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Doctors, real estate agents and hairdressers can keep their independent contractor status—but not truckers, commercial janitors, nail-salon workers, physical therapists and, significantly, gig economy workers, who will gain the rights and benefits of employees in California under sweeping workplace legislation passed this week.

Gov. Gavin Newsom has committed to signing the bill, which cleared the Assembly 56-15 in a challenge both to the longstanding trend toward outsourcing labor and to the business model of companies such as Uber, Lyft and DoorDash, who have threatened a $90 million fight at the ballot box.

Once signed, AB 5 would upend longstanding employment practices that have seeped into the Democratic presidential debate about how workers should be treated, particularly in today’s gig economy.

“With one clear test across our state labor laws, we will raise the standards for millions of workers and ensure they gain access to critical rights and benefits,” said Sen. Maria Elena Durazo, who presented the bill in the Senate on Tuesday night. “We can make California the global leader in protections for gig workers, janitors, construction workers and so many working people who can’t even pay their rent.”

Lyft spokesman Adrian Durbin said lawmakers missed an opportunity to find a flexible solution for rideshare drivers, and Uber announced it was ready to pour millions more into the ballot fight. “We are fully prepared to take this issue to the voters of California to preserve the freedom and access drivers and riders want and need,” Durbin said.

From the beginning, the bill’s author, Assemblywoman Lorena Gonzalez, a labor organizer and a Democrat from San Diego, made it clear her goal was to improve wages and workplace standards, and expand the right to collective bargaining at a time of growing income inequality.

She acknowledged more work remains but insisted the legislation is needed to establish a state standard after the California Supreme Court, in a landmark 2018 decision, created a strict test for certifying independent contractors, with the highest hurdle being that the work performed must be outside of the core of the company’s business. It’s commonly referred to as the Dynamex decision.

In advance of the vote, she shared a picture of a sentence plastered to the top of a wall in her office: “The Most Amount of Good for the Most Amount of People.”

California’s pushback against the gig economy intensifies pressure on Silicon Valley flagships such as Lyft and Uber, which were already trading below their IPO share prices amid investor concerns about the difficulty they’ve had turning a profit, despite many millions of users. Uber cut 400 people from its marketing team in July, reported a quarterly loss of $5.2 billion in August and sent layoff notices to another 400-plus workers this week.

On Wednesday, Uber chief legal officer Tony West said in a press call that the company plans to fight the tougher employment test once AB 5 takes effect next year. “We still may pass the test,” he said. “We believe we can pass the harder test.”

But concerns around basic worker protections also have become pressing in California, where one worker in three earns less than $15 an hour; also, the 18.2 percent poverty rate, when the cost of living is taken into account, is rivaled only by that of Washington, D.C. As lawmakers were debating AB 5, in fact, a commission on the future of work, appointed by Newsom, was convening not far away in Sacramento to address such issues as the proliferation of low-wage jobs, automation, artificial intelligence and the gig economy.

Aside from the philosophical questions around AB 5, the state estimates it loses about $7 billion a year in payroll taxes due to worker misclassification that could be supporting schools, roads and other public services. Supporters of the bill argue that by avoiding unemployment insurance taxes and workers’ compensation premiums, businesses shift the burden to the state—and its taxpayers—when workers get laid off, get sick or get injured on the job.

Opponents warned the bill will invite trial lawyers to file frivolous lawsuits against thousands of California businesses and called the bill a blatant power grab by big labor.

“This bill is the union caucus’ main event of the year,” said Republican Sen. Jeff Stone, who held up an exemption request form, obtained by CalMatters, that labor groups had been presenting to industry advocates seeking a carve-out.

Industries as varied as trucking and health care also pushed back, arguing that the legislation would rewrite the rules for independent workers whose status has worked for them for decades.

“AB 5 does not take into account the more than 70,000 California truckers who have built their business around the independent owner-operator model, invested hundreds of thousands of dollars in their trucks and have made the decision to run their own businesses,” said Shawn Yadon, CEO of the California Trucking Association, before the bill passed.

Hospitals, too, are worried the bill will not only cause confusion, but may have the unintended consequence of delaying patient services. Gail Blanchard-Saiger, vice president of labor and employment at the California Hospital Association, said although doctors, psychologists and podiatrists are exempt from AB 5, and hospitals employ more than 90 percent of their workforce, many medical professionals such as physical therapists and certified registered nurse anesthetists are contracted at small and rural hospitals where volume is low.

“The impact on the hospital for these health professionals is probably a delay in services, and in particular rural communities, maybe a reduction in services,” said Blanchard-Saiger.

Among the other health professionals not exempt under AB 5: occupational therapist, speech therapist, optometrist, nurse practitioner, physician assistant, radiation therapist, licensed professional clinical counselor, marriage and family therapist, licensed clinical social workers, respiratory therapists and audiology.

In the final weeks of the legislative session, gig companies unsuccessfully campaigned heavily for a new, first-in-the-nation framework that would allow their workers to remain independent while offering a wage floor and some kind of bargaining tool. And on Tuesday, Newsom told The Wall Street Journal that he is still talking to Lyft and Uber, “and regardless of what happens with AB 5, I am committed, at least, to continuing those negotiations.”

The San Francisco Chronicle reported potential legislation calling for a new category of workers—to be known as “network drivers”—to cover rideshare and delivery service drivers, guaranteeing at least 1.27 times minimum wage, reimbursement of 30 cents a mile and contributing 4 percent to a Drivers Benefits Fund to purchase workers compensation insurance and other benefits.

Uber and Lyft say the codification of the Dynamex decision—that established a three-part test for certifying contractors—will force them to fundamentally change their hiring practices. It likely means the rideshare industry will take on fewer drivers and assign shifts, giving drivers less flexibility.

Labor representatives called it a scare tactic and said nothing prevents companies from maintaining flexibility for workers.

In shifting to employee status, companies would have to offer basic worker protections such as guaranteed minimum wage, overtime pay, contributions to Social Security and Medicare, unemployment insurance and disability insurance, as well as workers’ compensation, sick leave and family leave. Workers could also get reimbursed for mileage and maintenance of their vehicles, which doesn’t happen now.

The bill triggered several rounds of protest at the Capitol with Uber and Lyft drivers circling downtown Sacramento one day, followed by truckers honking their heavy-duty trucks the next day.

Under the final version of the bill, doctors, dentists, lawyers, architects, engineers, accountants, insurance agents, real estate agents, hair stylists and barbers received exemptions. Travel agents, graphics designers and grant writers will continue to offer their professional services without disruption. Licensed cosmetologists and barbers that set their own rates and schedules won’t change. Commercial fisherman are exempt until 2023. Tow-truck drivers affiliated with the American Automobile Association got a carveout. And freelance writers and photographers can continue, provided they don’t submit more than 35 submissions to an outlet a year.

On the other end, AB 5 captured the industries targeted by labor: gig workers; big-rig, Amazon and other truck drivers; and low-wage services ranging from janitors to home health aides. Unlicensed nail technicians, language interpreters, musicians, strippers and even rabbis could be impacted.

If approved, the bill will take effect in January and gives the state attorney general and large cities the right to sue companies that don’t comply. San Francisco City Attorney Dennis Herrera and Los Angeles City Attorney Mike Feuer both say they would ensure workers are treated fairly.

“The city attorney welcomes the new authority, and if enforcement action is needed under the new law, he will exercise it,” said Feuer’s spokesman, Rob Wilcox.

During debate before the Senate vote, Republicans sought to include hostile amendments aimed at expanding exemptions for newspapers, physical therapists, the timber industry and more. Each was tabled by Democrats who control both houses of the Legislature.

Gonzalez, however, did agree to exempt the newspaper industry from converting carriers for one year.

“While I personally disagree with this delay, I’m willing to allow the newspaper industry the additional year to comply if it means those delivery drivers and nearly a million other misclassified workers are provided the minimum wage, benefits and workplace rights of Assembly Bill 5,” she said.

A few industries did get the exemption they sought, such as builders and contractors. Peter Tateishi, CEO of the Associated General Contractors of California, said his organization ended up backing the bill after being allowed to contract with other contractors under a business-to-business carve-out.

CalMatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Politics

Do you freelance in California? Have a side hustle? Drive trucks? Work construction? Do nails? Work on political campaigns? Then you should be paying attention to a major employment fight coming to a head in Sacramento.

In the coming weeks, the state Senate will begin hearings on a bill that will make it harder to classify workers as independent contractors, officially codifying a sweeping 2018 California Supreme Court decision. The so-called “Dynamex” bill, supported by organized labor and named for the court case, has made headlines for threatening the on-demand business model made popular by the likes of Uber, Lyft, DoorDash and Postmates.

Less discussed, however, is the extent to which Assembly Bill 5 could sweep up some 2 million workers across industries far from the sharing economy and tech sectors, from truck drivers and general contractors to nail salons, strippers and perhaps even the freelance writers for this newspaper. The proposal has so unsettled mainstream businesses that they’ve banded together with sharing economy disruptors to run an “I’m Independent” campaign.

The legislation would rewrite the rules for when a worker is deemed an official employee, upending longstanding employment practices by winemakers, private investigators, music schools and other enterprises.

“Does AB 5 have very wide repercussions? Yes, that’s what makes the negotiations very complicated,” said labor-rights attorney Bill Sokol, who teaches employment law at San Francisco State University and is not a part of the negotiations.

California has long led the nation on employment practices, and AB 5 may be just the beginning as policymakers wrestle with updating labor codes in today’s app-for-hire world. Though the high court decision clearly raised the bar for treating workers as independent contractors rather than full employees, the devil is in the details that will be spelled out in the pending legislation.

AB 5 is being lobbied heavily both by business advocates and by organized labor, which seeks to ensure that gig-economy workers have workplace protections, including the right to collective bargaining. It has also put Gov. Gavin Newsom, who wants to be viewed as an ally to both labor and tech, in an awkward position.

“Everything is up for grabs,” Sokol said. “There’s no way to predict who’s going to end up with what. But labor recognizes that the American workplace they have traditionally organized—those worker relationships—have changed, and the laws have not kept up with them.”


Labor groups led by the 2 million-member California Labor Federation have united behind the proposal to limit the use of independent workers. Their contention: The gig economy has opened the door to mass exploitation of low-wage workers, a trend that is worsening income inequality.

Too many employers misclassify employees in order to cut costs, the unions argue, and strong curbs on the use of independent contractors, who aren’t eligible for many of the benefits and workplace protections mandated for regular employees, would slow that. Those curbs would also make it easier to reach groups, such as general contractors, that have long been difficult to organize.

But business advocates warn the change would dramatically ramp up labor costs in California, and have dire consequences for the state’s economy. In some sectors, such as ridesharing, widespread contracting isn’t even the long-term business model—it’s just an intermediate phase on the way to automation. Uber or Lyft, both headquartered in San Francisco, might stop operating in California altogether, they say.

Their hope is to carve out a third way that would allow employers to grant some benefits without having to categorize workers as full employees.

“We have a completely different economy,” said Jennifer Barrera, executive vice president at California Chamber of Commerce. “We have a huge group of individuals who really value their flexibility and control over their own schedule, and I don’t think it has to be one or the other.”

The California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles dealt with a same-day courier service that, to save money, had converted all its employees to independent contractors. A former employee claimed the shift was a Labor Code violation, and the litigation that ensued ended up reinterpreting a longstanding test for classifying workers. The ruling instead established a three-part test for certifying independent contractors, with the highest hurdle being that the work performed must be outside the core of the company’s business.

Even though the Dynamex decision is already law, labor representatives say many companies have been flouting it. AB 5 would ensure that workers would not have to file suit on a case by case basis to seek enforcement.

“There’s a whole bunch of things that they’re currently being cheated out of, frankly,” said Steve Smith, with the Labor Federation. “With respect to Uber and Lyft, it’s the exploitation they subject their workers to on a daily basis. Many of these workers are not receiving minimum wage; they are misclassified as contractors when they actually should be considered employees, meaning there’s a whole host of benefits they’re not getting that they should get like everyone else.”

In steering more people to employee status, the bill would force companies to offer basic worker protections such as guaranteed minimum wage, overtime pay, contributions to Social Security and Medicare, unemployment and disability insurance, workers’ compensation, sick leave and family leave. Workers could also get reimbursed for mileage and maintenance of their vehicles.

The state estimates it loses about $7 billion a year in payroll-tax revenue due to worker misclassification that could be supporting schools, roads and other public services. And by avoiding unemployment insurance taxes and workers’ compensation premiums, businesses shift the burden to the state when workers get laid off, get sick or get injured on the job.

“These billion-dollar companies can complain, but we have to ask ourselves as taxpayers: Should we subsidize their business by subsidizing their workers?” said Assemblywoman Lorena Gonzalez, a former labor organizer from San Diego who is author of AB 5. “That’s what happens when you don’t adequately compensate workers.”

She dismisses the idea that Uber and Lyft will flee the fifth-largest economy in the world. More likely, the lawmaker predicts, Uber and Lyft will make the changes required by law, because there’s a massive market for transporting individuals and goods in California. If they can’t manage it, she says, then someone else will.


Gonzalez’s bill is triggering pushback in part because the impact of the high court ruling is far broader than many Californians expected. Gonzalez says she’s heard, for instance, from newspaper publishers who want to keep using freelance journalists and beauty salons that rely on nail technicians. She’s even rattled folks in her own world of politics, because her bill would reclassify campaign workers as employees, not contractors.

Chris Shimoda, vice president of government affairs with the California Trucking Association, says trucking has been a pathway for people without advanced degrees to make more money. In fact, about 80 percent of drivers in the industry have a high school education or less, he said. But if firms are required to employ their own drivers, independent drivers who own their own $150,000 Class 8 heavy duty trucks may not be able to find work.

“We all agree there should be a pathway, especially for the blue-collar working class to rise up the economic ladder,” Shimoda said. “It’s just: What are the rules for the labor and employment law side of things? If there are specific things that have been abused, then what are those, and how do we reconcile that through this bill?”

As his association works to ease the potential impact of AB 5 on those drivers, the trucking industry has challenged the Dynamex decision in federal court, arguing that federal laws governing motor carriers pre-empt the state test.

Peter Tateishi, chief executive officer of the Associated General Contractors of California, which represents construction firms, said the bill would disadvantage small businesses, many of which are women-owned and minority-owned firms, that subcontract with builders, because contractors won’t be able to get outside help.

As for Uber and Lyft, the rideshare companies have sought compromise and held back-channel negotiations with the Teamsters and Service Employees International Union. The Labor Federation, however, remains committed to full employment status for rideshare workers. As a result, the gig economy companies have sought support in the court of public opinion.

In an open letter, Uber Chief Executive Dara Khosrowshahi and Lyft co-founders Logan Green and John Zimmer proposed maintaining their drivers’ freelance status but granting access to some employee benefits such as paid time off and retirement accounts. The executives, whose combined worth is over $1 billion, offered to form a new driver association to advocate for the drivers’ interests.

“We are public companies that tens of millions of people rely on for mobility and work,” they wrote. “If there ever was a time for new policies, it’s now.”


This week, the “I’m Independent” coalition led Uber and Lyft drivers around the Capitol to meet with lawmakers and staff to voice their desire to remain freelancers.

“I’m very offended that they would think they’re doing us a favor by calling us employees,” said Vivian Mallory, a 60-year-old Uber driver in Sacramento. “We want better rates, and we want more opportunities for benefits. I think we’re not against the bill being passed, but I think we want changes in the language.”

Mallory says she’s strategic about picking up longer rides that pay more and was able to average $4,800 a month last year driving. Another Uber driver, James Kyle, 58, of Roseville, said he needs to remain an independent contractor, because he works seasonally at charity golf tournaments.

“They’re taking the fun away from it,” Mallory said.

AB 5 supporters counter that drivers will continue to maintain a flexible schedule, because rideshare companies, like any employer, can pay wages based on the number of hours worked.

On the other side are drivers like 62-year-old Ann Glatt, who joined the Gig Workers Rising movement after noticing her share of fares declining over time with Lyft. She says she’s lucky to make $700 a week and would like to see changes to the way the rideshare companies categorize their drivers.

“Teachers are in unions. We’re not able to unionize because we’re independent contractors,” Glatt said.

She added that the labels put on drivers can be misleading.

“Uber and Lyft are not transportation companies—they are platforms. So that makes us customers, and the passengers are the end user. But really it kinda just means Uber and Lyft are not responsible for basic labor standards for people,” she said.

After speaking to CALmatters, Glatt said she stopped driving Lyft because she wasn’t able to make ends meet.

Requests for exemptions have so far succeeded in some sectors. Gonzalez has agreed to leave doctors, insurance agents, real estate agents, hair stylists/barbers who hold a booth rental permit, dentists, architects, engineers and accountants out of the law.

But business interests are pressing for more. Barrera said CalChamber would like to carve out licensed occupations, from court reporters to family therapists. While the author is committed to sorting through more positions, Gonzalez said the exemptions will need to stop at some point.

“I have a driver’s license,” she said. “That doesn’t make me a business owner.”

CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Politics

The California Department of Motor Vehicles has given the public a series of piecemeal explanations as it acknowledged making more than 100,000 errors in recent months while registering Californians to vote.

Software problems, it said in May. Human errors from toggling between computer windows, it said in September. Data-entry mistakes that were corrected but never saved, it said in October.

What DMV officials didn’t acknowledge—and still haven’t—was what may be the underlying problem: The agency rolled out a massive new voter-registration effort with a piecemeal computer system. Instead of the properly integrated computer program that was needed, the agency launched in April with disparate computer systems that didn’t automatically link together, according to advocates who have been working closely with the DMV on the new “motor voter” system. That meant DMV workers had to manually link information from various systems during transactions between April and September, when an integrated system was put in place, said Kathay Feng, executive director of California Common Cause.

All the problems reported so far happened during that period.

“What we’re finding out is that they were really patching together an old system with several new systems,” Feng said. “We still don’t know if … they had planned all along to have an interim process between April and September, or if this is something they cobbled together because something wasn’t ready.”

The DMV declined to answer CALmatters’ questions about the computer systems, instead providing a statement saying the motor-voter program “has been implemented in phases, allowing DMV to roll out additional functionality.” The latest upgrade, the statement says, was on Sept. 26.

The botched rollout of the motor-voter system—which comes as the state and the country prepare for midterm elections—points to two long-standing problems in California. One is the state government’s pattern of failure on large information technology projects; the other is its history of flouting the federal voter-registration law.

Common Cause and other voter-rights advocacy groups sued the state in 2015, alleging it had failed to follow federal law requiring that states register people to vote and update their voting registrations when they get or renew a driver’s license or ID card. The Legislature then passed a law creating automatic voter registration at the DMV, and the advocacy groups have been working with the government to implement it.

The idea was that rather than duplicating information by filling out a voter-registration form and a driver’s license form, Californians who are legally eligible to vote would automatically be registered when completing the DMV’s computerized application for a driver’s license or ID card.

Since the program launched in April, about 1.4 million Californians have registered to vote or updated their voter registration through the motor-voter process—and the DMV has acknowledged three batches of mistakes:

• A software error affected 77,000 registrations, resulting, in some cases, in two registration forms indicating different party preferences being issued for one voter (reported in May).

• A window-toggling error affected 23,000 registrations, resulting in changes to voters’ party preference, vote-by-mail options and language choices (reported in September).

• A data-entry error resulted in 1,500 people being registered to vote even though they are not legally eligible, because they are not U.S. citizens, are younger than 18 or are on parole for a felony conviction (reported in October).

Though the problems are serious, none indicate intentional acts of fraud or hacking. Instead, they appear to be the result of human error and glitchy technology—which officials say are being fixed with software updates and employee training. The secretary of state said erroneous registrations have been canceled, and DMV leaders say they’ve put new procedures in place to prevent mistakes in the future.

“We continue to review the efficiency and accuracy of the program and will make additional upgrades as needed,” said the statement from DMV spokeswoman Jessica Gonzalez.

Secretary of State Alex Padilla has said the errors amount to a small fraction of the transactions processed by the DMV and maintains that the corrective steps he’s taking, including a third-party review of the motor-voter system, “are crucial to ensuring voter confidence in our democracy.” National experts have repeatedly found that voter fraud is isolated and rare. Still, with the state government run entirely by Democrats, the motor-voter problems have fueled Republican arguments that voting systems are plagued by fraud. In a new digital ad this month, Padilla’s GOP opponent, Mark Meuser, highlights cases of fraudulent voting and says he wants “to end California's rigged elections.”

The potential for politicizing the problem is why the state government needs to come up with a big picture fix, said Mike Madrid, a Republican political consultant who is an outspoken critic of President Donald Trump.

“There is a way to salvage this, but it requires not dismissing it as ‘no big deal,’” he said. “The president of the United States is questioning the integrity of our electoral system, and we have just legitimized that fear-mongering.”

Madrid wants to see a bipartisan commission formed to examine California’s voting system—not only the motor-voter problems, but also issues like the incident during the June primary when more than 118,000 names were erased from Los Angeles County voter rolls. An audit found that case was caused by a formatting mismatch between state and local computer systems that left blank spaces where dates of birth should have been, causing the computer to misclassify those voters as underaged.

The state’s Department of Finance will examine the motor-voter program as part of its audit of the DMV, which has been plagued by numerous problems this year, including massive wait times. But critics say that review is insufficient, because the Department of Finance, like the DMV itself, is part of the governor’s administration.

This summer, lawmakers rejected a Republican assemblyman’s request to have the state’s independent auditor investigate the DMV. Now the Democratic assemblywoman who wrote the law creating the new motor-voter system said she is going to ask for the audit when the Legislature reconvenes in January.

“We gave them plenty of time. We increased their budget twice in order to implement this. We allowed them to delay implementation because we wanted it done right,” said Assemblywoman Lorena Gonzalez Fletcher of San Diego. “When they told us they were ready, obviously they weren’t quite ready.”

CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Politics

Patricia Brooks said it was sexual harassment when she was taking a call as a 911 dispatcher in San Mateo and a colleague reached his hand inside her bra and fondled her breast.

The courts disagreed in 2000, saying it wasn’t sexual harassment because the single incident didn’t amount to a “severe or pervasive” problem—the legal standard necessary in a civil suit. That decision led to a long-standing legal interpretation that critics say has allowed harassers “one free grope.” But not anymore.

A bill Gov. Jerry Brown signed over the weekend rejects that interpretation, clarifying that a single incident of harassment can be enough to meet the legal standard. In other words, starting on Jan. 1, California law essentially says: “Actually, no free gropes.”

It’s one of the more tangible changes Californians can expect from a suite of bills Brown signed that were inspired by the #MeToo movement, which erupted last year after The New York Times and The New Yorker exposed abuse by film producer Harvey Weinstein in coverage that eventually grew into global demands for change. In California, lawmakers introduced more than two dozen bills to combat workplace misconduct and hold offenders accountable.

Brown finished acting on them on Sept. 30, the constitutional deadline for him to sign or veto bills for the year, and the final opportunity for him to make laws as he nears the end of his historic four terms as governor. Brown’s decisions on the #MeToo bills reveal his penchant for, as he once famously described it, paddling a little on the left and a little on the right.

He sided with victims’ advocates in some cases, signing bills that put California at the forefront of clamping down on harassment. In other cases, he sided with employers, vetoing bills they said were too onerous.

“While there was definitely some great progress on the bills he did sign, we have a long way to go on preventing sexual harassment, especially on the particular challenges that low-wage workers face,” said Jessica Stender, a lawyer with Equal Rights Advocates, a sponsor of some of the bills, including the one providing guidance on the legal standard for harassment suits.

On the flip side, business interests concerned about litigation abuse said the lower standard will amount to a huge expansion of liability.

“It is going to significantly increase litigation,” predicted Caitlin Colman, a lobbyist for the Civil Justice Association of California. “It does not apply to just sexual harassment; it applies to all harassment claims.”

Samantha Corbin, a lobbyist who wrote an open letter last year decrying a culture of harassment in California’s political scene that was signed by hundreds of women, said she was disappointed but not surprised by Brown’s vetoes. Her advocacy group, called We Said Enough, lobbied for 13 anti-harassment bills this year. The governor signed eight and vetoed five.

“This governor has always strived for balance, particularly when you’re looking at contentious issues in the national spotlight,” Corbin said. “It’s very rare for him to go all in on one side.”

Brown signed bills that will:

  • Prohibit employers from requiring employees sign non-disparagement agreements.
  • Prohibit secrecy clauses in settlements for sexual misconduct, unless the complainant wants one.
  • Require employers with five or more employees to provide sexual harassment prevention training to both supervisors and staff.
  • Require California-based companies to add more women to their boards.

He vetoed bills that sought to:

  • Require the state government to track harassment complaints and settlements in an annual public report.
  • Get rid of arbitration clauses in employment agreements, making it easier for workers to sue rather than resolve conflicts in private arbitration.
  • Require large businesses to keep harassment records for at least five years.
  • Extend the amount of time harassment victims have to file complaints, from one year to three years.

“Employees who have experienced harassment or discrimination in the workplace should have every opportunity to have their complaints investigated,” Brown wrote in his veto of Assembly Bill 1870 to extend the amount of time victims have to complain. “I believe, however, that the current filing deadline—which has been in place since 1963—not only encourages prompt resolution while memories and evidence are fresh, but also ensures that unwelcome behavior is promptly reported and halted.”

Some advocates complained the bills Brown signed will largely help women working in professional settings, while those he vetoed were aimed at helping low-wage workers such as janitors, maids, waitresses and sales clerks.

“It seems the #MeToo protections won’t extend to women who don’t have a certain standing, access to attorneys or a level of existing power,” Democratic Assemblywoman Lorena Gonzalez Fletcher wrote on Facebook the night Brown vetoed several of her bills, including the one to ban mandatory arbitration, a practice to which more than half the nation’s nonunion private-sector workers are subject.

“It’s pretty hard to celebrate the gains for women who have the same educational and access advantages as I do, while denying any gains for women like my mom and grandmother who never had those opportunities. You shouldn’t need a Twitter account or an attorney to not be abused in your workplace. And some day, you won’t need either ... we don’t give up that easy.”

Brown’s veto said her anti-arbitration bill violates federal law. The California Chamber of Commerce had deemed it a “job killer,” saying it could burden businesses with an avalanche of lawsuits. Arbitration agreements “expedite the resolution of claims in a less costly environment than sending all claims through an overburdened court system,” the Chamber said in a statement.

The fight is certain to continue next year, after Californians choose a new governor. Gonzalez Fletcher may have a critical ally in her corner: One person who lobbied for her anti-arbitration bill this year was feminist filmmaker Jennifer Siebel Newsom. She, of course, is married to Lt. Gov. Gavin Newsom, the front-runner in the race for governor.

CALmatters.org is a nonprofit, nonpartisan media venture explaining California’s policies and politics.

Published in Politics

Inside the California Assembly chamber on the night of June 1, the presiding officer urged lawmakers to recognize former members in their midst, “the honorable Henry Perea and Felipe Fuentes.”

In a familiar Capitol ritual, the former assemblymen waved from the balcony as applause rang out from their one-time colleagues.

But the two weren’t just retired lawmakers—they were now lobbyists being paid by oil companies to kill a bill that would soon meet its fate on the Assembly floor below.

That bill, by Democratic Assemblywoman Cristina Garcia, would have forced industry to reduce air pollution that comes from their plants. Garcia knew the lobbyists in the balcony were pals of many of her Assembly colleagues. She knew oil and other industries were working hard to defeat her. And she knew her bill was in danger.

A million people in her industrial Los Angeles neighborhood “have been treated like a wasteland,” Garcia said in frustration, wiping tears from her eyes. Then she cast a glance toward the balcony. “Clean air is a big deal for a lot of Californians. You have a choice: Do we all matter?”

Her bill fell six votes short, as moderate Democrats joined Republicans to quash it. The moment marked a win for oil—and revolving-door politics.

Today, Garcia cites the lobbyists’ special relationships with current legislators as among the factors to blame for her bill’s demise.

“When you have a former member on the floor at the same time they are working for or against the bill,” she said, “you open the opportunity to have access in a way lobbyists normally would not have.”

Sacramento is full of termed-out or retired lawmakers who make second careers as lobbyists, strolling through a “revolving door” between government and the private sector. Current law prohibits ex-legislators from directly lobbying their former colleagues for one year after they leave the Legislature, and a measure on Gov. Jerry Brown’s desk would slightly strengthen that by barring legislators who quit mid-term from lobbying during the remainder of that two-year-session, plus another year.

Still, the oil industry’s strategy this year was striking. After failing last year to prevent a new law requiring massive cuts to greenhouse gas emissions, oil came back this year lobbying hard. Democrats held a supermajority in the Legislature, but were divided over how to redesign the state’s landmark cap-and-trade program, which forces businesses to reduce emissions or pay for permits to pollute.

The oil industry’s goal: to shape the next phase of cap and trade through 2030. And it had hired four former lawmakers—all Democrats—to advocate on its behalf.

Each hailed from predominantly working-class, Latino districts and joined an influential “mod squad” of moderates during their legislative tenures, which covered various periods between 2002 and 2015. Two are from Kern County, the biggest oil producer in California. And three quit their elective office mid-term to work for industry.

All four declined interviews for this article, as did their employers. Three were registered lobbyists during the peak of cap and trade negotiations this year:

Henry Perea, the son of a Fresno City Council member and grandson of Mexican immigrants, made his mark in the Assembly as the former leader of its mod caucus before quitting mid-term, initially to work for a pharmaceutical trade association. Now he lobbies for the Western States Petroleum Association.

Felipe Fuentes, raised in the San Fernando Valley, worked as a legislator to secure tax credits to keep filmmakers in the state, then was named to the Los Angeles Times 2016 “naughty” list for bailing on his Los Angeles City Council seat to become a lobbyist. His firm’s clients include an oil production company.

Michael Rubio, who worked his way up in Kern County politics, abruptly quit the state Senate in 2013 to work for Chevron, saying he wanted to spend more time with his family.

• A fourth is not a registered lobbyist, but manages government affairs for a refinery company: Nicole Parra, whose father was a Kern County supervisor, won election to the Assembly at age 32 and also became a mod caucus leader, known for sometimes endorsing Republicans.

“The industry showed incredible smarts by going out and hiring these people. Nationally, the oil industry is very Republican,” said David Townsend, a Democratic political consultant who knows all four through his work running a fundraising committee that helps elect business-friendly Democrats.

“Their knowledge base is enormous. Their relationships are broad-based and deep. If I were in trouble, they are some of the ones I’d hire,” Townsend said.

Oil companies have a long history of fighting against the aggressive climate policies backed by many California Democrats. This year, though, instead of fighting against cap and trade, oil teamed with other business interests to lobby to make cap and trade more industry-friendly. In the final deal that lawmakers approved on a bipartisan vote in July, oil won a new law forbidding local air-quality districts from enacting emissions restrictions tighter than the state’s—as well as a potential perk worth hundreds of millions of dollars. Leading environmental groups supported the bill to extend cap and trade for another decade, but other environmentalists wound up opposing it for being too easy on polluters.

“This easy crossing from legislator to advocate for the industry has happened before, but it seems to have been happening recently in greater bulk. So that, to me, is kind of distressing,” said Kathryn Phillips, a lobbyist for the Sierra Club, which opposed the cap-and-trade plan. “These are people who have been friends with the people they are going to lobby.”

Many aspects of those relationships play out in ways the public never sees—through text messages and phone calls, or at private get-togethers. Weeks before lawmakers voted on the final cap-and-trade bills, Senate leader Kevin de León dined with Perea and Rubio at an intimate Sacramento restaurant known for $44 steaks.

De León, a Los Angeles Democrat who has carried many clean-energy bills, said former lawmakers didn’t get any special treatment from him.

“I sit down with everybody across the spectrum. That’s my job as the leader of the Senate,” he said. “I have to sit down with all perspectives, whether it’s oil, whether it’s clean energy, whether it is labor unions, whether it’s businesses.”

After Perea became a lobbyist, he met with Assembly Speaker Anthony Rendon to talk about cap and trade, and held additional meetings with the speaker’s staff, Rendon acknowledged. But the speaker rejected the idea that former lawmakers were especially influential in negotiating the next phase of California’s landmark climate policy.

“On an issue like cap and trade, where members arrive with a certain set of values and with information already, I am inclined to think that this is less impactful,” Rendon said.

On the other hand, former lawmakers—especially those who served most recently—can bring unique insider know-how to any lobbying effort. They understand caucus dynamics, know how to tailor persuasive messages to particular legislators, and enjoy unusual access to public officials.

Signs of that were on display throughout the year in the bustling Capitol. In April, Parra participated in a lunchtime discussion with legislative staffers about professional advancement for women of color, joined by a legislator, a lawmaker’s chief of staff and an aide to the governor who works on environmental issues. And in September, as lawmakers began a long night voting on dozens of bills, Perea strolled down a Capitol hallway packed with lobbyists and slipped into the back door of the Assembly chamber—right past a sign labeling the room restricted to “members and staff only.”

Well-connected environmental advocates also roam the halls. Last year, for example, the Assembly honored former legislator Christine Kehoe, a San Diego Democrat who now runs a group that works to expand use of electric vehicles.

When politicians leave office, they frequently take a job developing a lobbying strategy—but not directly lobbying. Rubio did that when he quit the Legislature in 2013 to work for Chevron, as did Perea when he resigned in 2015 to work for a pharmaceutical trade association. But as the cap-and-trade negotiations heated up this year, both officially registered as lobbyists—a sign that they anticipated having a lot more direct contact with lawmakers. Perea left the pharmaceutical group to join the Western States Petroleum Association as a registered lobbyist in May. The next month, Rubio registered as a lobbyist for Chevron. In September, he filed paperwork with the Secretary of State ending his registration as a lobbyist. (Both men scored spots this year on a popular list of the 100 most influential players around the Capitol.)

Fuentes was elected to the Los Angeles City Council after he was termed out of the Assembly in 2012. He quit the City Council last year to become a lobbyist with a firm called the Apex Group, whose many clients include Aera Energy—a firm that drills for oil in the San Joaquin Valley.

Parra, after being out of elected office for eight years, was hired by Tesoro (now Andeavor) in November as a manager of state government affairs.

No one has complained to California’s political watchdog that the former lawmakers broke any ethics rules in their advocacy work this year. The assemblyman carrying the bill to lengthen the time lawmakers are banned from lobbying said it’s not inspired by any of the Legislature’s recent departures.

Still, even if legal, the idea that personal relationships may influence statewide policy can be disconcerting, said Jessica Levinson, a professor at Loyola Law School and president of the Los Angeles Ethics Commission.

“If we think about what we’re worried about when it comes to any lobbyist, it’s the idea that our lawmakers are making decisions based on what hired guns are asking them to do as opposed to what’s good public policy,” Levinson said. “Lobbyists have an outsized influence on lawmakers, and that is exponentially increased when that lobbyist is a former lawmaker.”

Even if former lawmakers held office at different times than today’s legislators, they may be connected through other political circles. That was the case for Assemblywoman Lorena Gonzalez Fletcher, whose time in the lower house coincided with Perea but not the other three. She knew them, though, through California’s larger network of Latino Democrats.

Gonzalez Fletcher said she never felt pressured by the former legislators as the cap-and-trade negotiations advanced—perhaps because she declared her support for the bill early. Still, she saw them around the Capitol or ran into them while out for after-work drinks.

“There was a lot of checking in: ‘Where are people? Where do you think things will land?’ It felt more like information-gathering in my brief discussions with former members,” Gonzalez Fletcher said. “I didn’t feel a lot of hard lobbying going on.”

At a time when many lawmakers worry that Sacramento’s lobbying corps isn’t as diverse as either the state or the Legislature (Latinos make up 39 percent of Californians and 23 percent of state legislators), the oil industry has been represented by black and Latino lobbyists in the Capitol for several years. Its move to bring on the four Latino former lawmakers reflects a larger economic shift in California.

“It’s not because they are Latino,” said Mike Madrid, a Republican political consultant with expertise in Latino politics. “It’s because they represented districts that are poor and working-class. There just happens to be a very strong relationship between race and class in California.”

Madrid said working-class communities respond to industry arguments about the cost of environmental regulation—either as consumers who will see the cost of gas increase, or as workers who want to keep blue collar jobs in their regions. With Republicans divided over cap and trade, and lacking much clout in the Capitol, it was logical for oil to bring on some prominent Democrats.

“You’re starting to see a transformation of what has traditionally been a right-left, red-blue, Republican-Democrat divide,” he said. “There is a realignment occurring.”

Another indication emerged five days before lawmakers voted on the cap-and-trade extension. The California Business Roundtable, a group of 30 companies including Chevron and Valero, enlisted a new lobbyist: Richie Ross, former bare-knuckles chief of staff to one of the most powerful Democratic Assembly speakers in state history, Willie Brown.

Today, Ross is unusual among Sacramento lobbyists because he is also a political consultant whose clients include 10 Democratic legislators—giving him financial connections both to the groups that pay him to lobby, and the politicians who pay him for campaign advice.

He said he provided advice to the Roundtable and did not lobby his political clients in the Legislature: “They had me register (as a lobbyist) because at that point, everyone was uncertain as to whether they would need me to lobby.”

The Roundtable’s president, Rob Lapsley, is a longtime Republican. But he said business groups knew that when it came to cap and trade, they needed Democrats involved to get the plan they wanted from a Democratic-controlled Legislature.

“Richie is a smart, strategic advisor with long-term relationships. We found that of great value,” Lapsley said. “He goes back a long way. And he was very helpful in getting additional insights.”

CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Politics

After a man held a knife to her throat, forced her into her car and repeatedly raped her, Helena Lazaro underwent a painful and humiliating medical forensic examination.

The 17-year-old wanted her attacker caught.

She never imagined the evidence collected in what is known as a rape kit would sit untouched for years by the Los Angeles County Sheriff’s Department. By the time she finally discovered the identity of her attacker, prosecutors couldn’t charge him with the rape—because the statute of limitations had expired in California.

“I think about that 17-year-old girl, the 25-year-old girl, the 30-year-old woman—all the versions of myself who have suffered,” Lazaro says. “That suffering could have ended much sooner.”

Victims’ rights groups estimate that hundreds of thousands of rape kits remain untested at police departments and crime-lab storage facilities nationwide. Thus far, a partial inventory of California by the End the Backlog Initiative has identified some 9,000 untested kits. But the precise number remains a mystery, because most states, including California, don’t inventory rape kits, and rape survivors sometimes struggle to get information about their own cases.

Law enforcement might opt not to submit kits for DNA and other analysis for any number of reasons—the case may be solved or cleared without the need for test results, or officers may regard it as a low priority. But another reason so many kits gather dust is financial: Processing costs an estimated $500 to $1,500 per kit, sometimes more.

Legislative efforts to count and clear the rape-kit backlog, to track the kits and to mandate all new kits be tested have failed over the years in California, with the powerful law-enforcement lobby citing the burden on labor and local police budgets. This year appears to be no different: Some legislation that would reform rape kit collection has been watered down. Other bills await approval from lawmakers charged with weeding through bills that carry a price tag, who often reject popular measures because of their cost.

The responsibility for submitting rape kits for testing largely falls to local police departments and county sheriff’s offices. But a growing number of states have gotten involved—reacting to a public outcry and to evidence that testing rape kits puts serial rapists behind bars. In recent years, California has “encouraged” law enforcement to submit kits within a certain time frame and legalized a victims’ bill of rights. But unlike many other states, California has stopped short of mandating testing or even paying to calculate the depth of the backlog.

One legislator has even resorted to a novel approach to crime-solving: A bill would ask California taxpayers to donate directly to the rape-kit backlog fund when filing their state income tax returns.

“It takes significant resources and political will, getting leaders to engage in this problem and say it’s a priority and (that they) want to fix it,” said Ilse Knecht, director of policy and advocacy at the Joyful Heart Foundation, a national nonprofit that works on sexual assault.

Tracking these kits, Knecht argues, is one way the public can hold law enforcement accountable for failures to prioritize sexual assaults as violent crimes, blaming the victim or only testing rape kits if a stranger committed the assault. Those cultural, subjective circumstances are the reason she and other advocates believe every rape kit ought to be tested—to end the discretion, and some say discrimination, involved in rape-kit testing.

“I think the injustice of this situation is obvious but bears some repeating,” said Assemblyman David Chiu during testimony before a Senate committee in June. “When kits are untested, survivors do not get justice.”

Chiu, D-San Francisco, authored AB 41, which would require local law-enforcement agencies to log all future rape kits into a California Department of Justice database—although the bill does not require the kits to be tested. It’s a small step toward the eventual goal of testing all rape kits, but even so, simply tracking new kits has garnered opposition from the California State Sheriffs’ Association, which argues the reporting requirement would divert limited resources from critical services.

“If agencies report this information, there will be a database about who has untested kits and why they are untested,” said Cory Salzillo, legislative director of the sheriffs’ association. “That doesn’t necessarily translate into convictions.”

Salzillo also challenges the premise that every rape kit should be tested, citing cases in which a person who committed a rape admitted to it; both the victim and the perpetrator agree a sexual encounter took place; or if a victim has recanted. However, it’s hard to know what percentage of untested kits stem from solved cases in California, because law enforcement isn’t required to report the information.

Lazaro still doesn’t know why the Los Angeles County Sheriff’s Department didn’t submit her test for analysis or why her case remained unsolved for so long. She spent her final year of high school terrified of her unknown attacker, who had threatened to kill her and her family if she ever reported the attack. When authorities did send Lazaro’s evidence kit for testing in 2003—seven years later—they didn’t tell her they had found a match. Her case never moved forward.

She didn’t learn the name of that match until 2009, after the sheriff’s department responded to an inquiry from a local rape-crisis agency. Lazaro said she was told that the results had never made it from the lab to the sheriff’s department, and received an apology. But by then, California’s 10-year statute of limitations on rape had expired. (Last year, Gov. Jerry Brown signed legislation that removes the statute of limitations on new sex crimes.)

Capt. Carlos Marquez from the Los Angeles County Sheriff's Department declined to comment on the case, saying he was about to meet with Lazaro.

At first, Lazaro was relieved when she finally learned that the man authorities had identified through testing as her rapist—a long-haul truck driver from Ohio—was in prison for sexually assaulting his wife: That meant Lazaro was safe. She believed her case had just slipped through the cracks. But then she learned about the hundreds of thousands of women nationwide whose rape kits have never been tested.

“I hate that I have to argue that it should be important enough to say, ‘We need to prevent women from being raped,’” Lazaro said. “We track information about so many other crimes. Why is this an exception?”

Lawmakers on the Senate Appropriations Committee have put Chiu’s bill on the suspense file, meaning it has a cost to the state and will be heard later this summer. Similar bills have died twice before in appropriations committees.

A recent Senate analysis concluded that Chiu’s rape-kit reporting bill presents a “potentially significant workload cost of more than $100,000 a year to local law-enforcement agencies statewide,” although that cost would likely be reimbursed by the state. Related legislation that would ban the destruction of a rape kit in an unsolved case for 20 years could cost the state $3 million for a new storage facility, along with $150,000 in ongoing costs. That bill, AB 1312 by Democratic Assemblywoman Lorena Gonzalez Fletcher of San Diego, initially contained a provision that would have mandated the submission and testing of all newly collected rape kits. But that was it stripped from the bill because of its cost.

“Funding shouldn’t even be a question,” said Harriet Salarno, chair of Crime Victims United Charitable Foundation, whose daughter was murdered; she has been working with victims for the last 37 years. “Public safety is a constitutional right. Public safety is a priority. They are using funding as an excuse.”

Critics say the cost of testing a rape kit is far outweighed by the cost of crimes prevented. In 2016, the Begun Center for Violence Prevention Research and Education at Case Western Reserve University in Ohio released a study that showed Cuyahoga County, Ohio, had saved $48.2 million by averting future sexual assaults after testing its 4,347 unsubmitted rape kits. A report by the U.S. Justice Department noted that Detroit alone had identified more than 400 serial rapists through the testing of backlogged kits.

A growing number of states have taken steps to address the backlog. Arkansas, Iowa, Louisiana and Minnesota now require law enforcement to inventory untested rape kits. Connecticut, Illinois, Ohio and Michigan require all rape kits be tested within certain timeframes. California joins Kentucky, Oregon, Pennsylvania and Utah with laws that give survivors the right to know the status of their rape kit, according to the Joyful Heart Foundation, which runs the End the Backlog campaign.

Congress has also stepped in. Since 2015, federal lawmakers have approved $131 million for the Sexual Assault Kit Initiative, and federal agencies have awarded millions in other grant dollars to help law enforcement and crime labs with their backlogs. The California Department of Justice, Orange County, the Riverside Police Department, the Alameda County District Attorney’s Office and the Contra Costa County District Attorney’s Office have all benefited from funding, according to the Department of Justice.

Still, lawmakers have been reluctant to mandate that law enforcement test all future rape kits, eliminate the backlog of untested rape kits or even do a statewide count to determine the backlog that exists.

Democratic Assemblyman Evan Low, from the Silicon Valley city of Campbell, said that’s why he put forward AB 280—to find an alternative way to raise funds to eliminate the rape kit backlog. His bill would add a check-off box to personal income-tax forms that allows taxpayers to donate directly to the Rape Kit Backlog Voluntary Tax Contribution Fund. If approved by lawmakers and signed into law, California taxpayers would have to donate at least $250,000 a year for the box to stay on the form.

The idea, however, hasn’t been well-received among advocates for sexual-assault victims, who commend Low’s intent, but argue the funding should come from law-enforcement budgets.

“This is the criminal-justice system. Laws have been broken, and you can’t prosecute without criminal evidence,” says Patti Giggans, executive director of Peace Over Violence, who worked with Los Angeles area public officials after Human Rights Watch in 2009 revealed more than 12,500 untested rape kits in the county.

“I don’t know of any other crime where you go to the public,” she added.

Low is the first to admit that his bill is “not the ideal nor perfect solution” to address the backlog. “I am in agreement that we, as a state and public jurisdictions, should adequately fund this for justice to be obtained,” Low says. “But, that’s not the reality.”

Lazaro, whose attacker was never charged with her rape, wants lawmakers to think about survivors like herself when these bills come before them. She is still traumatized by what happened to her at the car wash just four blocks from her home in Downey. And she wonders how her life might have been different had law enforcement immediately submitted her rape kit for testing.

“It changed my life,” Lazaro said. “And I’m just now starting to come to terms with how much of my life was stolen.”

Samantha Young is a contributor to CALmatters.org, a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Politics