Richard Markuson

Newsom's Agenda
 
California will have a better picture today, when Governor Gavin Newsom releases his first budget, but he has tipped his hand, to a degree, with some of his staff appointments and signals of his policy objectives.
 
Newsom has released some key line items from the $200 billion-plus budget outline:
 

• $1.8 billion for early childhood education and childcare.
• $105 million (on top of $200 million approved last year) for wildfire prevention.
• $40 million for a second year of free community college tuition for Californians.
• An adjustment of the state trust fund reserve rules to extend California's paid family leave program beyond the current six weeks to as long as six months with partial pay for new parents.
• $140 million to expand Medi-Cal coverage to young adults between 19 and 25 who are undocumented.
• Subsidized premiums for Californians who can't afford health insurance, paid for by a reinstatement of the Obamacare penalty, in this state only, for those who choose not to be covered.

 
Not in the budget, but also an important health care piece, is an executive order directing the state's agencies, including the one that oversees Medi-Cal, to negotiate with prescription drug makers. The move will make California the nation's largest negotiator against pharmaceutical companies--and could prove a model for other states.
 
Also signaling his political tack are some of his staff appointments-- one in particular has California employers a little concerned.
 
Anthony Williams, who was special counsel to former California Senate Pro Tem Darrell Steinberg, is legislative secretary.
 
Ann O'Leary, chief of staff, former advisor to Hillary Clinton.
 
Ana Matosantos, Cabinet Secretary a Capitol veteran who had served stints as finance director under Schwarzenegger and Brown.
 
Angie Wei as his chief deputy cabinet secretary for policy development. Was chief of staff for the California Labor Federation, shaping policy on behalf of 2.1 million union workers.
 
As Secretary of Labor and Workforce Development, Julie A. Su, a California Labor Commissioner since 2011.
 
It is the Wei appointment that is causing some angst. The LA Times called Wei "a Capitol insider with deep ties to organized labor in California... As a legislative director and chief of staff at the California Labor Federation, Wei has represented more than 1,200 unions and 2.1 million workers in Capitol fights over a host of policy issues including drug pricing transparency and paid family leave." Wei also fought efforts last year to delay the Dynamex ruling that upended years of law and practice in deciding who is an employee and who can be considered an independent contractor. Labor and the Labor Federation was important to Newsom's election and it is natural that he would reward that support and Newsom has claimed to be a "business-friendly Democrat" which in some parts of the State would be a death sentence. But a review by The Sacramento Bee found Newsom "has shifted his positions to the left on issues ranging from sanctuary cities to high-speed rail and charter schools. Some of the changes have made him vulnerable to the critique that he's flip-flopped."
 
Only time will tell where the Newsom administration lands on the political spectrum but most in Sacramento agree he will veer further left than his predecessor.

Doing Business in LA? Living Wage Ordinance Updated. Any employer working with the city of Los Angeles should be aware of recent amendments to the Los Angeles Living Wage Ordinance, which lays out annual cash wage increases, time off and health benefits. More
 
Employer's Rounding Policy Complied with California Law AMN used a computer-based timekeeping system for all nonexempt employees, including plaintiffs/nurse recruiters. The timekeeping system rounded recruiters' punch times (both punch in and punch out) to the nearest 10-minute increment. To establish the proper hourly compensation, AMN converted each 10-minute increment to a decimal (to the nearest hundredth of a minute), totaled the number of hours (to the hundredth of a minute) and multiplied the total hours by the recruiter's hourly rate. AMN's expert labor economist testified that the rounding rule used by AMN was "neutral; in the long run, neither the employer nor the employee benefits from this policy." The trial court ruled that the rounding policy complied with California law, and the Court of Appeal affirmed. On similar grounds, the Court affirmed the trial court's summary adjudication in AMN's favor of plaintiffs' claims for unpaid meal and rest periods, wage statement violations, waiting time penalties, PAGA penalties, violation of the unfair competition law and for unreimbursed business expenses. Donohue v. AMN Servs., LLC, 2018 WL 6445360 (Cal. Ct. App. 2018)
 
California State Disability Insurance (SDI) Increases It's a new year, and California SDI benefits will be increasing. The SDI withholding rate continues to be 1.0% of wages. But, the taxable wage limit will increase from $114,967 to $118,371. For new SDI claims (whether for short-term disability benefits or paid family leave benefits) the maximum weekly benefit will increase from $1,216 to $1,252 a week. More

Susan Anderson, 66, of Fresno, has been reappointed to the California Apprenticeship Council, where she has served since 2013. Anderson served in several positions for the County of Fresno from 1989 to 2013, including District 2 supervisor, county clerk, registrar of voters and deputy district attorney. She was membership and marketing director at the Central Valley Young Men's Christian Association from 1973 to 1984 and a member of the Fresno Regional Workforce Investment Board from 2009 to 2012 and from 2002 to 2004. Anderson earned a Juris Doctor degree from the San Joaquin College of Law. Anderson is registered without party preference.
 
Christopher Christophersen Sr., 58, of Tracy, has been reappointed to the California Apprenticeship Council, where he has served since 2014. Christophersen has been business manager at the International Union of Painters and Allied Trades District Council 16 Northern California since 2002. He was president of the Auto, Marine and Specialty Painters Local 1176 from 1998 to 2002 and an apprentice-journeyman at Forman Automotive Painter from 1980 to 1998. Christophersen is a Democrat.
 
Don Scott Gordon, 57, of Lake Forest, has been reappointed to the California Apprenticeship Council, where he has served since 2010. Gordon has been executive director of the Laborers Training and Retraining Trust for Southern California since 2001. He was operations manager at Hardy and Harper from 1996 to 2001 and district manager at the Associated General Contractors of California from 1994 to 1995. Gordon is a Democrat.
 
Larry Hopkins, 56, of Riverside, has been appointed to the California Apprenticeship Council. Hopkins has been director of training at Operating Engineers Training Trust since 2013. He is a member of the International Union of Operating Engineers. Hopkins is a Democrat.
 
Charles Martin, 46, of Los Angeles, has been reappointed to the California Apprenticeship Council, where he has served since 2013. Martin has been executive director at the Air Conditioning and Sheet Metal Association, Los Angeles and Kern County since 2014, executive director of the Finishing Contractors Association of Southern California since 2009 and executive director at the California Plumbing and Mechanical Contractors Association since 2005. He has been owner of Martin Consulting Services since 2005. Martin was a professional trustee at the International Brotherhood of Electrical Workers Local 441 from 2007 to 2013, executive director of the California Landscape and Irrigation Council from 2007 to 2012 and vice president at McMorgan and Company from 2000 to 2005. He is a member of the California Foundation on the Environment and the Economy Board of Governors. Martin is a Republican.
 
Frank J. Quintero, 72, of Glendale, has been reappointed to the California Apprenticeship Council, where he has served since 2013. Quintero has served in multiple positions for the City of Glendale since 2001, including mayor and city council member. He was director of the Alliance for Education from 1976 to 2002. Quintero is a member of the Orangeline Development Authority Board of Directors. He served on the California Workforce Investment Board from 1999 to 2010. Quintero is a Democrat.
 
Frank Schetter, 72, of Sacramento, has been appointed to the California Apprenticeship Council. Schetter has served as chief executive officer at Schetter Electric Inc. since 1983. He is a member of the National Joint Apprenticeship and Training Committee, Statewide Labor Management Committee of California, Joint Apprenticeship Training Committee, American Subcontractors Association of California and International Brotherhood of Electrical Workers. Schetter is registered without party preference.
 
Richard Zampa, 63, of Rodeo, has been appointed to the California Apprenticeship Council. Zampa has served as California, Nevada and Arizona apprenticeship director at the California Field Ironworkers Apprenticeship & Training Program since 2005. He was an apprentice ironworker at the Ironworkers Apprenticeship Program 1973 to 1976. Zampa is a member of Ironworkers Local 378. Zampa is a Democrat.

How a Strange Accusation Caught Fire and Took Down an Assembly Candidate: The woman who accused Republican Assembly candidate Phil Graham of battery just before the June primary admits she told one of his GOP rivals about her claim. Labor groups and a Mexican company amplified her charge even after authorities determined it never happened. More
 
 
Kaiser Hit By NLRB: The National Labor Relations Board charged Kaiser Permanente Friday with refusing to negotiate on a contract for 85,000 employees in seven states and D.C. The action grew out of a complaint filed by the Service Employees International Union in May. The healthcare company is required to respond to the unfair labor practices charge by Jan. 11. A hearing is scheduled for March 19 in California.
 
New Year, New Name: The 116th Congress convened last Thursday. Democratic control of the House means there's a new name for the House Committee on Education and the Workforce - it's once again called "Education and Labor."
 
Another US Department of Transportation Departure: Geoff Burr, Elaine Chao's chief of staff, is leaving after almost two years. His deputy, Todd Inman, is expected to take on the role. Burr was an aide to Chao when she headed the Department of Labor, and advised her during the nomination process for her current job. Prior to joining the Trump Administration Burr was at ABC and was being vetted to be a DOL when Andrew Puzder was the nominee to be Secretary.
 
The Perils of Politics in the California Workplace: Though the election is over, politics continue to boil water coolers in workplaces across California. So, while employers presumably know that they must provide employees with time off to vote, they also must recognize that their employees' political rights are not confined to the polling place. More

Governor Jerry Brown signed into law 1,016 of the bills the California Legislature introduced since January 2018. Many will significantly impact California contractors. At this WECA Legislative Update, lobbyist Richard Markuson will explain which measures were signed into law and how these new laws will impact California contractors in 2019 and beyond. Topics will include: Construction law, Sexual Harassment, General Business law, Independent Contractor Status, and emerging trends in enforcement and litigation.
This webinar is complimentary for WECA members and their employees as a WECA member benefit. All others $50.

Register here.

A message from the California Contractors State License Board: 

December 28,2018
CSLB #18-17

New Contracting Laws Kick into Gear on January 1, 2019

SACRAMENTO - The Contractors State License Board (CSLB) is providing a summary of new construction related laws that will go into effect with the coming of the new year. 


Senate Bill (SB) 721 establishes requirements for inspecting and repairing "exterior elevated elements," which includes decks and balconies, for buildings with three or more multi-family dwelling units. Additionally, it establishes reporting and repair requirements, including time frames, if it is found repairs are needed. 


This bill also specifies who can complete the inspections and repairs - such as "A" General Engineering, "B" General Building, and C-5 Framing and Rough Carpentry contractor license classifications, if specified experience requirements are met. Also, this bill provides for application of civil penalties if building owners violate the requirements. (Chapter 445, Statutes of 2018)


SB 981 removes the restriction on delivering or installing a water treatment device sold through a home solicitation contract during the consumer's "three-day right to rescind" from the date the contract is signed. Instead, this bill allows for the installation to take place during that time period. 


If the consumer subsequently withdraws the contract within the three-day period, the seller is responsible for the costs to remove the device and/or any material and to return the property to its same condition prior to the contract. (Chapter 932, Statutes of 2018)


SB 1042 authorizes CSLB's registrar to "settle" less egregious administrative citations prior to an administrative hearing using an informal citation resolution process. The informal process is not subject to the Administrative Procedure Act and the person cited would not surrender their right to request an administrative hearing. (Chapter 110, Statutes of 2018)

SB 1087 is a follow-up to AB 1284 (Dababneh, Statutes of 2017), which required the licensing and regulation of Property Assessed Clean Energy (PACE) program administrators by the Department of Business Oversight (DBO). Among other things, SB 1087 makes it unlawful to begin work under a home improvement contract if the property owner was not ultimately approved for the PACE financing applied for. (Chapter 798, Statutes of 2018)


SB 1465 requires contractors and insurers to report to CSLB any final civil judgments, settlements, or arbitration awards involving damage claims over $1,000,000 for construction defects in multi-family rental residential structures that meet specified criteria. (Chapter 514, Statutes of 2018)


Assembly Bill (AB) 2138 - Effective July 1, 2020, this bill prohibits an applicant from being denied a license solely because he or she has been convicted of specified crimes. It also authorizes a board to deny a license based on a conviction if it occurred within seven years from the date of application, regardless of the following: 

* Incarceration status;

* If the crime is substantially related to the qualifications, functions, or duties of the license;

* If the conviction requires California sex offender registration; and 

* If the conviction is a financial felony crime directly and adversely related to the qualifications, functions, or duties of the license. 


This bill also prohibits license denial if the applicant was pardoned, shows rehabilitation, or if the conviction was dismissed, and prohibits denial based on an arrest that resulted in anything other than a conviction. 


Boards will also be prohibited from requiring an applicant to provide his or her criminal history and requires boards to produce annual reports about applicants with a criminal background to the Legislature and for public posting. (Chapter 995, Statutes of 2018)

AB 2371 provides that before CSLB revises a landscaping contractor examination, it must confer with specified entities to determine if any updates or revisions to the exam are needed to reflect new and emerging landscape irrigation efficiency practices. (Chapter 867, Statutes of 2018)


AB 2705 increases the statute of limitations from one year to two years during which an unlicensed contractor can be prosecuted for failing to obtain workers' compensation insurance for their employees. (Chapter 323, Statutes of 2018)


AB 3126 eliminates the option of a cash deposit with CSLB in lieu of a contractor license bond, bond of qualifying individual, or disciplinary bond to prevent contractors from removing bond funds from their private accounts and leaving no funds payable to a consumer following a valid claim against a bond. Contractors may also submit a cashier's check. (Chapter 925, Statutes of 2018)

This Content Courtesy of Carrie Bushman, Partner at Cook Brown, LLP:

As many public works contractors are aware, over the last several years, California has adopted skilled and trained workforce requirements which mandate that contractors working on specific types of projects employ a certain percentage of apprenticeship program graduates for those working in an apprenticeable occupation.  Among others, the primary projects which include skilled and trained workforce requirements are:

• School District (K-12) Design Build > $1 Million
• School District (K-12) Lease Leaseback
• Local Agency & other Specified State Agency Design Build > $1 Million
• LAUSD Best Value > $1 Million
• Alameda, Los Angeles, Riverside, San Bernardino, San Diego, Solano & Yuba County    Best Value ≥ $1 Million

The only workers who can be employed on these projects are apprentices who are currently registered in a state approved apprenticeship program and "skilled journeypersons" who are either apprenticeship program graduates or have worked enough hours in their trade to meet the on the job training requirements of a state approved apprenticeship program in that trade; however, a certain percentage of the skilled journeypersons working on these projects must be apprenticeship program graduates.  Read more here

Join us on Tuesday, January 29, 2019, for a one-day legislative conference with visits to the State Capitol, and featuring speakers on Workforce Development, Licensing, and Employment Issues. We hope to see you there! WECA members and their employees receive a discounted price on registration.
Download a Registration Form Here

 

Insurers should prepare for high volume and high cost over the next decade. Because nothing says recovery like a lawsuit, after devastating wildfires throughout California in recent years, a flurry of reconstruction will create an increase in construction-defect claims affecting the liability-insurance market for years to come. More
 
Proposed IRS Regulations Affecting 401(k) and 403(b) Plans. Paul Hamburger, co-chair of Proskauer's Employee Benefits & Executive Compensation Group, and associate Steven Einhorn discuss the recently proposed IRS regulations addressing the hardship withdrawal rules affecting 401(k) and 403(b) plans. They discuss challenging questions employers and administrators face as they work through the new requirements, which include the elimination of the six-month contribution suspension for participants who take a hardship withdrawal and how many plans will need to be amended as a result of these new proposed regulations. More
 
California Snapshot: Seven questions employers should ask in 2019 If you have the right answers, you may survive 2019.  More
 
Cutting Employee Hours to Avoid ACA Requirements Costs Employer $7.4 MillionIn response to the Affordable Care Act's (ACA) 30-hour threshold for employee coverage, many employers, including retailers and restaurants, considered cutting employee hours to avoid offering health insurance. At that time, legal advisors cautioned that changing employee schedules to reduce the number of full-time employees and avoid ACA liability might violate the Employee Retirement Income Security Act (ERISA). Dave & Buster's' recent $7.4 million proposed settlement with a class of employees whose hours were cut should serve as a cautionary reminder to employers who have cut or who are considering cutting employee hours to avoid the ACA employer mandate. Employers should be aware that additional litigation is likely.  More
 
Under ERISA, Ignorance Is Bliss in the 9th Circuit. In Sulyma v. Intel Corporation Investment Policy Committee, the 9th Circuit Court of Appeals recently held that having access to documents disclosing an alleged breach of fiduciary duty is not sufficient to trigger the three-year statute of limitations under the Employee Retirement Income Security Act (ERISA) if the plaintiff does not have actual knowledge of the alleged breach. The takeaway is that the 9th Circuit's decision will make it more difficult for defendants to prove that a participant had actual knowledge of an alleged breach of fiduciary duty sufficient to trigger the three-year statute of limitations. Participants, in effect, can simply deny that they read or understood disclosures that were sent to them, regardless of the nature or substance of those disclosures. For purposes of ERISA's statute of limitations, ignorance truly appears to be bliss, at least in the 9th Circuit. More
 
And the Waiting Continues ... NLRB Extends Comment Period on Joint Employer Rule Once Again In September 2018, the NLRB released its new proposed rule regarding the joint employer standard. The NLRB extended the comment period twice since the release of the new proposed rule. Comments are now due on or before January 14, 2019. The number of comments submitted is 25,543 and counting.

California appellate court rules that Dynamex test applies only to wage order claims A California appellate court has ruled that the California Supreme Court's recent decision in Dynamex Operations West, Inc v Superior Court, which established a new test for determining whether to classify workers as independent contractors, is limited to claims under the Industrial Welfare Commission's wage orders. In Garcia v Border Transportation Group, LLC, the plaintiff taxi driver sued the defendant taxi company alleging various wage and hour claims under the California Labor Code and California's Industrial Welfare Commission (IWC) Wage Order 9. The trial court dismissed the plaintiff's claims, concluding that the plaintiff was an independent contractor who simply leased a taxi from the defendant. After the California Supreme Court's employee-friendly decision in Dynamex, there has been some uncertainty about whether the Dynamex test applies to Labor Code claims as well as wage order claims. The Court of Appeal's decision in Garcia suggests that Dynamex may have a more limited impact than employers initially feared. Of course this distinction may disappear when the California Legislature takes up AB 5 (Gonzalez D-San Diego) that states the intent of the Legislature to include provisions within this bill would codify the decision in the Dynamex case and clarify its application--and by clarify she means to have it apply generally to any challenge to status of employment.

Public Works Registration
Beginning June 1, 2019, contractors will have the option to renew their annual public works registration for up to three years at a time (paying the $400 per year fee). The Labor Commissioner is able to assess public works contractors penalties of up to $8,000--in addition to any penalty or registration fee--for failure to register. Awarding agencies are also subject to penalties of $100 a day, up to a maximum of $10,000, for hiring an unregistered contractor to perform work on a public works project. A contractor that hires an unregistered subcontractor is also subject to penalties of up to $10,000. Contractors who work exclusively on small public works projects are not required to register as a public works contractor or file electronic certified payroll reports for those projects. Contractors are still required to maintain certified payroll records on a continuous basis, and provide them to the Labor Commissioner's Office upon request. Additionally, awarding agencies are not required to submit the notice of contract award through DIR's PWC-100 system on projects that fall within the small project exemption. The small project exemption applies for all public works projects that do not exceed:

• $25,000 for new construction, alteration, installation, demolition or repair
• $15,000 for maintenance

More information is here.

This once-a-year event, jointly sponsored by WECA and PHCC, starts at the Masonic Lodge of Sacramento and continues on to the Capitol for contractors to tell the merit shop story. Talk with industry experts and regulators about current issues affecting your business and the industry. Topics will include PAGA lawsuits which have made providing flexible working conditions more difficult for California businesses. Instead of protecting workers, predatory trial lawyers take advantage of this law. Come speak with your legislative representatives about this law and other contractor legislation important to you. Register today and make plans to bring your voice and power to impact the issues that impact you and your business! For additional information, contact PHCC of CA at evp@caphcc.org. Download a registration form here.

5th Circuit: General contractor can be cited for subcontractor violations. A U.S. Appeals Court judge for the 5th Circuit in New Orleans has ruled that OSHA can cite general contractors for violations--even if that contractor's own direct employees are not affected--for subcontractor safety violations. The ruling came after Labor Secretary Alexander Acosta requested that the 5th Circuit review an OSHA administrative court decision that said a general contractor could only be cited for safety threats to its own employees. While this decision is not binding on California Courts, contractors should pay close attention to this trend--and it is reasonable to expect legislation to be introduced in California this year to create a statutory obligation for GCs to insure worker safety. More
 
When CEQA Gets Ugly: 3rd District Holds That Lay Public Opinion Supports Fair Argument That Project May Have Significant Aesthetic Effect Requiring EIR. In a published opinion filed December 17, 2018, the Third District Court of Appeal affirmed a judgment granting a writ setting aside El Dorado County's approval of, and related Mitigated Negative Declaration (MND) for, construction of a Dollar General Store in the "quaint" downtown area of unincorporated Georgetown, a Gold Rush-era "hamlet" designated as a State Historical Landmark. The Court held that lay public commentary on nontechnical issues concerning the project's size and general appearance constituted substantial evidence supporting a fair argument that the project may have significant aesthetic impacts, and thus required an EIR, notwithstanding County's findings that the project complied with its Historic Design Guide. The Court also held County's failure to make explicit findings in the record on alleged credibility and foundation issues precluded its "manufacturing after-the-fact findings" to justify its dismissal of the public comments on the ground that they did not constitute "substantial evidence." More

 

Does "Master Electrician" Sound Like a Good Idea?
 
The California Pool & Spa Association (CPSA) is contemplating a legislative proposal to establish an advanced (or master) certification program for swimming pool (C-53) contractors. The proposal would:

1. Require that Contractor State License Board (CSLB) establish a voluntary "advanced" or "master" certification program for C-53 swimming pool contractors.
2. Require that CSLB identify in statute the association or organization that would provide the certification training.
3. Require that CSLB establish education and training standards for pool and spa contractors.
4. Require that CSLB provide a continuing education requirement as a prerequisite to a licensee maintaining the certification.
5. Prohibit a licensee that does not hold an advanced certification from advertising that they do.

 
The Board was, to put it mildly, skeptical that CSLB should go down the path of embracing and, more importantly, endorsing the notion that the state should play a role in what is, arguably, a purely association activity. They noted three laws or policies that would control any activity pursued by CPSA:
 

• B&P §101.6 that sets the floor (or ceiling?) for state regulation: to set minimum qualifications and levels of competency for regulated professions.
• B&P §166 that provides that if any DCA board/bureau requires continuing education programs for licensees, such a program be developed by regulations promulgated by the DCA director (not individual boards).
• A unanimous board action in September 2012, to oppose requiring licensees to complete a continuing education requirement.

 
The State has a mixed record of approving and rejecting continuing education (CE) mandates. In addition to the requirement in the Labor Code that electricians obtain CE, some professions have state-mandated requirements, and some have been rejected (you can reach your own conclusion if $ome $pecial interest groups are morespecial than others).
 
In their letter of support CPSA observed:
 
Swimming pool and spa industry leaders believe there is substantial amount of substandard pool and spa construction in California by licensed swimming pool contractors. The California Pool and Spa Association (CPSA) believes that in many cases the C-53 licensing examination does not adequately validate the competency of a contractor to construct swimming pools, spas or hot tubs and that a more extensive education and training component is necessary to adequately equip swimming pool contractors to safeguard the health, safety, and welfare of the public and protect the interests of consumers.
The C-53 license examination contains few details regarding construction practices, and construction standards. In addition, the licensing examination is only given at contractor's entrance into the contracting field. Once a contractor passes the examination, the exam does nothing to inform him or her of changes in the laws, practices or standards in the profession. On the other hand, industry certification classes provide much greater detail and furnish contractors a substantive set of knowledge, skills, and abilities to construct, install, renovate, and repair pools and spas at the highest level.
 
As I mentioned, the CSLB was reluctant to endorse the proposal but took no action--citing a desire to address the issue if and when a bill is introduced in the Legislature.
 
But it caused me to consider if a "Master Electrical Contractor" Certification awarded by WECA would be a marketing advantage for WECA members (and other C-10/C-7 contractors) who sought the certification. Share your thoughts with me.
 
Oh, and Happy New Year!

 

Join us on Tuesday, January 29, 2019, for a one-day legislative conference with visits to the State Capitol, and featuring speakers on Workforce Development, Licensing, and Employment Issues. We hope to see you there! WECA members and their employees receive a discounted price on registration.
Download a Registration Form Here

 

Contract worker deaths from electrical incidents prevalent in construction industry: NFPA
The construction industry experienced a "substantial share" of contract worker deaths involving electrical incidents during a recent five-year period, according to a report from the National Fire Protection Association. NFPA senior research analyst Richard Campbell examined Census of Fatal Occupational Injuries data for contract worker deaths from 2012 to 2016. "Contracted worker" was defined as "employed by one firm but working at the behest of another firm that exercises overall responsibility for the operations at the site" where the fatality occurred. Data showed that 325 electrical fatalities involved contract workers during the studied time period. In 2016, 63 cases occurred, ending a three-year rise that peaked at 76 in 2015. More.
 
California wildfires costs soaring past last year's records. Insurance claims and cleanup costs associated with California wildfires last month are expected to exceed the record-breaking amounts paid out last year after blazes ripped through the state's wine country. The insurance industry is bracing for payouts exceeding last year's record $11.8 billion payments to Northern California fire victims. Not surprising, the Building Trades are already at work with a local hire initiative which of course in BT parlance means "Union Hire." More.
The Fresno BEE reported the arrest of Fresno Assembly Member Joaquin Arambula (D) which prompted a call for his resignation from the chairman of the Republican Party of Fresno County (shocking, I know). "Fresno Police Chief Jerry Dyer said Tuesday that shortly before 2 p.m. Monday, police got a call from Dailey Elementary Charter School. The call came from a Child Protective Services employee who said there was a child at the school who had been injured. After talking to the child, 'the officer determined that the person responsible was Joaquin Aramubula,' Dyer said. Arambula was arrested for willful cruelty to a child, a misdemeanor under California domestic violence statutes." More.
 
Last time we mentioned that Eric Bauman, the head of the California Democratic Party, was out of office and seeking help for his "conditions". Now the proverbial other shoe has dropped. The acting chairwoman of the California Democratic Party Alexandra Gallardo-Rooker abruptly fired seven of the party's top officials and then shut its Los Angeles office, all on the heels of dramatic success in November. According to press accounts, "Many party activists heard about the firings through social media and were riled that Rooker released no formal statement on the reason for the action before slashing the party's top administrators and its entire Los Angeles staff." More interesting were conflicting statements from the CDP and Democrat elected officials. CDP mouthpiece Roger Salazar said "These moves [were] in consultation [with] the Speaker's office and the office of the Governor-Elect, "But both Newsom's team and Assembly Speaker Anthony Rendon said they were not consulted by Rooker about the firings ahead of time." Hmmm--better get those stories straight.
 
Navigating construction defect claims in today's economy
The reconstruction following the aftermath of Hurricane Florence across the Carolinas will be vast, long-lasting, and could bring immense rehabilitation opportunities to construction-focused industries such as contractors, subcontractors and insurers. From an insurance perspective, it could also bring new exposures likely to be associated with construction defect claims. More.

The Interplay between Federal and State Laws Regarding Medical Marijuana Usage. The U.S. Court of Appeals for the Ninth Circuit has a reputation as an employee-friendly forum. Yet that Court recently rendered a decision that employers should applaud. In Carlson v. Charter Communications, LLC, the Ninth Circuit refused to revive a former employee's lawsuit against his employer in which he alleged that he was wrongfully terminated due to his legal use of medical marijuana. Interestingly, the panel of the Court that issued the decision consisted of two judges appointed by Presidents Clinton and Obama and one judge appointed by President George W. Bush. The case involved a Montana statute known as the Montana Marijuana Act, which allows patients with state-issued medical marijuana program cards to have a certain amount of marijuana in their possession. More.

New Year Legislative Update: A WECA Webinar on Recent Legislative and Regulatory Changes Affecting Your Business. Free for WECA Members and Their Employees; Reserve Your Seat Today. Governor Jerry Brown signed into law 1,016 of the bills the California Legislature introduced since January 2018. Many will significantly impact California contractors. At this WECA's Legislative Update, lobbyist Richard Markuson will try to explain which measures were signed into law and how these new laws will impact California contractors in 2019 and beyond. Topics will include: Construction law, Sexual Harassment, General Business law, Independent Contractor Status, and emerging trends in enforcement and litigation. Register here.   2019 Legislative Visit Day - Tuesday, January 29, 2019 This once-a-year event, jointly sponsored by WECA and PHCC, starts at the Masonic Lodge of Sacramento and continues on to the Capitol for contractors to tell the merit shop story. Talk with industry experts and regulators about current issues affecting your business and the industry. Topics will include PAGA lawsuits which have made providing flexible working conditions more difficult for California businesses. Instead of protecting workers, predatory trial lawyers take advantage of this law. Come speak with your legislative representatives about this law and other contractor legislation important to you. Register today and make plans to bring your voice and power to impact the issues that impact you and your business! For additional information, contact PHCC of CA at evp@caphcc.org. Register here.

Campaign Update Part Deux
Last time we talked about three races that were "close."

• AD 77 (North Coast San Diego) incumbent Brian Maienschein (R) beat Sunday Gover (D) by 607 votes and was declared the winner by San Diego County. Beat may be too strong a term for this victory.
• Incumbent David Valadao in CA 21 (Fresno, Kern, Kings & Tulare) has conceded to TJ Cox. Cox won by less than 1,000 votes. This mean Democrats picked up seven House seats in California and 40 nationwide. This would be the largest pickup since Watergate, when Democrats picked up 49. The LA Times reports "The run marked Cox's second try for Congress, following an unsuccessful bid in 2006. An engineer by training, he founded two nut-processing companies and serves as president of a local community development organization."
• In the final close race, after supporters of losing Republican incumbent Janet Nguyen completed their examination of provisional ballot envelopes in SD 34(Orange & LA), Tom Umberg (D) was sworn into office last week. Umberg is the winner according to the Orange County Registrar of Voters.

Santa Barbara City Council Tells Local Contractors to Back Off
 
A four person (I use that term reluctantly) majority on the Santa Barbara City Council bought the local building trades' argument that a PLA will ensure local jobs, high wages and high quality, on-time delivery of the City's public works construction. They adopted a new City ordinance to authorize PLAs on all City work in excess of $5.0 million--in spite of an outpouring of opposition from local contractors who had been working for the city for years. Mayor Cathy Murillo went so far as to suggest the PLA would help local construction workers transition from renters to buyers, in a housing market with a median price of $1,295,000! She was motivated by Council Member Gregg Hart who leaves office this month--he was elected unopposed to the Santa Barbara Board of Supervisors! Hart was just re-elected to the Council in 2017, so his vacancy will be up to the council to fill. Hart serves as public information officer for Santa Barbara County Association of Governments (SBCAG) and previously worked for Assembly member Jack O'Connell. Hart and Murillo were joined by Council members Eric Friedman and Oscar Gutierrez; Council members Kristen Sneddon and Randy Rouse voted no and Council member Jason Dominguez (who participated by phone from South Africa) abstained. One bit of comic relief: A union iron worker from LA forgot to remove his LA union shirt while extolling the virtue of local hire.
 
Developer Sues Unions for Greenmail. KUSI reports: "The fight over union tactics that have delayed projects in San Diego over the years is being challenged in a Los Angeles federal court. The owner of the Bahia Hotel, Bill Evans, brought the suit against two local unions: 'United Here,' which represents hotel workers, and the San Diego Building and Construction Trades Council. The lawsuit claims a pattern of extortion and intimidation by the unions to exact concessions from developers such as project labor agreements. The suit alleges the unions over the years have developed a playbook, or a pattern of tactics, that cross the line from tough negotiations, to illegal activity such as threats to agree to concessions or face a boycott, and other costly delaying tactics. This would include frivolous legal challenges to environmental impact reports, or using labor allies on the City Council to delay or reject a project. The lawsuit claims these acts or threats, form a pattern of racketeering activity. Evans Hotels asserts it has been damaged in excess of $100 million and is entitled to recover treble damages. I wish the developer good luck, but as we know, extortion is a constitutionally protected collective bargaining tactic. More.

The Interplay between Federal and State Laws Regarding Medical Marijuana Usage. The U.S. Court of Appeals for the Ninth Circuit has a reputation as an employee-friendly forum. Yet that Court recently rendered a decision that employers should applaud. In Carlson v. Charter Communications, LLC, the Ninth Circuit refused to revive a former employee's lawsuit against his employer in which he alleged that he was wrongfully terminated due to his legal use of medical marijuana. Interestingly, the panel of the Court that issued the decision consisted of two judges appointed by Presidents Clinton and Obama and one judge appointed by President George W. Bush. The case involved a Montana statute known as the Montana Marijuana Act, which allows patients with state-issued medical marijuana program cards to have a certain amount of marijuana in their possession. More.

New Year Legislative Update: A WECA Webinar on Recent Legislative and Regulatory Changes Affecting Your Business. Free for WECA Members and Their Employees; Reserve Your Seat Today. Governor Jerry Brown signed into law 1,016 of the bills the California Legislature introduced since January 2018. Many will significantly impact California contractors. At this WECA's Legislative Update, lobbyist Richard Markuson will try to explain which measures were signed into law and how these new laws will impact California contractors in 2019 and beyond. Topics will include: Construction law, Sexual Harassment, General Business law, Independent Contractor Status, and emerging trends in enforcement and litigation. Register here.   2019 Legislative Visit Day - Tuesday, January 29, 2019 This once-a-year event, jointly sponsored by WECA and PHCC, starts at the Masonic Lodge of Sacramento and continues on to the Capitol for contractors to tell the merit shop story. Talk with industry experts and regulators about current issues affecting your business and the industry. Topics will include PAGA lawsuits which have made providing flexible working conditions more difficult for California businesses. Instead of protecting workers, predatory trial lawyers take advantage of this law. Come speak with your legislative representatives about this law and other contractor legislation important to you. Register today and make plans to bring your voice and power to impact the issues that impact you and your business! For additional information, contact PHCC of CA at evp@caphcc.org. Register here.

Governor Jerry Brown signed into law 1,016 of the bills the California Legislature introduced since January 2018. Many will significantly impact California contractors. At this WECA Legislative Update, lobbyist Richard Markuson will explain which measures were signed into law and how these new laws will impact California contractors in 2019 and beyond. Topics will include: Construction law, Sexual Harassment, General Business law, Independent Contractor Status, and emerging trends in enforcement and litigation.
This webinar is complimentary for WECA members and their employees as a WECA member benefit. All others $50.

Register here.

California Republicans and the Terrible, Horrible, No Good, Very Bad Day[1] Update
Last time there were a few races too close to call that have now been settled:

• CA 39 (parts of LA, Orange, and San Bernardino Counties). Gil Cisneros (D) beat Young Kim (R) by slightly more than 7,000 votes.
• SD 34 (parts of LA and Orange). Tom Umberg (D) appears to have beat incumbent Janet Nguyen (R) by about 3,000 votes (1%).
• AD 16 (parts of Alameda and Contra Costa Counties). Incumbent Catharine Baker (R) conceded to Rebecca Bauer-Kahan (D)--the margin--about 3,000 votes (1.4%).
• AD 38 (parts of LA, and Ventura Counties). Incumbent Dante Acosta (R) lost to Christy Smith (D) by about 5,000 votes--2.6%.
• AD 60 (Western Riverside County). Incumbent Sabrina Cervantes (D) beat Bill Essayli (R) by 5,000 votes (5%).

But...
Two more races are now "close."

• AD 77 (North Coast San Diego) has incumbent Brian Maienschein (R) only about 900 votes ahead of Sunday Gover (D).
• And in a big shock, TJ Cox (D) has pulled about 400 votes ahead of incumbent David Valadao in CA 21 (Fresno, Kern, Kings & Tulare). As the BEE wrote "On Monday afternoon, the latest numbers came in. They were staggering. Cox over performed in Kern County, capturing 73 percent of the 1,883 votes that came. And just like that, a 447-vote deficit turned into a 438-vote lead." This positions Democrats to pick up their seventh House seat in California and 40th nationwide. This would be the largest pickup since Watergate.

The State Legislature convenes next Monday at noon and will likely swear in Umberg in SD 34--even though the results may not be final. County elections officials must report their final results to the Secretary of State by December 7, 2018. Then the Secretary of State will certify the results by December 14, 2018. If any of the races change in the interim--they swear in the new person in January (it has happened).
 
Democrats have not had this many seats in the State Senate (29) since 1962 and not in the State Assembly (60) since 1883. Alex Vassar, legislative historian for the California State Library said "Voters gave Democrats an advantage in the Legislature that is unprecedented in modern times."

[1] With apologies to Judith Viorst

Closing the Unequal Pay Gap: California Releases Guidance to Employers on Complying with the California Fair Pay Act
The California Fair Pay Act ("CFPA") passed in 2015, requires all employers pay employees
 performing "substantially similar work" the same wage regardless of gender, ethnicity or race. The CFPA also requires employers to provide the pay scale for a position to an applicant who makes a reasonable request for it, prohibits employers from requesting an applicant's prior salary history and from relying on an applicant's salary history alone to justify a disparity in compensation "based on sex, race or ethnicity." After enacting the CFPA, the California Commission on the Status of Women and Girls launched the California Pay Equity Task Force ("Task Force") to monitor the implementation of the CFPA and facilitate dialogue on legislative modifications to California law. On September 10, 2018, the Task Force released written guidance for employees, employers, and unions on how they may comply with the CFPA. The guidance includes, among other things, a myriad of tips and recommended practices for employers seeking to comply with the CFPA. More.
 
Prop 65 Compliance Gets More Complicated
It has been almost three months since the latest amendments to California's Proposition 65 took effect on Aug. 30, 2018. Prop 65 was enacted in California in 1986 as the "Safe Drinking Water and Toxic Enforcement Act." Despite this official title, Prop 65 regulates far more than just water pollution. The purported goal of Prop 65 is to protect Californians from exposure to substances known to the State of California to cause cancer or reproductive harm. The plaintiffs bar is out with a vengeance, targeting all types of consumer products, with a sharp focus on products containing phthalates--in particular, DINP, DEHP and DBP. Targeted products include pouches, bags, goggles, earmuffs, earbuds/cords, hangers, eyelash curlers, stress neck pillows, charging cords, badge holders, and backpacks. There is also a continued focus on lead in items such as brass towel rings, towel racks and holders. Prop 65 is a big business for bounty hunters. In 2017, out of court settlements totaled $25,767,500 and attorney's fees totaled $19,486,382. This large amount of money is kept by a small group of lawyers and alleged "environmental groups." Based on recent notices, the most prolific filer is Anthony Ferreiro, represented by Brodsky & Smith. The runner-up is Consumer Advocacy Group Inc., represented by Yeroushalmi & Yeroushalmi. Industries that have not yet been targeted can assume they will be targeted soon. The author of this article anticipates that the first products that plaintiffs will target are those without warning labels. After that, plaintiffs will target websites and catalogs without warnings, or with improper warnings. Finally, plaintiffs will start to target products with incorrect or inaccurate labels, in an effort to demonstrate that the chemicals or endpoints are incorrectly stated. More.

Florida tops ABC's 2018 Merit Shop Scorecard rankings
The Associated Builders and Contractors released its 2018 Merit Shop Scorecard rankings this week, and the association ranked Florida No. 1 for its pro-construction policies, job growth and opportunities for contractors. You can obtain the report here. It should surprise no one that California ranked 50th--just ahead of Illinois. Illinois lost because of poorer job-growth opportunities and California's better score for Public-Private Partnerships (P3).
 
Construction workers have highest rate of suicide among American workers.
The Centers for Disease Control and Prevention in its Nov. 16 Morbidity and Mortality Weekly Report identified construction and extraction as the occupational group with the highest rate of male suicide among American workers. The CDC based its conclusion on data from 17 states and the 2012 and 2015 National Violent Death Reporting System. More.
 
Eric Bauman, the head of the California Democratic Party, made crude sexual comments and engaged in unwanted touching and physical intimidation, ten people told The Los Angeles Times. The allegations had not been previously disclosed. Mr. Bauman said he would seek treatment. [The Los Angeles Times]
 
 
So, How's That Top Two Working in California, Able Maldonado?
Rather than choose candidates they might have seen as the lesser of two bad Democrats, many Republican voters simply decided not to vote in certain contests in the Nov. 6 election, CALmatters' Ben Christopher concludes in the third of his reports on voting data. "Some 12 million Californians voted in the governor's race, a traditional match-up between Democrat Gavin Newsom and Republican John Cox, based on current tallies. But only 10.6 million voted in the U.S. Senate race between two Democrats, U.S. Sen. Dianne Feinstein and state Sen. Kevin de Leon. And 10 million people cast votes in another Dem-on-Dem race between Lt. Gov.-elect Eleni Kounalakis and Sen. Ed Hernandez. Christopher: "An analysis of county election data shows that the voters most likely to leave the double-D races for lieutenant governor and U.S. Senate blank on the ballot live in counties where Republicans outnumber registered Democrats." So, why did I blame this on Able Maldonado? Zachary Hayes--writing for Fox & Houndssaid, "the new system has not achieved its main goal of diminishing partisanship. In 2009, then-state assemblyman Abel Maldonado, a moderate Republican, used his leverage to break a deadlock over the state budget. In exchange for his vote, legislative leaders put his Top-Two proposal on the 2010 ballot, and voters approved it by 54-46 percent. Maldonado's goal was to prevent a recurrence of the partisan budget battles that had taken place during the 2000s by forcing politicians to appeal to a broader group of voters. In doing so, they would have to move to the political center, with the result being that moderate candidates would dominate the legislature. This outcome has not, in fact, occurred."
 
LAST MAN STANDING
The congressional multi-employer pension "supercommittee" is "considering repeal of the so-called 'last-man-standing' rule" (which assigns outstanding benefit liabilities to companies that remain in multi-employer plans) to move negotiations forward, James Rowley, and Madison Alder report for Bloomberg Law. Sen. Rob Portman(R-Ohio) "said the willingness of Democrats to consider eliminating that provision has helped drive progress in the talks." The committee has until Nov. 30 (a.k.a. tomorrow) to come up with a bipartisan legislative solution to address the pension crisis; it won't likely meet that deadline. More.
 
Unions, Proponents of Worker's Rights? Guess Again
A Wall Street Journal article entitled "Is Big Labor Anti-Worker?," reveals that hourly employees in the Washington offices of the American Federal of Labor and Congress of Industrial Organizations ("AFL-CIO") and Service Employees International Union ("SEIU") claim that their Union employers are treating them unfairly. I know - readers are shocked by the double standard. More.