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WECA Political Update January 19, 2023

Thursday, January 19, 2023

California Labor Commissioner Issues FAQs Clarifying Pay Transparency Law California enacted a pay transparency law (SB 1162) requiring employers with 15 or more employees to disclose pay scales in job postings beginning January 1, 2023. The Labor Commissioner recently issued guidance in the form of FAQs to address some of the unanswered questions regarding the interpretation and enforcement of the California Equal Pay Act.

The law expands pay data reporting requirements for California employers with 100 or more employees. It requires employers with 15 or more employees to include the “pay scale” for a position in any job posting. However, the law is silent on some key issues, such as: (1) how to determine the 15-employee threshold for coverage; (2) how to calculate the “pay scale;” and (3) whether positions that are not required to be filled by a California employee are covered (i.e., remote positions that may, or may not, be performed outside of California). The FAQs provide helpful guidance to address these questions.

The Labor Commissioner’s FAQs clarify the following:

  • Determining 15 Employee Limit: The Labor Commissioner’s guidance explains which individuals companies must count to determine whether an employer is covered under the law and, therefore, must disclose pay scales in job postings. Specifically, the law applies when (1) an employer reaches 15 employees at any pay period and (2) one employee is currently located in California. When calculating the 15-employee minimum threshold, “bona fide” independent contractors are excluded, while exempt employees, part-time workers, minors, and new hires are included.
  • Defining Pay Scale: The law defines “pay scale” as the salary or hourly wage range that the employer reasonably expects to pay for the position. The FAQs clarify that “pay scale” excludes bonuses, commissions, tips, or other benefits. However, if a position’s salary or hourly wage is based in whole or in part on either commission or a piece rate, then the commission range or piece rate the employer reasonably expects to pay for the position must also be included in the job posting.
  • Posting Requirements: The guidance clarifies when and how the new “pay scale” information must be disclosed. The FAQs explain that the “pay scale” must be included within a job posting if the position “may ever be filled in California,” either in-person or remotely. The wage info must be displayed in the job posting and cannot be included via a link or QR code. 

Considering the Labor Commissioner’s FAQs, California employers should thoroughly review their job postings to ensure compliance with the new pay transparency law and the Labor Commissioner’s guidance. They should consult counsel before revising or posting new job positions in 2023. Story

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Cal/OSHA Approved COVID-19 Prevention Non-Emergency Regulations On December 15, 2022, the California Occupational Safety and Health Standards Board (Cal/OSHA) voted to adopt COVID-19 Prevention Non-Emergency Regulations (Non-Emergency Regulations). Approval by the Office of Administrative Law (OAL) is expected shortly, and the new regulations are expected to take effect this month. Although the new regulations include requirements like those currently found in the Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards (ETS), the Non-Emergency Regulations also incorporate significant differences that will change how employers engage with their employees and operate their businesses for COVID-19. Story

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California Legislators Have Refused to Fix CEQA. Davis Law Professor Offers Advice to Newsom and the Courts to “Take Charge” Chris Elmendorf is the Martin Luther King, Jr. Professor of Law at UC Davis and a longtime resident of San Francisco. He wrote this (#nottheonion) for the San Francisco Chronicle. “The California Environmental Quality Act — colloquially known as CEQA — has long been considered the state’s flagship environmental law. Debate over whether CEQA deserves to retain that status, however, has grown heated in recent years. The nub of the problem is that the law’s central premise doesn’t fit the great environmental problems of our day. It wouldn’t be hard for the Legislature to resolve CEQA’s flaws, but there’s no political will to do it. That’s because CEQA, in practice, is not just an environmental protection law. Trade unions have become experts at using the threat of CEQA litigation to extract labor agreements from developers. Time is money — literally — for project investors, and litigation and delay have become so costly that developers of high-value projects will gladly incur substantially higher labor costs to avoid it. On smaller, more financially marginal projects, however, developers can’t afford the extra labor costs or the risk of delay. So, these projects don’t get proposed at all. Perhaps not surprisingly, the trades have defeated almost every legislative proposal to streamline CEQA review of green projects — unless the bill comes with labor requirements that raise the cost of building the very things we need the most. A couple of years ago, the Planning and Conservation League Foundation convened a group of veteran CEQA attorneys from across the ideological spectrum to develop a consensus proposal for modest procedural reforms. Even this was too much for the trades, which killed it. Story

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2024 Election Season is On Politico notes it’s “game on” for 2024. “Thirteen months before the primary and 400 miles from her home base, Rep. Katie Porter held the first event of what promises to be a raucous U.S. Senate race. The Orange County Democrat kicked off her campaign with a visit to the East Bay’s Rossmoor Democratic club, a rich vein of three critical resources: donations, volunteers and high-propensity Democratic voters. It’s also all but impossible to win statewide without piling up votes in the Bay Area. ‘The fact that she’s here within a week of announcing her candidacy means Northern California is in her heart,’ Assemblymember Rebecca Bauer-Kahan told a crowd of hundreds in an intro speech (RBK is so far neutral in the Senate race.). Whiteboards were featured heavily — fittingly, since Porter built her reputation by grilling executives with her signature prop and is centering her campaign on countering entrenched interests. A few women in the audience had specially made “4 Katie!” mini whiteboards pinned to their shirts. An emcee screened a video of one memorable interrogation and recounted others to murmurs of recognition. Porter boasted about lobbyists cowering from ‘the whiteboard treatment.’ California, she said, needs ‘our best warrior in the Senate.’ In a possible preview of how she’ll approach Democratic rivals, she said it’s for ‘a fresh new voice.’ Porter was able to get in front of potential voters before the competition because she didn’t wait for Sen. Dianne Feinstein to confirm the pervasive presumption that she won’t seek another term. Before holding the cycle’s first campaign event on Tuesday, Porter issued the first strength-signaling fundraising release ($1.3 million in 24 hours) and rolled out the first high-profile endorsement (Sen. Elizabeth Warren, her mentor and former professor). But she won’t long have the field to herself. Rep. Barbara Lee has already said she’s in, and Rep. Adam Schiff shouldn’t be far behind. To differentiate themselves from rival Democrats, they’ll need to put in the time with the party faithful at Rossmoor-like clubs around the state. They’ll also need to raise enormous sums of money — and a key to that is accumulating numerous small-dollar donors, like the types of people who show up to a campaign event on a Tuesday night many months before they’ll cast a vote. Porter has demonstrated fundraising acumen — and some ground to make up. She raised more than $25 million last cycle but spent some $27 million to survive a bruising reelection race, leaving her with about $7.7 million at November’s end. Schiff, ensconced in his safe Los Angeles district, raised a similar amount but spent markedly less than Porter, leaving him with more than $20 million on hand. Lee, who is less of a fundraising juggernaut, had $54,000.”

Dan Walters opines on the race here.

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And because Porter will give up her hard-won and costly house seat to run for Senate, it Opens Up a Desirable House Seat. There is a new contender for Porter’s opening House seat: Democratic state Sen. Dave Min is running for CA-47 with an endorsement from Porter, who said in a statement Min has “proven that he can win in this area while delivering on a progressive agenda.” Min finished behind Porter in the 2018 House primary. He joins a field that includes former Democratic Rep. Harley Rouda and former Republican Assembly member Scott Baugh. One big winner from this development is State Sen. Josh Newman of Fullerton. Last year, California’s redistricting commission put Min and Newman, both Democrats, in the same district. Min’s announcement spares Newman the prospect of an incumbent-on-incumbent fight. Min unseated Republican state Sen. John Moorlach in 2020, flipping one of that cycle’s most contested state Senate seats. He represents much of Porter’s district in the Legislature and could show strength with its large Korean-American electorate. More

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And another look at the Senate Race is Everyone for Themselves — “California’s shadow Senate campaign is already spilling out into the light,” said the Daily Beast’s Sam Brodey. “No matter how the eventual field shakes out, California politicos are bracing for a bruising intra-party battle royale. In the state’s election system, the top two vote-getters in the primary advance to the general election, regardless of party — which means that in this deep blue state, a Democrat-versus-Democrat matchup in November 2024 is not only possible, it’s likely.”

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Klobuchar Leery of Silicon Valley Influence: Their Cash, Not So Much Sen. Amy Klobuchar (D-Minn.), one the chief architects of last year’s Senate push to rein in tech giants, went to Silicon Valley to raise money for her reelection, according to a recent story. She held a fundraiser at the Palo Alto of venture capitalist Greg Sands and his wife Sarah. According to the invite, the event was organized by the Bay Area fundraising group Electing Women Bay Area. Greg and Sarah Sands are longtime Democratic donors who bundled at least $25,000 for Klobuchar’s 2020 presidential bid, according to an archived page on the campaign’s site. They also hosted fundraisers for Hillary Clinton in 2016 and Joe Biden in 2019. For Klobuchar, tonight’s fundraiser will take her onto the home turf of several top foes whose furious lobbying efforts last year sank the senator’s bipartisan antitrust push. Tickets started at $1,000 for guests to get face time with Klobuchar, who chairs the Senate’s antitrust subcommittee and has vowed to forge ahead with efforts to crack down on the dominance of tech companies like Apple, Meta, Amazon, and Google. And in case you’re wondering, no, I did not attend.

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And You Thought 2024 Would Be Biden vs. Trump? Five hundred and thirty-one people have filed with the Federal Election Commission (FEC) to run for president in 2024 as of January 17. The list includes 77 Democratic candidates (14.5%), 145 Republican candidates (27.3%), and 309 nonpartisan or minor party candidates (58.2%). This figure excludes candidates whose filings have expired or were identified as fake candidates (George Santos?). Any person running for president that raises or spends more than $5,000 for a campaign must file a Statement of Candidacy with the FEC within 15 days. To do so, that person must be a natural-born citizen of the United States, at least 35 years old, and a resident of the United States for at least 14 years. A Statement of Candidacy includes basic information like the candidate’s name and address and any campaign committees working for them. The number of filings in the 2024 election is the third-most in 40 years. In 2016, 1,762 candidates filed with the FEC to run for president. In 2020, 1,212 candidates filed.

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Ouch! Major Orange County Republican Group Lost on 96% of its Local Bets in Latest Election The Voice of OC reports: “They’ve been a dominant force in Orange County elections for decades. In the November election alone, the Lincoln Club of Orange County spent nearly $1 million on local races, weighing in on campaigns for county supervisor, city council, and school board. But this time, the club – one of the county’s most prominent GOP spending groups – lost most of its bets. A whopping 96% of the group’s major spending on local races went to support candidates who lost or opposed people who ended up winning.” Story

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Sinema Angles for Approps Sen. Kyrsten Sinema (I-Ariz.) is eyeing a seat on the powerful Appropriations Committee, according to two people familiar with the matter. Sinema is entering her fifth year in the Senate, a level of seniority that puts her in contention for the plum gig. However, there’s a new dynamic in town: Sinema left the Democratic Party to go independent, though she is still essentially a part of the Democratic Caucus. Regarding timing, Senate leaders are still working out the committee ratios, and it’s unclear when they will be announced.

And Sinema may have her hands full in 2024! The Washington Post reports Kari Lake, Blake Masters, Pinal County Sheriff Mark Lamb, and Karrin Taylor Robson are all “seriously” considering jumping into the 2024 Arizona Senate race. No word on former Governor Doug Ducey, whose race for Senate was torpedoed by DJT because Ducey wouldn’t embrace “the steal.”

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California’s Top Oil Regulator Abruptly Exits: SV Sun reports “For the second time in two years, the Golden State’s oil czar is hitting the exits after ruffling one too many feathers with environmental activists. Uduak-Joe Ntuk took over running California’s Geologic Energy Management Division (or CalGEM) in late 2019 after his predecessor, Ken Harris, was sacked by Gov. Gavin Newsom for quietly approving a hefty number of fracking permits. Since Newsom took office, Sacramento has focused on virtually eliminating all oil production. CalGEM (formerly named the clunky “DOGGR”) has retained its position as the most demanding regulatory agency to balance ongoing needs with Sacramento’s demands.”

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Solar Struggles: Three environmental groups filed an appeal this week, insisting the California Public Utilities Commission (CPUC) reconsider a decision to slash the prices utilities must pay new rooftop solar customers for excess power. The Center for Biological Diversity, Protect Our Communities Foundation, and the Environmental Working Group said in a news release announcing their appeal that the change “threatens the growing rooftop solar market and puts affordable and resilient renewable energy out of reach for most communities.” The CPUC sharply reduced the rates for customer-generated power in a December decision that also eliminated a solar tax. Commissioners said the change was aimed at encouraging new customers to add battery storage at their homes to help offset heavy energy usage during California evenings when solar generation stops. A CPUC spokeswoman said the program has essentially subsidized electricity prices for wealthier Californians who can afford rooftop solar. The appeal asks the CPUC to reconsider the analysis that led to the December net metering decision and to reverse it, saying it fails to fulfill state statutes that require growth of distributed renewable generation, including among disadvantaged communities. I, for one, am not holding my breath. The CPUC was unanimous in voting for NEM 3.0, and I doubt any commissioner, much less a majority, will say, “Whoops, my bad.”

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And We’re Done Republican David Shepard conceded his race for Senate District 16 (Sanger). His statement reads: “Thank you to the constituents of Senate District 16. This race has been historically close, and as the recount draws toward the end, I believe our path forward to victory is no longer feasible. From our 22-vote deficit, our recounting of ballots closed the gap to 13 votes. This means that nine voters who initially were prevented from voting in this election had their votes tallied. This election has exemplified the saying that, ‘every vote counts.’ Although the result is not the one we had hoped for, I am so incredibly thankful for the team that surrounded me during the recount and believed in me and my candidacy for state senate.” Shepard is a supervisor of table grape operations for his family’s farming company EW Merritt Farms.