRB and held that an employer’s tweet to employees during a union election campaign did not constitute an unfair labor practice. But the court rejected an employer claim and reaffirmed that the Act does not require the party filing the charge to show that it was aggrieved by the alleged unfair labor practice. Story

Lithium resources in the top 5 states could satisfy worldwide California is in top 5! That’s why IBEW wants PLAs on lithium production.



New data from The Nature Conservancy shows the U.S. would be able to make serious inroads in obtaining lithium to achieve energy goals and weaning off foreign dependency by extracting the mineral within our own borders. According to the U.S. Geological Survey, Nevada alone has 8.5 million metric tons of lithium – enough to meet global demand for 85 years. California has another million tons. Lithium resources in the top five states – Nevada, California, Arkansas, North Carolina and Utah – would meet the world’s needs for more than a century based on current global demand and market conditions. And it may be needed as the energy transition accelerates. Global demand for lithium is projected to skyrocket to up to 40 times what it is today by 2040. [Politico]

Contractors' group says it will sue UC Davis over project labor agreements A coalition of non-union contractors is planning to sue the University of California Davis over the use of project labor agreements for some of its recent high-profile projects. A group called the Coalition for Fair Employment in Construction held a news conference Wednesday announcing its intention to file suit against UC Davis over its use of project labor agreements for major projects like the $1.2 billion Aggie Square, its $3.8 billion California Tower hospital tower replacement and its new $579 million ambulatory surgical center. Non-union contractors argue that, in effect, project labor agreements exclude them from competitively bidding on projects by requiring they use union labor. Story

Fourth time isn't the charm in attempt to create Calif. gas tax holiday: For the fourth time in as many months, California Republicans in the state legislature sought to force a vote on perhaps the sole version of gas tax relief eschewed by Gov. Gavin Newsom and Democratic legislative leaders: a one-year gas tax holiday. The argument against suspending the gas tax, as laid out by Assembly Speaker Anthony Rendon (D–Paramount) and even House Speaker Nancy Pelosi (D–San Francisco) can be summed up as centering on distrust that the paused gas tax cost savings would not be passed down to the consumer. Wednesday, however, GOPers in the legislature tried a different tactic by forcing a vote on a Democratic-led bill (Assembly Bill 2457) that would not only halt the gas tax for a year, but also levy hefty penalties to oil firms that failed to pass along savings. Story

Interest Costs Rise Sharply in Latest CBO Report The Congressional Budget Office (CBO) released its first set of budget and economic projections since July 2021. This is the first report since the Federal Reserve began a period of monetary tightening to curb inflation, and it shows sharply higher interest cost projections in the budget outlook. While this year’s deficit looks much better primarily due to the expiration of pandemic relief programs, CBO projects that the deficit will soon begin to climb again. Overall, the report indicates that the nation remains on an unsustainable fiscal trajectory due to a structural mismatch between spending and revenues. The report includes some key takeaways. Story

Signatures have been submitted and are pending verification for six initiatives in California:

• California $18 Minimum Wage Initiative
• California Art and Music K-12 Education Funding Initiative
• California Dialysis Clinic Requirements Initiative
• California Legalize Sports Betting and Revenue for Homelessness Prevention Fund Initiative
• California Pandemic Early Detection and Prevention Institute Initiative
• California Tax on Income Above $2 Million for Zero-Emissions Vehicles and Wildfire Prevention Initiative