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Thursday, May 16, 2019   Labor Law and Recent Court Decisions

Ninth Circuit: "Access Regulation" Allowing Union Organizing Activities on Employers' Private Property is Not a Fifth Amendment Taking. On May 8, 2019, in Cedar Point Nursery v. Shiroma, __ F.3d __ (Case No. 16-16321) (2019), a 2-1 Ninth Circuit panel majority held that a California regulation allowing union organizers access to agricultural employees on employers' private property, to communicate about union organization under certain limited circumstances, is not a Fifth Amendment taking. The plaintiffs alleged that the United Farm Workers union disrupted work by moving through their trim sheds with bullhorns, distracting and intimidating workers, and violated the access regulation by failing to provide the required written notice before taking access. Should the aggrieved plaintiffs in the case file a petition for writ of certiorari, the Supreme Court would have a unique opportunity to finally make clear that private property rights are not the second-class rights the case law often reveals them to be. More
In Expansive Decision, Ninth Circuit Rules Dynamex Applies Retroactively In Vazquez v. Jan-Pro Franchising, the Ninth Circuit made several impactful findings related to the infamous Dynamex decision:
  1. Aligning with several state court decisions supporting retroactivity, the Ninth Circuit ruled that Dynamex's ABC test applies retroactively.
  2. It also applied Dynamex to a multi-level franchise structure, expanding the test beyond the independent contractor context.
  3. Last, the Court issued guidance to the district court on remand reaffirming the difficulty of "passing" the ABC test
Given the current legal landscape, companies engaging independent contractors and other non-employee workers in California should consider risk mitigation measures. More

SCOTUS Strikes Another Blow to Class-Action Claims, Favoring Individual Arbitration A divided United States Supreme Court recently handed down the latest in a series of wins for employers, manufacturers, retailers, and other businesses looking to use arbitration as a means to mitigate the risks of possible class-action litigation. This time, in Lamps Plus, Inc. v. Varela, the Supreme Court overturned the Ninth Circuit Court of Appeals, finding that an employer could not be compelled to arbitrate similar claims by its employees on a class-wide basis, even though its employment agreement was ambiguous as to whether the arbitration of similar claims be conducted on a class-wide basis, instead of individually. More

Thursday, May 16, 2019   What We're Reading and Watching (Aside from Game of Thrones)

The Oakland A's plan to build a new stadium along the waterfront and leave the Coliseum got a big boost Monday from Commissioners who oversee the Port of Oakland. Commissioners signed off on a deal that would let the ball club perform environmental studies and seek permits to build the privately financed ballpark at Howard Terminal. Story Assemblyman Rob Bonta is author of  AB 1191 that would facilitate a land swap to allow the project. His bill authorizes the State Lands Commission (SLC) to enter into a land exchange for the Howard Terminal Property in the City of Oakland. This bill declares provisions do not limit the authority of the San Francisco Bay Conservation and Development Commission (BCDC) to review any project at the Howard Terminal Property.

Sacramento County supervisors approved a fee plan that would allow development on thousands of acres to get underway. The proposed fee structure, which would require two Board of Supervisors approvals, would charge $26,625 for each housing unit built in a zoned density of five per acre, $17,889 for units built in a zoned density of 20 units per acres, and $29.55 per square foot for commercial developments. Story

Newsom Budget Includes Bold Spending, Fiscal Guardrails Five months into his first term as California governor, and a week ahead of schedule, Governor Gavin Newsom rolled out his "May Revise" budget. The May Revise reflects state revenue projections based on tax receipts and spending adjustments from the governor's January budget proposal, taking into account projected revenues. While the May Revise proposes an expansion of funding in many areas, including education, healthcare and public safety, Governor Newsom strikes a cautionary tone and a mindful approach to the likelihood of a potential recession. More

Repair of Fractured Girders Complete at Shuttered Salesforce Transit Center The repair of two fractured girders spanning Fremont Street and the reinforcement of twin girders spanning First Street are complete at the beleaguered Salesforce Transit Center in San Francisco. More

Weakling or bully? The battle over CEQA, the state's iconic environmental law Inside the Capitol's corridors and pro-development quarters around the state, CEQA is increasingly disparaged as a villain in the state's housing crisis. It's characterized as a litigation lever that allows citizens-and even labor unions and business rivals-to sue or threaten to sue, obstructing direly needed housing projects on thin environmental pretenses. The Legislature is considering a handful of bills to loosen CEQA's rules, something former Gov. Jerry Brown-often stymied in his modest efforts to do so-labeled "the Lord's work." New Gov. Gavin Newsom, to fulfill his hyper-ambitious quota of new housing construction, has called for fast-tracking judicial CEQA review of housing, similar to that granted sports teams building stadiums. The politically potent State Building and Construction Trades Council signed a January letter defending CEQA, although it's been negotiating on a housing plan that could include CEQA relaxations. More

Former manager of $3.3B school construction bond in California files whistleblower complaint The fired manager of the Los Angeles Community College District's $3.3 billion construction bond program has filed a whistleblower complaint, claiming that he was let go in retaliation for publicly raising questions about management and other problems with the program, the Los Angeles Times reported. More

Equal Protection Eight home health care workers sued the Trump administration in the Northern District of California to block a new rule that bars their union, SEIU, from deducting dues from their Medicaid paychecks automatically. The lawsuit follows another challenge Monday by five Democratic attorneys general. The rule is set to take effect in July. The workers in the case argue that the new federal rule violates their First Amendment right to free association and the Constitution's Equal Protection Clause. "It's outrageous that home care workers like me are being singled out," said Camille Christian, a home care worker from Alameda, California. "This rule tries to prevent us from using payroll deduction for any purpose, even to contribute to our healthcare or for transportation costs or to support our union. How would you feel if the government told you how to spend your wages?" I wonder if SEIU would side with us on our suit alleging an equal protection claim against SB 954?

Thursday, May 16, 2019   Thought


Richard Markuson

PAGA Reform Dead Again

I was just reading a recent appeals court case (Savea v. YRC, Inc., 2019 WL 1552686, Cal. Ct. App. 2019). In this case, Vaiula Savea sued his employer (henceforth referred to as YRC) for an alleged violation of Labor Code § 226. The violation is based upon YRC's alleged failure to include the correct employer name and address on wage statements. These alleged violations arose from YRC's listing its fictitious business name (YRC Freight) on its wage statements.
Furthermore, the complaint alleged that the employer address did not contain a reference to the applicable mail stop code or the ZIP+4 code. YRC successfully demurred to the complaint on the grounds that Savea's complaint failed to state a claim because the employer name and address on its wage statements were, in fact, accurate. The Court of Appeals affirmed dismissal of the complaint, holding that YRC's use of its "actual, recorded fictitious business name" on the wage statements was proper and that the address listed on the wage statements did not need to include the mail stop code or the ZIP+4 code.
After contemplating some special future eternal resting place for the attorney who decided that the lack of a ZIP+4 code was grounds for a lawsuit, I thought I would update readers on how the Legislature is addressing this scourge. Below is the list of accomplishments this year:
  • Pretty impressive, right?

However, here is what they haven't acted upon:
  • AB 443 (Flora R) would limit attorney's fees in connection with an action for a violation of the wage information requirements under PAGA. AB 443 - which did not receive a hearing - would have capped attorney's fees at 25 percent (the pain, the pain!).
  • AB 789 (Flora R) would have required, for an action under PAGA to recover for any violation of the itemized wage statement requirement, that an employee or representative give prescribed notice of the alleged violation to the employer. The bill would have authorized an employer to cure the alleged violation within 65 calendar days of the postmark date of the notice. The bill would have allowed an action to commence only if the alleged violation is not cured within that period. Further, the bill would have exempted certain violations from these notice and cure provisions (if the employer had not paid the aggrieved employee or provided a wage statement).
These modest improvements could not obtain "labor" sign off, so the Democrats refused to hold a hearing.
However, a WECA-supported group is making headway. A judge handed the California Business and Industrial Alliance (CABIA) its first win in March when he denied Attorney General Xavier Becerra's attempt to dismiss CABIA's lawsuit challenging California's PAGA statute. Orange County Superior Court Judge Peter Wilson found that CABIA has standing to bring claims on behalf of its business-owner members challenging the constitutionality of PAGA, a state law that deputizes workers to bring claims against employers believed to be violating state labor laws. Like the one above - citing the lack of a ZIP+4 code. More

Thursday, May 02, 2019   Bill Update


AB 356 (Santiago - D) Authorizes the Los Angeles Community College District (LACCD) to utilize a best-value procurement process as a pilot project until January 1, 2025, for construction projects over $1 million dollars. The bill contains provisions that allow a contractor under a project labor agreement to be presumed to meet the requirements of using a skilled and trained workforce. Watch
AB 695 (Medina - D) Extends the sunset on community college districts' (CCDs') authority to enter into design-build public works contracts and adopts the same "skilled and trained workforce" requirements applicable to the design-build authority of state agencies and local governments.
SB 743 (Hertzberg - D) This bill would specify that LAUSD, entering into a design-build contract for projects that are subject to project labor agreements retains the discretion to take specified actions related to the contract.

AB 186 (Cervantes - D) Provides a tax credit of up to $1,000 for each registered apprentice trained by the taxpayer in the taxable year that meets one of the following: has not obtained a high school diploma and is enrolled in high school or a General Education Development (GED) test preparation program; or, has obtained a high school diploma or GED credential while participating in the apprenticeship Support
AB 595 (Medina - D) Sponsored by Faculty Association of California Community Colleges (FACCC), this measure seeks to allow the use of ITINs in lieu of SSNs (for students who are ineligible for a SSN), for the purpose of any mandatory background checks that are required for participation in a class or apprenticeship and/or internship program.

AB 1019 (Frazier - D) This bill would add to the ex officio members of the Interagency Advisory Committee on Apprenticeship, the Director of Rehabilitation and the chair of the State Council on Developmental Disabilities. The bill would require the committee to create a subcommittee to address apprenticeship for the developmentally disabled community. The bill would add that it is the intent of the Legislature that the department will encourage greater participation for the developmentally disabled in apprenticeship and pre-apprenticeship programs. Support
AB 1558 (Ramos - D) Would require school districts and schools to notify apprenticeship programs of career and college fairs at least two weeks before the fair. It would require career and college fairs to provide apprenticeship programs an adequate amount of space to apprenticeship programs and the same amount of resources provided to other invited groups. The bill would require apprenticeship programs to annually provide school districts within their geographic region a point of contact, phone number, email address, operating location, and purpose of the apprenticeship program. Support

Business Issues
SB 210 (Leyva - D)This bill directs the California Air Resources Board (ARB) to work in coordination with multiple state agencies in order to develop and implement a Heavy-Duty Inspection and Maintenance Program for non-gasoline, heavy-duty, on-road trucks.

AB 1191 (Bonta - D) Allows the State Lands Commission to enter into an exchange with the City of Oakland of certain public trust lands, for the future site of the Oakland Athletics Ballpark project. Watch
AB 1673 (Salas - D) Requires plaintiffs in California Environmental Quality Act (CEQA) lawsuits to identify every person or entity who contributed, or committed to contributing, $1,000 or more to support the lawsuit. Support
SB 25 (Caballero - D) Grants accelerated CEQA appeals for certain housing projects. Requires SATWF unless covered by a PLA, exempts contractors under a PLA from completing CPRs. OUA 

Construction Practices

AB 1166 (Levine - D) This bill would require every operator to supply an electronic positive response through the regional notification center before the legal excavation start date and time.

AB 1303 (O'Donnell - D) Makes several changes to the California Career Technical Education Incentive Grant Program, administered by the State Department of Education and provides $450 million for grants. Watch


AB 1144 (Friedman - D) Requires the California Public Utilities Commission (CPUC) to allocate $16.6 million of funding from the Self-Generation Incentive Program (SGIP) to pilot projects to install and evaluate community energy storage systems.
SB 288 (Wiener - D) This bill would require a number of provisions to support the deployment of customer-sited distributed energy resources, specifically energy storage systems, including requiring electric utilities to establish standardized processes to interconnect to the electric grid, requiring new tariffs and compensation to sell stored energy to the grid and into the wholesale electricity market.

AB 168 (Aguiar-Curry - D) Amends SB 35 of last year that authorizes a development proponent to submit an application for a multifamily housing development that is subject to a streamlined, ministerial approval process, to include a requirement that the development not be located on a site that is a tribal cultural resource. Existing law requires payment of prevailing wages and apprentice wages even if the project is not a public works and prohibits the DLSE from enforcing the Labor Code if the Project is covered by a PLA. Waives CPRs on projects covered by a PLA.

Labor Law
AB 5 (Gonzalez - D) AB 5 (Gonzalez)...exempts certain industries/professions (doctors, insurance agents, securities brokers, and direct sellers) from the application of the Dynamex decision. The business community seeks a more progressive and holistic approach to the application of Dynamex that reflects today's modern workforce.
AB 9 (Reyes - D) A coalition of employer organizations, including the California Chamber of Commerce, is opposed unless amended. The coalition requests an amendment regarding the nature of the claims covered and seeks clarity that the bill only applies to prospective claims. They state, "while AB 9 is being promoted as an anti-sexual harassment bill, it actually has a broad, sweeping effect on all employment harassment, discrimination and retaliation complaints. The Fair Employment and Housing Act (FEHA) makes specified employment and housing practices unlawful, including discrimination against or harassment of employees and tenants. Additionally, Title VII of the Civil Rights Act of 1964 makes specific employment practices unlawful under federal law."
AB 403 (Kalra - D) AB 403 incentivizes litigation and provides for a one-sided provision of attorney's fees. California is already widely perceived as having a hostile litigation environment. One factor that contributes to this negative perception is the high award and threat of attorney's fees in civil litigation that often dwarfs the financial recovery the plaintiff actually receives. Oppose

AB 520 (Kalra - D) This bill defines a public subsidy as "de minimis" for the purpose of paying the prevailing wage in public works projects if the subsidy is both less than $275,000 and less than 2% of the total project cost. This standard will apply for bids advertised or contracts awarded after July 1, 2020. Watch
AB 555 (Gonzalez - D) Expands the state's paid sick leave program to provide an employee with no less than 40 hours or five days of sick leave by the 200th calendar day of employment. SIA
SB 530 (Galgiani - D) Would require DLSE to develop recommendations for an industry-specific harassment and discrimination prevention policy and training standard for use by employers in the construction industry. The bill would also require DIR to convene an advisory committee by March 1, 2020, consisting of specified representatives from the construction industry and state agencies to assist the division in developing the policy Watch

SB 610 (Glazer - D) extends the operation of the CSLB to January 1, 2024 requires the board to study and report to the Legislature if the current amount of the contractors' bond requirement is sufficient would require the board to charge C-10 contractors a $20 fee for enforcement Existing law requires, as a condition precedent to the board accepting an application for licensure, renewal, reinstatement, or to change officers or other personnel of record, that an applicant, previously found to have failed or refused to pay a contractor, subcontractor, consumer, materials supplier, or employee based on an unsatisfied final judgment, file or have on file with the board a bond sufficient to guarantee payment of an amount equal to the unsatisfied final judgment or judgments. Under existing law, if a judgment is entered against a licensee, then a qualifying person or personnel of record is prohibited from serving as a qualifying individual or other personnel of record on any license until the judgment is satisfied. This bill would extend that prohibition to when a judgment is entered against any personnel of record. Support

Mechanics liens
AB 1339 (Gabriel - D) This bill would provide that a mechanics lien has priority over a lien, mortgage, deed of trust, or other encumbrance on the work of improvement or the real property on which the work of improvement is situated, that attaches after the date of commencement of the work of improvement.

AB 443 (Flora - R) This bill would limit attorney's fees in connection with an action for a violation of the wage information requirements under PAGA. Support

Public Works
AB 1736 (Daly - D) This bill would require departments and state agencies with an internet website, to post within 24 hours of awarding a construction contract, the name of the successful bidder, the amount of the successful bidder's bid, and the name of listed subcontractors and their subcontract amounts. Support

AB 1177 (Frazier - D) This bill would delete the requirement in SB 35 from last year that a skilled and trained workforce be employed on any project subject to its provisions. Watch
SB 524 (Stern - D) Sponsored by California State Association of Electrical Workers, California State Pipe Trades Council, Western States Council Sheet Metal Workers, this bill requires the CPUC to direct energy efficiency program administrators to ensure that work is performed by a skilled and trained workforce for projects receiving at least $50,000 in ratepayer-funded initiatives within a single facility. Watch

AB 613 (Low - D) Authorizes regulatory boards under the Department of Consumer Affairs (DCA) to adjust their licensing fees once every four years by an amount not to exceed the increase in the California Consumer Price Index (CPI) for the preceding four years, with limitations.
AB 1413 (Gloria - D) Would authorize a local transportation authority to impose a tax applicable to only a portion of its county if 2/3 of the voters voting on the measure within the portion of the county to which the tax would apply vote to approve the tax and other requirements are met, including that the revenues derived from the tax be spent within, or for the benefit of, the portion of the county to which the tax would apply. Would require projects funded by any such tax to use a SATWF unless the project is covered by a PLA.

AB 1066 (Gonzalez - D) Current law makes an employee ineligible for UI benefits if the employee left work because of a trade dispute and specifies that the employee remains ineligible for the duration of the trade dispute. This bill would restore eligibility after the first 2 weeks for an employee who left work because of a trade dispute. Watch

Thursday, May 02, 2019   Thought


Richard Markuson

What's Up, Sacramento?

Last Friday was another in a series of deadlines designed to keep the sausage factory otherwise known as the California State Legislature moving toward its session deadline of September 13th. By last Friday, fiscal bills that have an impact on state revenue or stat costs had to be out of their policy committees in their house of origin. I thought this would be a good time to illustrate some of the bills making their way through the California Legislature.
This year will be substantially different from the recent session for two reasons: the first being that progressive Democrats have a stranglehold on both houses of the Legislature and the second being that Governor Gavin Newsom is expected by many to be a more liberal governor than Jerry Brown was. Therefore, Newsom probably will sign some - if not all - of the bills that Brown would have vetoed in the past.

Thursday, May 02, 2019   What We're Reading

Deal or no deal: PLAs in the construction industry The project labor agreement fight has reached the federal level as unions and private associations plead the case for and against. Story
California contractors plead guilty to $6M fraud, theft The Los Angeles County District Attorney's Office announced April 24 that it has entered into a plea deal with siblings Enrique Vera and Gloria Vera to resolve the construction fraud charges levied against the contracting team in November. Story
Former CAGOP gubernatorial candidate John Cox criticizes Gov. Gavin Newsom in a new op-ed: "Newsom's theatrics make for great national television morning show content and social media click-bait. I think part of his motivation and political strategy is to divert valuable air away from Democratic presidential primary candidates, so that after the president wins reelection in 2020, Newsom is well-positioned for a 2024 run. Regardless of whether you agree with that theory or not, his first 100 days of showmanship has had virtually no positive impact in the lives of actual Californians." Story
How powerful lawmakers are killing bills in California without a peep. Gun control, school spending, curbs on greenhouse gases: With Democrats holding more power at the Capitol than they've had since the 19th century, California's legislative pipeline is full this year with big, blue-state ideas. In theory, no Democrat's bill should be left behind. But that's not what's happening, and the reason is roiling both sides of the aisle in Sacramento. The complaint? Democrats who lead legislative committees are using a powerful tool to kill bills before they even get a vote. The tool? Simply doing nothing. Story
San Diego City Councilman Mark Kersey becomes the latest California Republican to leave the party: "Make no mistake: both parties have plenty of good and decent members. But today's political climate rewards ideologues, not problem-solvers. I ran for office to rebuild San Diego, not localize the debate over federal and state partisan malice." Some of you may recall then Republican Kersey and still Republican San Diego County Supervisor Greg Coxvoted in favor of requiring a PLA on the new terminal at San Diego's Lindberg Field.
"How California's high-speed rail project was 'captured' by costly consultants," by Ralph Vartabedian in the LATimes: "Development of the nation's first high-speed rail line was overseen by a minuscule government staff. Now, more than a decade later, that decision has proved to be a foundational error in the project's execution - a miscalculation that has resulted in the California High-Speed Rail Authority being overly reliant on a network of high-cost consultants who have consistently underestimated the difficulty of the task." Story

Thursday, May 02, 2019   2020 Election

Rep. Eric Swalwell has crossed the three-poll threshold needed to appear in Democratic National Committee's presidential primary debate. The Bay Area congressman has gotten plenty of practice as he proliferated on TV during the Trump era.
Republican Young Kimlaunched her campaign for CA-39 after losing in 2018 to Democrat Rep. Gil Cisneros in the contest for the former Ed Royce seat. She rolled out with the backing of Republican Leader Kevin McCarthy and Royce. The DCCC sought to undermine Kim out of the gate by framing her as the choice of Washington officials, not Orange County voters.
Orange County supervisor Michelle Steel plans to challenge Rep. Harley Roudafor CA 48 House seat in 2020. She told Radio Korea Thursday "that she's been considering a run for CA-48 since the November election. That's when Rouda, D-Laguna Beach, defeated three-decade incumbent Republican Rep. Dana Rohrabacher by 7.2 percentage points." Story
The GOP challenger to U.S. Rep. Katie Porter doesn't live in the district: Should that matter? "And with three more Republican challengers already in the race to challenge Porter, D-Irvine, experts say Peggy Huang's residency could become a real issue for her campaign." Story

Thursday, April 18, 2019   What We're Reading

In Orange County, a small business dream becomes a nightmare Blaine Eastcott's story is the definition of the American Dream. But as a consequence of California's Private Attorneys General Act, his dream may has become a nightmare. Story

100 days in, here's how Gavin Newsom is doing on 10 campaign promises From The Sacramento Bee, "One hundred days into his tenure, California Gov. Gavin Newsom has taken initial steps toward many of promises he made on the campaign trail, from proposing increased funding for homeless services to speeding up firefighting efforts. He's far from accomplishing many of his concrete long-term goals, however, like building 3.5 million new homes and creating half a million apprenticeships. He says he's nevertheless done a lot in his first months in office." On apprenticeship "In his budget proposal, Newsom specified that the state spend $27 million yearly for apprenticeship programs called for under California's cap-and-trade law, which Newsom's predecessor Jerry Brown signed into law in 2017. The apprenticeships would be concentrated in "disadvantaged communities" and draw from funds generated by cap and trade, which makes companies pay to pollute. Newsom's proposal would fund slots for 6,500 people in apprenticeship programs over five years - far short of his stated goal, although he told The Bee that he and his senior advisers are discussing augmenting that proposal." Story

Outrage exhibitionists. From Liz Marlantes, Politics Editor at The Christian Science, "Some people did something." Those four words, spoken by freshman Rep. Ilhan Omar, D-Minn., lie at the heart of Washington's latest outrage du jour. Ms. Omar, a Somali-American, was referring to the attacks of 9/11. She actually made the comments last month, in a speech to a Muslim group, in which she noted that the murderous actions of a few fanatics had had significant consequences for the broader Muslim community in the U.S., as seen in a subsequent rise in harassment and hate crimes. Last week, fellow freshman Rep. Dan Crenshaw, R-Tex., who lost an eye serving in Afghanistan, reacted via tweet: "First Member of Congress to ever describe terrorists who killed thousands of Americans on 9/11 as 'some people who did something,'" he wrote. "Unbelievable." In the ensuring firestorm, The New York Post splashed Ms. Omar's words across its front page, leading some of the city's bodegas (many of which are owned by Yemeni-Americans) to stop selling the paper. After President Donald Trump sent out a video on Twitter juxtaposing her speech with footage of the Twin Towers falling, Ms. Omar called Mr. Trump's tweet "hate speech" and said she had seen an increase in death threats. Ms. Omar's defenders say her remarks were taken out of context and deliberately mis-characterized. They see a cynical effort by Republicans to stoke, for political gain, precisely the kind of Islamophobic sentiment that Ms. Omar was lamenting in her speech. Her critics say that her words, even if unintentional, reveal an inclination to trivialize the attack and whitewash the extremist ideology that inspired the terrorists. They say Democrats who are labeling the criticism of Ms. Omar as "incitement" are attempting to suppress free speech. Neither side, it seems, is willing to give the other the benefit of the doubt.
"Civic conversation in America is dysfunctional in part because we have so many ... outrage exhibitionists," notes Conor Friedersdorf in The Atlantic. "These folks strip inartfully phrased remarks of context, ignoring the speaker's intentions and imputing the least charitable possible meaning. This sets them up to display umbrage with the ostentation of a peacock. Though widely reviled, such displays are nevertheless widespread, on the left and right, as even many strident critics are only bothered when their own tribe is targeted."

Can Private Funding Save High-Speed Rail? Privately backed ventures, like Virgin Trains USA's Florida project, could help expand high-speed rail in the United States, according to a new report from analysts at Fitch. Virgin's so-far successful expansion to Orlando gives more credibility to private passenger rail projects, the report says. That's especially relevant given the high-profile failure of the government-funded high-speed rail project in California. But "significant challenges," including the lack of precedent for similar projects, political opposition and land rights issues, will continue for the private companies looking to fill the void. Virgin is also planning a route between Los Angeles and Las Vegas, and Texas Central is looking to develop passenger rail between Houston and Dallas (although the latter has been struck legal blows over eminent domain questions in recent months).

Unions Put Port Driverless Vehicles on Hold In LA: "The Port of Los Angeles' Harbor Commission delayed a decision Tuesday over whether to approve a permit that would open the way to automation in North America's largest terminal," following a protest of 1,200 dockworkers, Margot Roosevelt reports for the Los Angeles Times. It was the second delay requested by Mayor Eric Garcetti on a "controversial" construction permit for shipping firm Maersk "to replace about 100 diesel tractors, which are operated by members of the International Longshore and Warehouse Union, with driverless electric vehicles, potentially eliminating hundreds of jobs.... If Maersk is allowed to automate, the rest of the port complex's 13 terminals will probably follow suit, the union contends." In related news, the ILWU is encouraging the prohibition of shipping containers.

Murray, Kaine Press For Epstein Report: Sens. Patty Murray (D-Wash.) and Tim Kaine(D-Va.) on Friday "asked the Justice Department to release findings from an investigation into Labor Secretary Alexander Acosta's role in brokering a 2008 plea deal for billionaire pedophile Jeffrey Epstein," POLITICO's Ian Kullgren reports. "In a letter to the DOJ's Office of Professional Responsibility, the senators asked investigators to 'publish all of its findings without delay' when the review is complete."

Amazon's Fight For $15: Amazon CEO Jeff Bezos urged competitors to match the online superstore's $15 hourly minimum wage plus benefits in a letter to shareholders Thursday, even as those same companies struggle to catch up with Amazon's sales. "I challenge our top retail competitors (you know who you are!) to match our employee benefits and our $15 minimum wage," Bezos said in the letter, according to the Washington Post (which Bezos owns). "Do it! Better yet, go to $16 and throw the gauntlet back at us. It's a kind of competition that will benefit everyone." Amazon boosted its wage minimum in November (although it also slashed warehouse workers' bonuses and stock option benefits). The letter drew some shade from Walmart Executive Vice President of Corporate Affairs Dan Bartlett, who tweeted Thursday morning: "Hey retail competitors out there (you know who you are) how about paying your taxes?" The tweet linked to a Feb. 16 news report by Yahoo! Finance that Amazon paid no federal income tax in 2017 or 2018. Bartlett added : "FWIW, the vast majority of our warehouse associates have been making more than $15 for a long time. And they still get quarterly performance bonuses."

Commentary: Why San Diego Airport PLA discriminates against non-union workers On April 4, less than 36 hours after a three-page staff report was released giving the rationale for the decision, the San Diego County Regional Airport Authority board voted 5-3 to place the new $3 billion Terminal 1 project under a union-only Project Labor Agreement (PLA). Despite a roomful of construction workers, apprentices, contractors and contractor association members opposing this blatantly discriminatory "agreement," the PLA was approved after less than 180 minutes of discussion.
This stood in contrast to the thoughtful weeks-long approach that the board took in 2009, which saw a workshop on the issue followed by a 20-page staff report that helped lead to a unanimous vote against a PLA on the $1 billion Terminal 2 "Green Build" project, a project built on time, on budget and with 85% of the workers being local.
So what changed in 10 years? Story 

Thursday, April 18, 2019   Thought



Richard Markuson

Misguided Effort to Manipulate Economy

Assemblyman Marc Levine - who represents Marin County and parts of Sonoma County - is one of the nicer members of the State Assembly due to his willingness to discuss policy, even those where he might be diametrically opposed. He has authored 32 bills in 2019 that deal with a broad range of topics - from the death penalty to coastal resources to residential care facilities. But one bill in particular stands out and has garnered membership in the elite "Job Killer" list of the California Chamber of Commerce.

The current list includes 24 bills that would "harm California's economic growth and job creation should they become law", according to the above-linked article. CalChamber president Allan Zaremberg says, "these bills represent some of the worst policy proposals affecting California employers and our economy currently being being considered by Legislature. Some of these bills have been rejected time and again by the Legislature or vetoed by the previous governor. Legislators should, instead, focus on removing impediments to economic growth and creating upward mobility for all Californians."
Senator Hanna Beth Jackson (D-Santa Barbara) leads with three bills on the list. As you may recall, Jackson decreed that gender-specific pronouns would not be permitted in her committee room. There are even a few Republican bills on her list; I suspect that Jackson is obviously emulating her Democratic brethren.
But back to Mr. Levine's lone bill on the list - AB 790. This bill requires a company with a market capitalization of at least one billion dollars - according to the company's most recent annual report - to pay a variety of folks who are employed pursuant to a personal service contract at least 85 percent of the area median income. This amounts to a kind of prevailing wage for private workers.
The service workers covered by AB 790 include: "janitorial and housekeeping services, custodial services, food service workers, laundry services, window cleaning services, bus driving services, or security guard services." Why landscapers are not included is perplexing - but there is time to add more types of work.
It is also important to note that if these companies employ their own service workers performing these tasks, such as only contracting with janitorial firms, transportation firms, or a food service, that AB 790 no longer applies.
The CalChamber observes that "According to the Department of Housing and Community Development's 2018 report, the area median income in Santa Clara County is $125,200. Thus, an eligible employer in Santa Clara County, as defined by AB 790, would have to pay $106,420 based on an 8-hour day/40-hour workweek for each individual performing work for a personal services contract". Yikes!
The bill up next week in the Assembly Labor and Employment Committee - whose motto is "no idea by a Democrat author is too ridiculous to pass" - will almost assuredly receive a "do-pass". The CalChamber has had a pretty good run of success with the so-called "job killers". By the chamber's tally, Governor Jerry Brown signed only 10 of the 135 bills dubbed "job killers" over the last five years.
Noted political curmudgeon Dan Walters notes that "the Capitol's ideological ambiance has undergone a shift to the left - not only because Democratic legislative supermajorities became even larger in last year's election - but because California voters also elected a new governor, Gavin Newsom, who is outwardly more liberal than Brown. Moreover, there's a big psychological impetus among the Capitol's Democrats to reinforce California's status as the leader of the 'resistance' against President Donald Trump".
Will the Chamber be able to claim a similar success in 2024? We'll see.

Thursday, April 18, 2019   2020 Election

Labor Leaders Say 2020 Dems Lack Union Message: Union leaders say the 2020 Democratic presidential contenders' focus on issues like the Green New Deal and "Medicare for all" risks disenchanting working class voters, the Associated Press reports. "They've got to pay attention to kitchen table economics," said Ted Pappageorge, president of the Las Vegas Culinary Union, which represents 60,000 hotel and casino workers. "We don't quite see that." Ken Broadbent, business manager of the Pittsburgh-based Steamfitters Local 449, also said: "Jobs is where we've got to keep things focused."

Thursday, March 21, 2019   Labor Law Update

Medical Leave: How and Why Chipotle Prevailed in a High-Stakes Pregnancy Discrimination Trial After an eight-day trial, a Southern California jury has decided that Chipotle Mexican Grill did not unlawfully discriminate when it fired a manager after she suffered a miscarriage and failed to return from a 12-week medical leave. The plaintiff claimed that she needed additional time off because of mental strain. The jury agreed that the plaintiff was suffering from a mental impairment but decided that the impairment itself did not entitle her to additional protected medical leave. More
Appeals Court Decision Challenges Independent Contractor Definition A recent California Court of Appeal decision indicates that the state is trending away from unifying its independent contractor law and leaving employers with even more questions than they had before. Now more than ever, employers need to be careful about how they classify their workers as different standards may apply to different industries, different statutory schemes, and beyond. More

Thursday, March 21, 2019   What We're Reading

Contractors team with AI company to improve workplace safety Nine major construction companies have partnered with software firm Smartvid.io to develop predictive analytics that can prevent accidents and improve safety throughout the industry. Suffolk, which will serve as chair of the council, contributed 10 years of project data and photos to the predictive model, and other partners will contribute data anonymously as the system develops. More
Thanks for the Help Assembly Speaker Anthony Rendon responded to Vice President Mike Pence, who had wished Rendon a productive session: "I would have to say you and the President have already done quite a bit to help us with that. Thanks to your policies, voters in California added five Democrats to the Assembly in the last election. In addition, one Republican has decided to jump to the Democratic party, citing the President's extreme positions." Read the letter here.
Lawyers Brace for Porter's Questions During Hearings: Freshman Rep. Katie Porter (D-Calif.), a former law school professor, has asked questions that have tripped up Wells Fargo and Equifax executives since she arrived in Congress and nabbed a seat on the House Financial Services Committee. Porter beat incumbent Mimi Walters in November. Her approach, according to The National Law Journal's C. Ryan Barber "has forced white-collar defense lawyers who specialize in congressional hearings to grapple with how to prepare clients for questioning that uses a company's own legal arguments against its top executive. Her repeated, effective use of that approach promises to make her a starring figure in preparations that have been known to include mock hearings, with lawyers playing the part of lawmaker during rehearsals. This tactic is a new and particularly effective example of what has long been the risk for a corporate executive, the face of a company, testifying in Congress," said David Leviss, a former senior investigative counsel for the House Oversight and Government Reform Committee who's now a partner at O'Melveny & Myers, in a Journal story.
And Then There Were None Sarah D. Wire from the LA Times profiles the now-unified force of Democrats representing the previous GOP bastion of Orange County. "Four of the newest members defeated Republicans in November to secure their seats. They joined Rep. Lou Correa (D-Santa Ana) who holds a seat that flipped to Democratic control in the mid-'90s, and Rep. Alan Lowenthal (D-Long Beach), one-third of whose constituents are O.C. residents." Story (registration may be required)
Thank You for being my Friend California's new online community college director, hoping to quickly establish her executive team, pushed Monday to grant a no-bid contract of up to $500,000 to an executive recruiter who is a friend and has long has been a part of San Francisco's political scene. Heather Hiles, president of the nascent online college, has a goal of starting classes this fall. The community college board approved Hiles' choice of executive recruiter Carolyn Carpeneti, even though some community college board members abstained, contending the contract should have been put out to competitive bid. Before becoming an executive recruiter, Carpeneti was a political fundraiser whose clients included then-San Francisco Mayor Willie Brown. Brown and Carpeneti became romantically involved and had a daughter in 2001. In 2003, the San Francisco Chronicle reported that "nonprofit groups and political committees controlled by the mayor and his allies" paid Carpeneti $2.33 million over a five-year period. Story

Thursday, March 21, 2019   Thought

US Chamber files Amicus in ABC CCC SCOTUS Petition After a disappointing but not surprising decision in the 9th Circuit Court of Appeals, the Associated Builders and Contractors of California Cooperation Committee asked the US Supreme Court to hear its case. At the request of WECA - an active US Chamber member - the US Chamber of Commerce Litigation Center provided an amicus in support of ABCCC's request for a writ of certiorari.
The Chamber's decision is important because they were the plaintiff in an earlier case. They pointed out that "the Chamber regularly files amicus curiae briefs in cases that raise issues of concern to the nation's business community." This is such a case because California is abusing its massive public works spending to regulate in an arena Congress reserved for unrestricted private speech. Further, California seeks to tilt public debate about unionization against the free speech rights of employers. The California statute at issue seeks to effect a massive transfer of resources into the coffers of union-selected "industry advancement funds" opposing right-to-work laws. Even worse, the statute conscripts employers as unwilling participants in pro-unionization advocacy by compelling them to fund pro-unionization speech with which they may disagree. You can read the Chamber's Amicus here and ABCCC's petition here.
However, we have a long way to go, and there is no guaranty that the Court will grant ABCCC's petition. Nevertheless, the support of the Chamber is appreciated and demonstrates that the merit-shop supporters of fair and open competition are not alone.

Survey Shows Construction Contractors Struggle as Labor Shortage Persists The USG + U.S. Chamber of Commerce Commercial Construction Index (CCI) is a quarterly economic index designed to gauge the outlook for, and resulting confidence in, the commercial construction industry.

Recognizing a need to highlight the important contributions of this sector to the nation's economy, USG Corporation and the U.S. Chamber partnered to produce this first-of-its-kind index.

Each quarter, contractors across the country are surveyed in order to better understand their levels of confidence in the industry and top-of-mind concerns.

Download the full report and explore the top-line findings, here.

Santa Barbara Proceeds to "Negotiate" PLA Despite an outpouring of opposition from local contractors and the local chamber of commerce, the Santa Barbara City Council voted 6-1 to spend $100,000 to negotiate a PLA with the local building trades council for all city work over $5 million. Michael Vlaming, a Northern California attorney who has created a cottage industry of replacing one public agency's name with another and charging $50,000 for the search and replace, was hired. The Coalition for Fair Employment in Construction and WECA are continuing to work with the local contractors as negotiations unfold. The city also passed a sales tax increase last year to whet the appetite of the unions for the PLA - and found willing benefactors at the city council.
What's Going on in DC?
Hearing in the Democratic HELP Committee The House Education and Labor Committee's Subcommittee on Health, Education, Labor, and Pensions announced it will be holding a hearing, "Protecting Workers' Right to Organize: The Need for Labor Law Reform," on Tuesday, March 26, at 10:15 am. The hearing is likely to cover numerous issues employer groups have been actively fighting over the last 15 years. Most expect that the Democrats will introduce labor-related legislation similar to the Workplace Democracy Act and Workers' Freedom to Negotiate Act, which they introduced during the 115th Congress.

Thursday, March 21, 2019   2020 Election

Lobbyists Backing Biden For President: Washington lobbyists on both sides of the aisle would like to see former Vice President Joe Biden win the Democratic nomination for president. Biden received 37 percent of the vote in a poll of 183 registered lobbyists conducted by PoliticoInfluence between March 4 and March 10. PI confirmed each respondent was a registered lobbyist or foreign agent. The sample included 88 Democrats, 77 Republicans and 18 lobbyists who identified as members of neither party, who were asked to choose the Democrat they would "most like to see become president." The poll isn't scientific and doesn't reveal much about who's likely to win the nomination. (There are few, if any, registered lobbyists in the early primary states.) But it sheds light on how Washington lobbyists in both parties view the presidential race. The lobbyists who voted include those who work at law and lobbying firms, trade groups and companies with Washington offices. Sen. Amy Klobuchar (D-Minn.) came in a distant second, with 9 percent of the vote. Former Colorado Gov. John Hickenlooper and former Rep. Beto O'Rourke (D-Texas) tied for third, with 8 percent of the vote. I don't think they asked about the Republican primary.