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Summer Recess

E-233 - Sunday, July 14, 2019

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  • CA49 (South Orange/North San Diego coast): nurse/researcher Femala Ramos (R) - leans D - challenge to Mike Levin (D) 
  • CA49 (South Orange/North San Diego coast): removed businesswoman Mara Fortin (R)

SacTown Talks by The Nooner


  • SB 27 - another precedent of unconstitutionality from a reader
  • Kern County oil spill and ground water
  • AB 5: Dynamex
  • Cakeday
  • Dept of Corrections

Joyeuse bastille! 🇫🇷🇫🇷🇫🇷

It's a busy day aside from writing, with farmers market, menudo, and a Shakespeare play over at Sac City College. I'm back from farmers market with a half hour to write and now I know that it'll be a crawfish boil for dinner. For those that don't know, there is a vendor on the southwest end of the market under the W-X freeway that is there with live crayfish for a few weekends each year.

At $3.50/lb and the seafood boil mixes he sells, fresh corn and potatoes from Riverdog, okra, lemons, and garlic from other farms along with lemongrass from the 5th/Broadway Asian farmers market two blocks away that also runs each Sunday at the same time, I'm set with a great dinner and a great time with this recipe!

It it sounds like I am hungry, guilty. Fortunately, 11:30 marks the time when I hand these words to the hamsters and go to get menudo and a mangonada down the street.

After reading this article by the NYT's Farhad Manjoo, I'm going to start using "they" as a gender-neutral singular pronoun. Many languages use a gender-neutral pronoun. It simply makes for better writing and speaking.

Thank you for lots of great feedback to yesterday's Nooner discussion on the challenges to incumbents in CA15 and CA16.

A smart Noonerific reader had a good in follow-up of Friday's write-up on the constitutional issues of SB 27 (McGuire and Wiener), which requires presidential and gubernatorial primary candidates to disclose five years of tax returns. I kept my legal analysis to First Amendment freedom of association precedent in CDP v. Jones 530 U.S. 567 (2000), the reader is correct in also citing US Term Limits, Inc. v. Thornton 514 U.S. 779 (1995), the 1995 Supreme Court case. That case held that states could not place additional limitations on qualifications to eligibility to serve in Congress beyond those enumerated in the Constitution.

Another reader took umbrage with my comment yesterday that:

"I'm guessing that the "no beneficial use" of the groundwater just might mean that drilling in the McKittrick Oil Field, California's 19th largest, has been taking place since 1896 with major drilling beginning in the 1960s with California's growth, particularly in the number automobiles."

The reader said that the water under the field has a mineral concetration from geological forces over millennia. This is consistent with groundwater in many areas in the San Joaquin Valley, particularly in areas where water has been overly drawn for a variety of purposes, which has led to a concentration of salts/nitrates, often from fertilizers and dairy operations. I don't have time on a busy Sunday morning to learn the water table history near McKittrick, but PPIC has done great work discussing these issues in the valley.

We'll keep it short today, AB 5 on independent contractors and more after the jump!


AB 5 (Gonzalez): Worker status: employees and independent contractors. I missed Joel Fox's article on Friday in which he writes about the desire for exemptions for specified industries from the Dynamex "ABC" test could be the bill's downfall. It's Sunday, so I'm not going to rehash this issue completely and refer you to Thursday and several other days I have written in detail on the issue. Fox is right on this, and Gibran and I talked about this on the pod recorded Friday. That pod will likely be released today and I'll of course send out a link.

Fox is on to something. In particular, in Wednesday's Senate Labor, Employment and Retirement Committee hearing, both chair Jerry Hill and Senator Hannah-Beth Jackson sympathized with industries that made a good case for exemption. The problem, as I discussed with Gibran on the pod, is crafting clear criteria for such exemptions.

As you know, I frequently do legislative research by talking to people who deal with state laws every day in my normal course of life/business. This is a great supplement from talking points arguments advanced by advocates for distinct positions. For example, I talk to small independent stores about AB 1639, the tobacco/e-cigarette bill, including those that sell vaping products who will be particularly hit and those who don't but would be affected by the new age verification requirements. Some find it completely reasonable and others don't, depending on economic impact and their own personal views.

On AB 5, I talked to my barber who I have plugged here about the barbering and cosmetology exemptions, which come with very clear criteria. Jason Iverson seemed to think that the criteria were reasonable based on my oral description while in his chair. He has been hesitant to recruit barbers to rent his extra chairs on 10th Street until the law is clear, which also includes whether or not the Dynamex "ABC" test will apply retroactively. I talked about the latter specifically on Thursday.

Of course, the criteria changed on July 11, with the new language available to the public on July 12. The next trim of my locks is scheduled around August 1, so I'll have time to revisit the new language with Jason before the Legislature returns August 12.

In Tuesday's Senate Labor hearing, Senator Hill seemed to be persuaded that something needs to be done for the owner-operator truckers and Senator Jackson brought up freelance seafood harvesters. Both senators have strong labor pedigrees. Let's look at ABC once again.

To be an independent contractor, the employer must prove:

(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

An owner-operator trucker usually owns the cab that they drive. When they receive a dispatch call from a trucking company, they are told the pick-up, destination, and expected date of delivery. They can decide whether or not to take the gig, similar to the decision of whether or not to "turn the app on" for a "gig" driver (e.g. Uber, Lyft, Postmates). Dispatchers decide who to put work out to and those that are responsive (and perform well) get more work.

The "gig" companies often provide incentives to get more drivers on the road if demand exceeds driver supply. However, if the trucker doesn't take the dispatched call, they might be removed from the modern-day Rolodex of that company.

Does that put the the owner/operator trucker in "control and direction of the hiring entity in connection with the performance of the work"? As I cited on Thursday, Sikh drivers have become a major force in independent trucking as characterized as the Punjabi American highway in the.  What if the dispatch request took place over a Gurpurb, a Sikh holiday, and the driver really wants to observe it with family? 

In Senator Jackson's expressed concern about seafood harvesters, let's assume Fred leases a commercial fishing boat, and is a member of the Commercial Fishermen of Santa Barbara County. He's built a relationship with one of the best seafood restaurants in the county and the chef/owner Mr. Slate even puts "Fred's Catch" under dishes for which my fish are used. It was a proud accomplishment.

Let's say that Mr. Slate calls Fred after dinner service one night and says "Sorry for late call but we just finished dinner service. I just heard from two very important patrons that there is are great schools of squid just off our coast. They want me to have a local squid-ink tagliatelle with calamari and a white-wine tomato sauce on tomorrow night's menu as they are scheduled to have a birthday dinner for a friend who loves the dish from a common visit in Italy. They'll have a group of eight. I need you to go out overnight now and bring me a haul of at least 25 pounds by 10am for lunch and dinner service. Will you do it for me? You know I rely on your great work and I'll pay you double the market rate if you do it. I know you have a knack for finding the best catch and you know my customers are happy to pay accordingly."

In both the owner-operator trucker and fisherman Fred case, one could argue that the requirement of "A" in the ABC test is not being met. However, the only difference between the cases and the "gig economy" are that the hiring entity has an individual relationship with the person performing the work, whereas to the "gig" economy works with masses and uses apps to stimulate supply of a mass of workers.

How do you differentiate between the stimulation of the supply of drivers by the "gig" companies and that of the prioritization of dispatch in trucking or the offer of double the market price for squid?

I can see a difference in writing it out in paragraphs in the Nooner space, but I have no clue how to do it in sensible legislative language. And, while I chose trucking and fishing, Joel's point in his article is that there are many occupations that fall into this conundrum. Discussions are continuing and solutions sought during the summer recess. I do think something will pass this year, although it was clear on Tuesday that further amendments are likely going to be needed for even some labor champions to be ready to support the bill if it makes it to the Senate Floor.

As chair, Senator Hill was the last speaker before Lorena's close on Tuesday. He listed seven points he wanted to see addressed that are largely along issues I have discussed, but finding compromise language on this bill that does not simply shift opposition from one group to another is extraordinarily challenging.

Meanwhile, that squid-ink tagliatelle discussion made me hungry. Can't wait for that crawfish boil.

CAKEDAY and CORRECTIONS after the jump...


Probolsky Research

Indeed, lots of food talk again to menudo!

#CAKEDAY: Light the candles for Tina Andolina, Jack Gribbon, Roxy Lara, Shawn Lewis, and Caity Maple!

DEPT OF CORRECTIONS: In my write-up on CA15 and CA16 yesterday, I errantly said that Rashida Tlaib succeeded short-term congresswoman Brenda Jones in MI-13, who had been elected in a special following John Conyers's death. An astute reader reminded me that the death near that time was John Dingel in the adjacent district. His wife Debbie was elected to his seat. Conyers resigned in 2017 under sexual misconduct allegations.


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