Sunday, November 27, 2022

Job Killer Final: Governor Vetoes 1, Signs the Other

Days after vetoing a California Chamber of Commerce job killer bill on forced unionization of agricultural workers, Governor Gavin Newsom this week signed a job killer bill increasing the burden on nonunionized employers in the garment manufacturing industry.

Vetoed on September 22 was AB 616 (Stone; D-Scotts Valley), which would have eliminated agricultural employees’ democratic right to cast an independent vote in a secret ballot election on whether to unionize.

Signed on September 28 was SB 62 (Durazo; D-Los Angeles), which significantly increases the burden on nonunionized employers in the garment manufacturing industry in California, by eliminating piece rate as a method of payment even though it can benefit the employee, expanding joint and several liability for any wage violations to the entire supply chain, and shifting the evidentiary standards in a Labor Commissioner hearing to limit the ability for an employer to defend against an alleged wage violation.

Vetoed

AB 616 would have limited an employee’s ability to independently and privately vote for unionization in the workplace, by essentially eliminating a secret ballot election and replacing it with the submission of representation cards signed by over 50% of the employees, which would leave employees susceptible to coercion and manipulation by labor organizations.

Also, the bill unfairly limited an employer’s ability to challenge any order by the Agricultural Labor Relations Board (ALRB) by forcing employers to post an unreasonable bond, and then limited an employee’s ability to decertify a union, by forcing them to go through the ballot election process instead of submission of representation cards. The bill also included an unnecessary presumption of retaliation that was effectively unlimited in scope because it would apply for the duration of an election campaign, which could last for a year or more.

In his veto message, Governor Newsom pointed out that AB 616 contained “various inconsistencies and procedural issues related to the collection and review of ballot cards.” He also cautioned that significant changes to the state’s agricultural labor laws must be carefully crafted.

The state Agricultural Labor Relations Act (ALRA) protects the rights and interests of employees and employers, as well as unions.

Modeled on the National Labor Relations Act, the ALRA affords agricultural employees the opportunity to select — or to refrain from selecting — a particular union as their collective bargaining representative through a formal and secure secret ballot election.

Each employee votes in a private booth, without any pressure or coercion from the employer, union or other employees.

AB 616, however, would have stripped employees of this fundamentally democratic right, instead allowing unions to bypass secret ballot elections under an alternative “ballot card” procedure.

Under AB 616, a union would have been installed as a bargaining unit’s representative merely by submitting a petition to the ALRB along with representation cards signed by a majority of affected employees and designating that union for that purpose.

Unlike the current process, which guarantees that employees ultimately express their true sentiments about unionization in the tightly controlled setting of a supervised secret ballot election, the AB 616 procedure provided no safeguards to ensure the representation cards really indicate the employees’ free, uncoerced and current choice.

Nearly identical legislation was vetoed in 2011 by Governor Edmund G. Brown Jr., who signed the ALRA into law in 1975.

Signed

Opponents of SB 62, including the CalChamber, have argued that the additional requirements in SB 62 will encourage companies to contract with manufacturers outside of California, thereby limiting the demand and workforce of garment manufacturers in California.

Proponents of SB 62 claim joint liability is necessary to hold liable brands who intentionally pay low contracts that do not cover workers’ wages. That conduct is already illegal under Labor Code Section 2810, which imposes liability on any entity that enters into a contract for the manufacturing of garments where it knows or should know that the price is insufficient to cover workers’ wages.

Nothing in SB 62 will address the problem of underground bad actors in the garment industry evading the law. Instead, SB 62 eliminates piece rate work and allows those bad actors to continue operating as usual while passing the cost and liability to companies that have no control over the workers.

Staff Contact: Ashley Hoffman

Ashley Hoffman
Ashley Hoffman
Ashley Hoffman joined the CalChamber in August 2020 as a policy advocate specializing in labor and employment and workers’ compensation issues. Before joining the CalChamber, she was an associate attorney in the Sacramento office of Jackson Lewis P.C., representing employers in civil litigation and administrative matters, as well as advising employers on best practices, including compliance with labor laws. She previously worked as a litigation associate and a summer associate at Gibson, Dunn & Crutcher, LLP, Los Angeles. She also was a law clerk at the U.S. District Court for the Western District of Tennessee in Memphis and a judicial extern for the Ninth Circuit U.S. Court of Appeals in Pasadena. Hoffman holds a B.A. with high honors in political science from the University of California, Santa Barbara, and earned her J.D. from the UCLA School of Law, where she was a Michael T. Masin scholar, an editor at the UCLA Law Review, and staff member for the Women’s Law Journal.

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