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Legislative Weekly
September 13, 2002
Pseudo Safety Bill Further Criminalizes the Workplace
 Alquist |
AB 2752 creates a new "adverse employment action” violation that is defined as “a discharge, demotion, or suspension of an employee, or an action that threatens to discharge an employee, or in any other manner discriminates against an employee in a term or condition of employment". A violation of this provision would result in a supervisor or manager being held personally liable for $7,500 or the value of the employee's lost wages and benefits, whichever is greater; reinstatement, other pecuniary losses, or reasonable attorneys’ fees and costs. This extraordinary and unprecedented recovery could be triggered by such minor violations as a change of an employee's work hours or workstation with no reduction in pay (completely unrelated to safety).
CMTA is very concerned that this provision would also significantly increase the number of complaints being filed because of the added monetary incentive for the employee and fees for attorneys. Our belief is supported by the fact that the bill removes these violations from control of the Labor Commissioner by permitting a civil suit to be filed at any point without notice. In fact, we believe that this provision reveals the real purpose of AB 2752: To create a new and more lucrative litigation venue for applicant attorneys and covering it up with a smoke screen safety provision.
AB 2752 establishes two new crimes where an action is taken against an employee who refuses to perform so-called unsafe work. It provides fines up to $100,000 and one year in jail for supervisors and managers and up to $1,500,000 in fines on corporations. The bill also provides a $15,000 fine and one-year jail term where a supervisor or manager refuses or $150,000 fine where a corporation refuses to rehire, promote or otherwise restore an employee who has otherwise been determined to be eligible. Both of these provisions are already covered in current law and the normal recovery for these violations is for the employer to make the worker whole, i.e., back pay, promotion, reinstatement etc. With no empirical evidence presented to show that this is a significant problem in the workplace, AB 2752 provides draconian fines and penalties for these infractions that would bankrupt many employers and make California safety and health rules the most onerous in the nation.
AB 2752 completely ignores an employer's right to “due process” and the privacy right of individuals. For example, if an employee believes that he or she has been subjected to adverse employment action and files a complaint to the division, the division must commence an investigation within 10 days. Within 10 days of notice, an employer would have to provide, without a request for discovery, the division AND the individual personal information on any persons who might have information, plus any information, data, tangible items etc., that could be used by the employee to support their complaint or rebut a defense of the complaint. This is a gross abuse of the administrative process where a government mandate is used to breach the discovery process and violate the privacy rights of individuals to require employers to provide otherwise protected information to a claimant that could be used in the civil courts.
CMTA believes that AB 2752 is without merit and would only add to the belief of many employers that California is fast becoming a hostile state in which to conduct business. We strongly recommend you write, call or fax Governor Davis and urge him to veto AB 2752.
More info on other key bills on the Governor's desk
Governor Signs SB 688 Sweeping Changes to Summary Judgment Law
 Burton  Wesson |
Several companies are giving serious consideration to sponsoring a referendum on the summary judgment portion of SB 688. The only way to avoid having SB 688 take effect (on January 1, 2003) is to qualify a referendum on all or a part of the bill. The Civil Justice Association of California estimates that to qualify, the referendum will cost between $2 and $2.5 million. To conduct a campaign in 2004 is estimated to cost several times that amount.
One very compelling reason to support a referendum effort is to send a message to the Legislature that the business community will not sit back and allow these last-minute attacks on such an important protection against frivolous lawsuits.
If any company is interested in directly participating in a referendum's effort, contact Matt Sutton: msutton@cmta.net.
Davis Signs Renewable Portfolio Bill
 Sher |
The RPS requirement will also apply to energy service providers, beginning in 2006, or the date a contract between an ESP and retail customer expires, whichever comes first. The bill requires the California Public Utilities Commission to institute a Rulemaking to determine the manner in which ESPs will participate in the RPS.
Under the bill, the CPUC will establish a benchmark price for renewable power procured by the state's investor-owned utilities. Power priced below the benchmark will be recovered in rates and power priced above the benchmark will be recovered through the public goods charge (PGC) already collected.
CMTA, citing cost concerns and the potential for future increases in the PGC, urged Governor Davis to veto the bill. The main reason for CMTA's opposition is that the bill does not contain an explicit cap on the PGC. The bill's lack of an explicit cap on the PGC leaves large commercial and industrial customers vulnerable to an increased PGC as a result of the new RPS mandate.
Both the legislative author and the governor dodged the issue of future PGC increases, opting not to insert clarifying language specifying that only existing PGC funds should be utilized for the RPS, and that no additional costs should be put on customers.
The bill requires the California Energy Commission to allocate and award supplemental energy payments to cover the above-market costs of renewable power, provided sufficient PGC funds are available for this purpose. Because there is only a finite amount of PGC funds, the higher the above-market costs, the sooner this above-market subsidy runs out. This will in turn increase pressure on state policymakers to reauthorize PGC funding to make up for the shortfall.
Additionally, the provisions in the bill requiring that employees engaged in the construction, operation and maintenance of these renewable projects be paid the prevailing wage will hamper the development of renewable power in California, and drive up the cost of this power. These increased costs will hasten the shortfall of PGC funds, and the push for increased PGC funding that will inevitably result.
SB 1078 also contains cost-recovery provisions for utilities that will expose ratepayers, including large, industrial customers, to unknown increased costs for transmission upgrades. The bill provides that an application by an IOU to allow construction of new transmission facilities that are necessary in connection with renewable projects "shall be deemed necessary" by the CPUC.
Prop 50 - Water Bond - Bait and Switch?
One of the more divisive ballot initiatives facing voters in November is Proposition 50, the Clean Drinking Water, Coastal and Beach Protection Act of 2002. Unlike prior water bonds, Prop. 50 was drafted behind closed doors by The Nature Conservancy and the Los Angeles Metropolitan Water District, circumventing the legislative process and leaving myriad water stakeholders, including business interests, without a role in negotiating its elements. The result is a bond that is skewed dramatically toward land acquisition and other special interest (largely environmental) priorities without any real consideration for the state's long term water supply needs.
Of the $3.44 billion dollars at issue, 44.6 percent (1.535 billion) is dedicated to land acquisition for environmental purposes, some of which could interfere with future water supply development. The true land acquisition funding percentage could be even higher given that some of the “water supply” money is actually earmarked for land acquisition. Only $50 million goes toward planning for off-stream storage, and specific language prohibits the use of any other funds for storage purposes, even for storage projects identified by Cal Fed. Other funding priorities reflect the relatively narrow interests of the proponents.
Prop. 50 would also set a dangerous precedent for future water and land use projects by conditioning certain uses of moneys dedicated to drought protection, water quality improvement and local water security on full mitigation of any negative environmental impacts. This standard goes far beyond the existing California Environmental Quality Act (CEQA) standard which stipulates that any significant environmental impacts must be mitigated unless a lead agency determines that overriding considerations justify project approval. If the Prop. 50 campaign is successful, one would expect that the environmental community will attempt to condition funding of future infrastructure projects on meeting this virtually impossible mitigation standard.
While manufacturers may not be on the front lines of California's water wars, they do have a stake in water quality and supply issues, and the economic growth potential that a viable water supply represents. Certainly, some of the projects identified in Prop. 50 are meritorious and can play a role in defining the balanced water policy that California so desperately needs. However, a bond that fails to include any meaningful water supply components may only serve to further diminish California's bonding capacity and dissuade voters from supporting future initiatives that actually respond to the state's water supply needs.
CMTA has not yet taken a formal oppose or support position on this proposition. For more information, contact Jeff Sickenger.
Manufacturing Fact
Between 1992 and 1998 Texas led the nation in creating manufacturing jobs, especially electronics and computer manufacturing, with 72,000 new jobs. And in California? This state lost 39,000 manufacturing jobs in the same period.
Talking Point
Because of the high cost of running an industrial facility here in California, abandoning the state has become a positive signal to investors. The recent and future gradual departure of manufacturing facilities should be considered in all economic policy decisions in the 2003 legislative session.
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