Thursday, September 1, 2022
“Once more unto the breach, dear friends, once more” Some of you older readers may recall, lo those many years ago (ten to be more exact) when voters in the City and County of Sandy Ego did the right thing and prohibited PLAs in city and county-funded construction. But, in their usual style, the State Building and Construction Trades Council pulled their puppet strings in Sacramento. The Legislature passed not one but two bills, and Governor Jerry Brown slavishly signed them to punish cities and counties with the temerity to establish their municipal contracting boundaries. The bills cut off state funding to cities and counties that prohibit PLAs on locally funded construction.
Cue 2022; even though no city or county has lost state funds because of PLA bans, the San Diego Building Trades and their new puppets in City Hall now want to repeal 2012’s Measure A. Measure D is officially on the ballot. Measure D repeals Measure A, which ensures fair and open competition on City of San Diego projects by banning discriminatory PLAs. AGC San Diego, National Black Contractors Association (NBCA), WECA, and the Building Industry Association San Diego (BIA) plan to show voters how Measure D discriminates against 80% of the local construction workforce and hurts the very people it purports to help.
Make no mistake about it, we are up against a potent and influential political machine, and it will take significant resources to overcome the deceptive campaign that has already begun. So please join us by contributing whatever you can toward our fight against discrimination. The Committee, San Diegans Against Discrimination, Opposing Measure D, is officially open and can accept personal or corporate checks. Please see the information below:
Full Committee Name: San Diegans Against Discrimination, Opposing Measure D, sponsored by the Associated General Contractors of America San Diego Chapter, Inc.
FEIN: 88-3867843 (W-9 available upon request)
It is acceptable to make checks payable to San Diegans Against Discrimination.
If you are mailing a check, please send it to:
San Diegans Against Discrimination
C/O C. April Boling
7947 Hemingway Ave
San Diego, CA 92120
Street Sweeping Bill Dies One of the few (perhaps only) trades-backed prevailing wage expansion bills to die was AB 1886 by now former Assembly Member (soon to be Sacramento County Sheriff) Jim Cooper. His bill would have made street sweeping a public work meaning every contract driver would be paid the heavy equipment operator wage. So, what happened? Until Wednesday night, the bill had enjoyed party-line support with ample Democrat sycophants to move it along. The Senate sent the bill back to the Assembly on the 29th with 25 aye votes with a couple of Democrat objections, including Ben Allen (Santa Monica), Bob Archuleta (Norwalk), and Ben Hueso (San Diego) voting No and three more Demos absent or abstaining. But when the Assembly considered it on concurrence, it died 38-13-29, a huge undervote as the 29 abstentions were primarily Democrats. These same Democrats had just voted to pass three other PW expansions, so what was different? Well, first, Cooper was one of only six Democrats who had refused to support SB 918 (Portantino), which would have created a new issuing process for concealed carry weapons licenses (CCW licenses) following the June 2022 United States Supreme Court ruling in New York Rifle and Pistol Association v. Bruen. Second, Cooper was chairman of a committee assigned to review AB 1577 (Stone) that would have permitted Legislative employees to unionize. The bill died after Cooper initially refused to allow a vote in his committee on the final night before the lawmakers adjourned for the year. Cooper reversed his decision minutes later and allowed a vote on the bill, which failed to earn enough support for passage. Cooper was joined by Democrats Ken Cooley (Rancho Cordova), Patrick O'Donnell (Long Beach), and Republicans Kelly Seyarto (Murietta) and Randy Voepel (Santee) to defeat the bill in committee. “The reason I held this is not to make these folks take a hard vote,” Cooper said when he spoke in opposition to the legislation. “So, you can get on Twitter. I don't care. You can get on Facebook. I don't care. It's doing what's right.” So, the Assembly played a little tit-for-tat with Cooper’s PW expansion.
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Housing Production Bills Bound for the Governor. Lawmakers moved quickly after announcing a plan to send Newsom two bills taking different approaches to expedited homebuilding on commercial land — both a measure long supported by the State Building and Construction Trades Council (SB 6) and a bill with less-stringent labor rules that the Trades stopped actively opposing (AB 2011).
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Study Finds CEQA Lawsuits Challenged Nearly 48,000 Homes in California in 2020 Lawsuits alleging environmental harm under CEQA challenged roughly 39% of the homes approved in California in 2020, according to a report published by the California Center for Jobs and the Economy this month. The study's authors arrived at its conclusion by obtaining copies of every California Environmental Quality Act lawsuit filed in California that year from the state Attorney General’s office. Those complaints show “groups” opposed 47,999 residential units in 2020. Story
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PAGA News: U.S. Supreme Court Denies Petition for Rehearing in Viking River Cruises, Inc. v. Moriana On June 15, 2022, the U.S. Supreme Court ruled in Viking River Cruises, Inc. v. Moriana that bilateral arbitration agreements governed by the Federal Arbitration Act (FAA) may require arbitration of California Private Attorneys General Act (PAGA) claims on an individual basis only. In early July, Moriana, the named plaintiff-employee at the center of Viking River Cruises, filed a petition for rehearing with the Court. Moriana argued that the Court’s opinion went beyond the federal question and involved the unbriefed issue of state-law contract interpretation and statutory construction that exceeded the Court’s authority. On August 22, 2022, the high court denied the request for rehearing. It issued a final judgment, leaving intact the Court’s analysis of the severability language in Viking River Cruises’ arbitration agreement and the Court’s analysis of statutory standing under PAGA. Story
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Specialty Contractors in High Demand Amid Supply Constraints Steep inflation over the past few months has exacerbated a volatile market for construction materials, further complicating specialty contractors’ efforts to successfully navigate a post-pandemic environment where many markets remain active, albeit with resources in short supply. While there are indications that the spring-summer price acceleration may have abated, if not peaked, subcontractors remain wary. Story
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Court Partially Reinstates Federal Contractor Vaccine Mandate The U.S. 11th Circuit Court of Appeals partially reinstated President Joe Biden’s COVID-19 vaccine mandate for federal contractors but still exempted seven states and members of Associated Builders and Contractors from having to get the shot. The ruling temporarily bars the vaccine mandate for ABC’s members engaged in federal procurement contracts and state agencies from the seven states party to the original suit: Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia. Story
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Who Do (Some) Californians Like for President? Overwhelmingly, according to a new poll, they do not want President Joe Biden to seek another term and see Democratic Gov. Gavin Newsom as a prime contender to succeed him. A recent Berkeley Institute of Governmental Studies poll of California voters underscored the peril for Biden and potential for Newsom. A resounding 61% of voters surveyed online Aug. 9-15 said Biden should not run in 2024, including about half of Democratic voters and most independents. The president’s statewide approval rating sat at a lukewarm 48 percent, with three-quarters of Californians saying the country was on the wrong track. Newsom and Sen. Bernie Sanders (D-VT) — who finished first in the 2020 California primary — were tied as Democratic and independent voters’ top choices to replace Biden, followed by Vice President Kamala Harris. But the largest share of voters were undecided, indicating the nebulous state of the 2024 race. Biden has said he intends to run again. For Newsom to have a path, Biden would need to step aside — and Newsom would potentially have to challenge Harris, with whom he shares a Bay Area base.
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Easier PV Installations? A bill that would make it easier for people in California to put solar panels on their homes cleared the Assembly and is headed to the governor’s desk. State Sen. Scott Wiener’s (D-San Francisco) SB 379 would require counties and cities to use an online permitting software designed to automate approval of residential solar and storage systems to increase the technology’s use and lower greenhouse gas emissions. It was one of the more eagerly watched bills by environmentalists this month because it unexpectedly failed to clear the Assembly Appropriations Committee last year. The California Contract Cities Association argued the bill placed too heavy a mandate on cities. The bill passed 50 to 7 along party lines.
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Arizona Needs to Cut 300,000 Olympic Pools’ Worth of Water. Here Is Who Will Be Hit the Hardest Arizona farms are first in line to bear the brunt of the most significant restrictions on using the Colorado River’s water after officials declared an unprecedented shortage last week. Story
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The ‘Bonus’ Tax Deduction in The Inflation Reduction Act for Construction Firms While most of the tax deductions and incentives to build climate-friendly structures in the Inflation Reduction Act go to building owners, one area can significantly benefit contractors as well, a construction tax expert said. Contractors can earn up to a $5-per-square-foot tax deduction (increased from $1.88 currently) for specific projects under the new law starting in 2023 if they meet prevailing wage and apprenticeship requirements. I bet you didn’t see that coming! Story
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State NEVI Plans Raise Concerns About EV Charging Infrastructure Rollout All 50 states, along with the District of Columbia and Puerto Rico, submitted EV charging deployment plans by the Aug. 1 deadline for funding under the National Electric Vehicle Infrastructure formula program. The $5 billion program created by the bipartisan infrastructure law is designed to develop a network of EV charging stations every 50 miles along the interstate highway system or within one mile of an interstate exit, with the Biden administration’s goal of a total of 500,000 electric vehicle chargers nationwide. Federal funds will cover up to 80% of NEVI project costs. But supply chain and semiconductor shortages could hinder the production of EV charging equipment, especially when combined with Buy America provisions where the U.S. doesn’t have a depth and breadth of DC fast charging manufacturing, causing some industry experts to wonder if this will be yet another government finance boondoggle. Story
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California Air Agency to Ban Sales of Gasoline-Powered Cars by 2035 The California Air Resources Board (CARB) votes Thursday on a sweeping rule requiring all new cars sold in the state by 2035 to have zero emissions — paving the way for other states to adopt the requirement and transforming the country’s car market. The program — announced by Democratic Gov. Gavin Newsom nearly two years ago — would also require automakers to ensure that 35 percent of all new passenger cars sold by 2026 have no emissions. This threshold would increase to 68 percent by 2030. So far, in 2022, about 16 percent of new vehicles sold in California have no emissions.
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Arizona Saw High Turnout in Primary Election Arizona Secretary of State Katie Hobbs has certified the primary election results; she said voter turnout was higher than in previous midterms. Hobbs noted that more than 1.5 million people in the state cast a ballot, marking a voter turnout of about 35%.
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OFCCP Replaces Controversial Directive on Contractor Pay Equity Audits Synopsis. On Thursday, August 18, the Office of Federal Contract Compliance Programs (“OFCCP”) replaced its Directive 2022-01, entitled “Pay Equity Audits” (effective March 15, 2022, the “March Directive”), with a new Directive 2022-01, entitled “Advancing Pay Equity Through Compensation Analysis” (“New Directive”). The New Directive provides that the OFCCP will not require contractors to produce privileged pay analyses to prove their compliance with 41 CFR §60-2.17(b)(3). Section 60-2.17(b)(3) requires contractors to undertake an “in-depth analysis” of their entire employment process to ensure nondiscrimination, including compensation systems. Contrary to the March Directive, the New Directive expressly recognizes a contractor’s right to assert attorney-client privilege and attorney work product doctrine concerning compensation analyses. In addition, the new Directive eliminates the March Directive’s statements that assume, without authority, that contractors are required to perform an undefined “pay equity audit” and replaces that term with “compensation analyses.” More
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Labor Board’s ‘Whore Board’ Graffiti Ruling Survives Review The NLRB had adequate justification for ruling that an aluminum products maker violated federal labor law for firing a worker who wrote “whore board” on overtime sign-up sheets, a divided federal appeals court in Washington held. The National Labor Relations Board’s decision against a Constellium NV subsidiary sufficiently addressed the conflict between Andrew Williams’s protections under the National Labor Relations Act, and the company’s anti-discrimination obligations, the U.S. Court of Appeals for the District of Columbia Circuit said in its 2-1 ruling. Story
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Cal/OSHA Begins Enforcing Indoor Heat Safety Under §3203 Cal/OSHA’s outdoor heat illness prevention standard is well known by employers with employees who commonly work outside. And while there is no official indoor heat illness standard, employers still need to consider heat hazards when evaluating workplace safety, especially considering Fed/OSHA’s National Emphasis Program (“NEP”) for Outdoor and Indoor Heat-Related Hazards. Story
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Leaders Hit the Road to Address Arizona’s Affordable Housing Problem The Arizona Legislature’s committee for housing supply is traveling the state next month to hear from communities about what they need to address housing shortages. The committee will be in Flagstaff, then Tucson, Sierra Vista, and Sedona to take information from constituents. The committee was formed to put together plans to address housing shortages in the state. The National Low Income Housing Coalition estimates Arizona has about 200,000 extremely low-income renter households and only 26 affordable places to rent for every 100 households. The committee expects to have a final report of its findings by the end of the year. [KJZZ]
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Subsidizing Dues California workers who pay union dues will get a tax credit starting in 2024, and the first-in-the-nation proposal could cost taxpayers hundreds of millions annually. A bill introduced in the Senate on Friday fleshed out a proposal for the credit, initially included in the state budget passed in June. State lawmakers and union organizers say the program would help low-wage employees, who are less likely to itemize taxes and weren’t taking advantage of an existing union dues deduction. [Politico]
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LAUSD's Hefty School Board Salaries Spared by Senate Bill “A Senate bill awaiting the governor’s signature would change California’s education code to align with how Los Angeles Unified pays its school board members, allowing for compensation more than five times the code’s initial cap. LAUSD currently pays $125,000 to school board members who do not have outside employment, in contrast to the $24,000 currently allowed for a district of its size under the education code. LAUSD currently operates by a Los Angeles City charter rule, which says compensation should be set by a compensation committee comprising stakeholders and community members chosen by officials outside the district, which the bill would make clear is permissible. The compensation committee’s decisions over salary have put LAUSD board members at a compensation level of nearly seven times the amount earned by board members at the second-largest school district in the state. According to 2021 data from Transparent California, school board members at San Diego Unified earn $18,000 — the maximum under the state cap for a district of its size. The district’s average daily attendance is just under 100,000 for the 2020-21 school year, according to EdData.” [EdSource]
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THC Testing Cannabis is legal in California, but employees and job applicants can still be fired or denied employment for using it off the job. A bill prohibiting employers from testing workers and applicants for traces of non-psychoactive cannabis cleared the state Legislature Tuesday. If Newsom signs Assemblymember Bill Quirk’s (D-Hayward) AB 2188, California will become the seventh state to offer such protections to recreational users and the 22nd to shield medical users. Jobs requiring a federal background test, or a drug test under federal or state law, would be exempt from the ban, as would construction operations. For supporters, it’s a common-sense change: Employees shouldn’t be punished for using a legal substance during their free time, especially since they can test positive for doing so weeks after use. But business interests have fought the bill, warning they could face lawsuits if they punish employees for legitimate causes, such as on-the-job pot use. [Politico]
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