If you don't see images in this message, click "Display Images" or the equivalent.
E-174 - Wednesday, September 11, 2019
Advertise in The Nooner to reach over 8,000 readers
RECENT AURAL PLEASURE:
TRUMP TAX RETURNS: Lawsuit information page for SB 27 (McGuire and Wiener): Primary elections: ballot access: tax returns.
IN TODAY'S NOONER:
As likely for the rest of our lives, I can't not think about where I was on that morning 18 years ago at a time not much dissimilar than this in a setting not much different. I was at my place in south Davis, sitting at my computer, listening to music on Napster, and the news came in. My roommates, including my now ex-wife (an outstanding woman many of you know) and me, watched the news in horror.
In gallows humor out of a need to deal as the news came in, I blasted REM's "It's the End of the World." As inappropriate as that sounds, it was my way of coping, but I sure wasn't feeling "fine" as the song goes.
Would the Legislature meet? I was director of fiscal policy for the Community College League of California at the time and was working on bills. I can vividly recall driving across the Yolo Causeway and down Capitol on that fateful Tuesday morning. I went to my office in the Senator Hotel and it didn't take long for most folks in the Capitol community to decide we really didn't want to be near the building we love so much.
We were broken, even though the tragedies in Manhattan, at the Pentagon, and Shanksville, Pennsylvania were thousands of miles away. It was as if our neighborhoods were attacked.
As part of my job at the League, I worked with the Wall Street bankers and analysts who provided tax and revenue anticipation notes (TRANs) for our colleges. As S&P developed the credit outlooks for the college districts, it required my "expertise" in making professional guesstimates of things such as mid-year cuts that could impede the ability of districts to repay the one-year notes that even out their revenues in the year since property taxes (then a bigger part of college budgets) mostly came in December and April.
I knew that people I had worked with were in and around the World Trade Center. In the end, I didn't lose anyone I knew on that dark day, yet know folks who did, including folks who were "lucky" to be on the road when the horror struck.
Thinking back to blasting REM, indeed it was the end of the world as we knew it, but I sure as hell didn't feel fine. Yesterday in the Capitol, I met young staffers who weren't even in school on 9/11/2001. They don't remember going in and out of the Capitol without security screening 24/7. After the late evening, to return for budget committee or a late night meeting (we'll define that liberally), we could push a button at the door to the north entrance and a CHP officer would ask who was there through an intercom. Yes, kiddos, the Capitol was akin to visiting aunt Flora's apartment.
Of course, that "world as we knew it" seems unfathomable now. I would not have been in the Capitol the last couple of days or last week to provide inside coverage from you in this space, on Twitter, on Facebook Live (archived videos 1, 2, 3), etc. amidst hate-filled protests. People have messaged me as I shot video to be careful walking through the crowds. I should be all vaxxed, but I am as careful as possible. Even though vaccines are for viruses and Purell is for bacteria, let's just say I have used every Purell station in the Capitol this week.
Funny aside about the Facebook live videos: lots of the viewers of the streams were staffers watching from their officers and members on the legislative floors who could hear the rancor outside the chamber. The Senate Gallery was closed.
On the protests, it is true that the sergeants for the State Senate and Assembly (plain closed certificated peace officers with weapons) and the California Highway Patrol have given immense latitude to the protestors. This was a conscious decision from the top. As someone who ran student rallies as both a student and later, let me tell you that there's no way that community college students could pound on the walls in our beautiful historic building, make the noise disrupting session, tape the Governor's Office door shut, and many other things we've seen. And, people are likely correct when they say that if this was Black Lives Matter or farmworkers, that same latitude also probably would not have been given.
Then again, future protests in the Capitol of all stripes may also be different. Dragging people out in cuffs just breeds more protests as video is shown on the evening news. The bills are done for this year. We have the referendum process for aggrieved Californians who want to block a new law's passage before it goes into effect, which the money bail industry has done with SB 10 from last year (bail reform). As I'll write below, it's very possible that it might be used by those aggrieved by AB 5 (Gonzalez). Of course, the DC-based strategists for those opposed to mandatory vaccinations and the changes this year know that unpopularity of the position among the voting public and that they neither have the money or support to win that battle, so they'll likely continue pounding on the Capitol's walls and harassing Bacteria Bear for many more days with their chants of "We Won't Go Away."
As of Friday, the Legislature will go away and they'll be chanting to nobody. Thus, let them protest even beyond the normal tolerance level of our great Capitol security. Seven people were arrested on Monday including breastfeeding moms. As they did yesterday, orders to disperse from blocking the driveway to the members' garage were ignored (some members parked at the Hyatt). They were told that they would not be cited and released, but instead put in handcuffs and booked into county jail. By 11pm that night, protestors had arranged bail and the detainees were released. They chose to have two breastfeeding moms as the "designated arrestees" to help their cause. It didn't.
On behalf of everybody who works in and around the Capitol, a Noonerific "thank you" to the California Highway Patrol officers, legislative sergeants, and Capitol security screeners who kept us safe over the last several months and particularly the last week. We may have complained when modern-day security was implemented and access was more tightly controlled. We get frustrated when the metal detectors beep after emptying our pockets only to realize that the reason it's beeping is because of the "BURTON" button we are donning.
In particular, the greatest Noonerific gratitude to Jodie O. Barnett III, the Chief Sergeant-of-Arms of the State Senate, who felt the biggest brunt of the last week of protests. Jodie, who previously retired but couldn't resist returning, is retiring "for good" December 30.
There are very few faces around that were here when I arrived 25 years ago, and two great ones are retiring--Assembly Chief Clerk E. Dotson Wilson and Jodie O. Barnett III. While legislators come and go these days, these two guys have kept the Capitol running and those of us who work in and around it safe.
Yeah, that happened when I was behind former Senate President Pro Tem John Burton in line on Monday and had pointed out the button from one of his brother Phil's campaigns. Burton told security to pass me around, but I had a bag. I walked through and of course to take the BURTON pin off my The West Wing shirt. Well played, Scott. Well played. No exaggeration of what happened at the north entrance on Monday.
We give thanks to those who keep us safe in and around the Capitol.
We remember those we lost on 9/11, 9/11-related illnesses since, and our heroes who answered the call to those who sought to destroy our way of life on that beautiful Tuesday morning eighteen years ago.
Namo Amida Butsu. Namo Amida Butsu. Namo Amida Butsu.
business after the jump...
Readers have asked about where my office is. I took a photo this morning of the palatial Global Nooner Headquarters. Of course, coffee is here but out of the picture. For those who visited my office when I was at the Community College League, yes, my desk is as messy even when it's in my apartment.
For those who read online and are not subscribed via email, I sent out this update mid-Senate session yesterday evening, so it's important in context of what I'll write and I won't repeat all of that, but rather build on it.
DYNA-DYNA-DYNAMEX! If you weren't following the Senate Floor session when AB 5 (Gonzalez) was brought up last night and were having a hard time following things, let me tell you that you are not the only one trying to figure things out. I awoke to email and texts from members and top lobbyists trying to figure out.
AB 5 was passed by the State Senate on a strict party-line vote 29-11 last night, as amended on September 6. However, there is now a "trailer bill." AB 170. For the homegamers, you may remember our discussions about SB 714, which is the trailer to SB 276, the main bill on vaccination medical exemptions that contained amendments to address some of Governor Gavin Newsom's concerns. Like SB 714 was contingent on the enactment of SB 276 (vaccinations), AB 170 is contingent on the passage of AB 5.
The messages I was getting overnight was about folks who had been seeking additional exemptions to AB 5 from various industries. Senate Republicans offered twelve sets of amendments to add additional exemptions with elaborate presentations to demonstrate the "picking and choosing" of specific job classifications, all of which were laid on the "very crowded" table and then "a second table" by Senate Majority Leader Robert Hertzberg (D-Van Nuys). There were points of levity, such as Hertzberg's motions and the discussion of rabbis who provide services such as briss that were argued should remain independent contractors.
No changes to AB 5 have been made since the September 6 amendments. AB 170 only pertains to newspaper distributors until January 1, 2021 until extended by the Legislature. This sought to address the editorials by the state's leading newspapers that argued that, by failing to address newspaper delivery for those of you lucky enough to to have a "paperperson" find your porch, AB 5 would put more papers out of business.
Candidly, I think the maneuver will just lead to more editorials and opinion pieces against the way Dynamex has been addressed in a piecemeal and haphazard manner.
That said, there's a reason why more weren't added. Nobody believes the discussion of post-Dynamex employment classification rules is over. As we've talked about here, Uber, Lyft, and DoorDash have deposited $30 million each to qualify ballot measure(s) for nex November ballot.
Here's what I think will play out but nobody is talking.
First, remember that Dynamex Operations West, Inc. v. Superior Court only applies to the certified class of employees in that specific case, who worked for the old economy delivery company that is now owned by the Canadian TFI International. Everybody acknowledges that the facts from the case demonstrated that Dynamex improperly classified delivery drivers as independent contractors. From my perspective, there is a reasonable debate whether the Supreme Court of California went too far in its unanimous ruling that held that courts and wage orders had gone beyond the plain reading of the relevant current Labor Code provisions defining who is an employee.
The suggestion that the Supreme Court of California is a left-leaning tool of labor unions in last night's debate is absolute bunk. The seven members are Chief Justice Tani Cantil-Sakauye (Schwarzenegger, Tani is independent after Kavanaugh hearings, and go King Hall, UCD and UCD Law alum--I may be biased) and Associate Justices Ming Chen (Wilson), Carol Corrigan (Schwarzenegger), Goodwin Liu (Brown), Mariano-Florentino Cuéllar (Brown), Leondra Kruger, and Joshua Groban (Brown).
Is it more liberal than ten years ago? Sure. Gray Davis didn't have any openings to appoint during his five years in the Governor's corner office. But, Ming Chen signed off on that decision and you definitely wouldn't say he is a labor liberal.
Similarly, the assertion last night that the Supreme Court of California had thorough arguments is also bunk. That's not how SCOCAL (or SCOTUS) works. They largely rely on the record. I've written about it before but don't have time this morning and the hamsters can't find it this morning. The early debate at the Superior Court of Los Angeles County was whether the class of plaintiffs who performed work for Dynamex was certifiable. The superior court found they were not, the Second Court of Appeal reversed and remanded. The superior court then certified the class and made a ruling that it was certifiable and Dynamex appealed again. The court of appeal upheld the superior court's class certification and Dynamex appealed to the California Supreme Court.
That's why the case is titled Dynamex Operations West, Inc. v. Superior Court. The issue was class certification and indeed the definition of whether the plaintiff and identified class was certifiable relied heaviiy on whether the individual class members were similarly situated individuals required analysis of whether or not they were employees under case law and the Labor Code.
I need a breather. More on Dynamex, AB 5 and AB 170 after we pay some bills...
My reading between the lines in this was the California Supreme Court was telling the Legislature that it needed to clean up the Labor Code. Rather than re-writing the Labor Code, though, the Legislature's majority accepted the court's decision in Dynamex and application of the ABC test for when one performing work must be considered an employee and mostly proceeded with a series of exemptions for specific types of work in AB 5 and AB 170.
I believe that a referendum will immediately be filed on behalf of DoorDash, Lyft, Uber, or perhaps a more general name such as one of the major business organizations under Article II, Section 9 of the California Constitution. It can't be filed for title and summary by the Attorney General's office until the Governor signs the bill and it is issued a chapter number, and then the AG's office has 10 days to such title and summary. (Elections Code § 9006(a)) The proponents of the referendum will then have 90 days from the date that the Governor signed the bill (chaptering date) to collect 623,212 signatures.
Well, that 90 days depends on when the Governor signs the bill. Because it's the first year of the biennial legislative session, the Governor has until October 13 to act on bills. Under Article II, Section 9, the petition with sufficient valid signatures may not be presented to the Secretary of State on or after January 1. So, the 90 days could be shortened by 13 days. That's moot, as there is plenty of money already in the gig company bank accounts to get signatures quickly--whatever they cost.
Upon the submission of that number of signatures and certification of the signatures by the Secretary of State, the new statute is "stayed" until the people have the opportunity to vote on it. Like with the already qualified referendum on SB 10 (bail), a "yes" vote in November 2020 upholds the law and a "no" vote throws out the law adopted by the Legislature and signed by the Governor.
Because AB 170 amends the new Labor Code §1750.3 added by AB 5, I believe a single referendum would suffice on the four code sections added/amended by AB 5, although I don't know if there has ever been a referendum of a bill that has a trailer bill we have had such a situation. If only one of the Nooner hamsters was a law student to hit the stacks.
Okay, so referendum qualification freezes things as they are, but that's not good for the opponents of AB 5, because that can't change the California Supreme Court's decision in Dynamex. As I mentioned, that decision only applies to the class of employees certified. So, plaintiffs lawyers are already running around to find more aggrieved folks who are currently classified as independent contractors that arguably are employees under Dynamex. Businesses, some clearly behaving badly under common sense, some who have a good case for the independent classification, and some in a clear gray area are facing hundreds of lawsuits.
Lower courts are faced with and Dynamex, which they are obligated to follow until the new laws take effect January 1. If the new laws take effect January 1. If AB 5 and AB 170 are stayed via referendum until then, they will be applying Dynamex. If a referendum does not qualify, then as of January 1, it's Dynamex's ABC test with exceptions for specific job classifications.
Assuming no referendum, a freelance writer who writes 34 columns for a publication in 2019 has been an independent contractor but becomes an employee after we replace our cute animal calendars for 2020. Let's think about that for a moment.
I've never done freelance writing or licensed my content. However say some of these publications that have stopped covering Sacramento said "You know, Scott Lay has that Nooner thing and with a bit of editing and toning down of his language, we can have a weekly wrap from his daily missive. We can offer him some money for what he's already doing and we he is broke doing his labor of love."
They approach me and I say "You're willing to license from me for what I'm already doing and I'm not displacing any of your workers?"
Oh, then I think "Wait. Under AB 5 and the new Labor Code §2750.3(b)(x), you'll have to pick the 34 weeks that you want, as the 35th week makes me your employee, even though all you're doing is paying for the right to use what I'm already writing for over 8,000 readers a day. Your policies for employees would prohibit me from taking any other income related to writing (subscriptions and advertising."
"(x) Services provided by a freelance writer, editor, or newspaper cartoonist who does not provide content submissions to the putative employer more than 35 times per year. Items of content produced on a recurring basis related to a general topic shall be considered separate submissions for purposes of calculating the 35 times per year. For purposes of this clause, a “submission” is one or more items or forms of content by a freelance journalist that: (I) pertains to a specific event or topic; (II) is provided for in a contract that defines the scope of the work; (III) is accepted by the publication or company and published or posted for sale."
I have not written about this before, have not communicated with any legislator or staff member or the Governor about this, and have zero interest in affecting the outcome of AB 5/AB 170. As I told the anti-vaxxers, that ship has sailed. They can go the referendum route.
Of course the Los Angeles Times newsroom workers who have had a brutal battle over their first contract even with their savior Dr. Patrick Soon-Shion want that language. That's understandable and I'd probably change my Twitter name to reflect it as well. But, I use this example because it is so arbitrary. It does not affect me right now at all.
The exceptions were arbitrary and interest-driven. The newspaper delivery exemption in AB 170 is, well...
Well, it shows that the next year is going to be about negotiation rewriting the relevant sections of the Labor Code.
Thus, in addition to a referendum, I expect the "gig" companies to qualify an initiative that goes very far in their direction. Labor and its supporters has staked out their endzone all the way in the Dynamex ABC direction, with exemptions, most ongoing except for the newspapers. It is not an accident that newspaper delivery is a one-year exemption.
After January 6 when the Legislature returns for the second year of the biennium, we will likely have "stayed" AB 5 and AB 170 and an initiative that goes far in the direction of business. Meanwhile, the folks who buy ink by the barrel have one year to follow and control the public coverage of the debate of the middle ground that will be negotiated.
Last night was pre-season folks. And, while there are clear winners and losers in AB 5/AB170, the truest winners are lobbyists and candidates for office who can participate in that discussion in a big election year.
I've tried to make this manageable to read. It's way too long, but I can't do justice to the story that involves most of my readers and I wanted to give both sides a fair shake. AB 5 author Lorena Gonzalez knows my concerns and how much of a fan of hers I am. I also know first-hand that many Dems who are putting up "Aye" votes are not happy and want to take the approach of rewriting the Labor Code instead of ABC minus exemptions.
It just wasn't going to happen this year, for a variety of reasons, some of which I can't write here.
IMPORTANT NOTE: I hate asking for money; I really do. I'm not hear to get it rich and clearly am a horrible businessman.
I know some of you hate me doing so. I'm also fed up with the presidential candidates who email me with stupid subject lines to ask for money six times per day (Tim Ryan--go away and who did you buy my address from) and the advertisements for local events in Los Angeles and San Diego that I'm entitled to receive for paying $15.96 per month for each of the papers that republish each other's stories.
You see my entire income in this column. I'm not starving, nor do I have benefits or am I putting away money for retirement these days. It's a labor of love, and indeed love doing it. I love providing it for free to tell our collective story around the Capitol, but you also know that many of you who tell me you love The Nooner and love the pod spend tons of money in campaigns and lobbying.
So, we have $31.92 per month for the LAT and SDUT to read the same stories, and I do it because I like the reporters there, some of whom I would call friends. I ask for $5/month of $50 bucks A YEAR for original content. I have good days and bad days, as do the daily papers. I miss occasional days and extend advertisers accordingly and round up or extend Premium subscribers accordingly
Think about where you get your information and support it accordingly. I subscribe to the digital version of ten papers and support the public radio stations I regularly link to, even though I haven't read most of that content over the last week. There's enough from my scratch pad library all over my desk.
Don't just read The Nooner or listen to the podcast. Support the content. If you're a student, email me a photo of your student ID card (if there's an SSN on it, that's against federal law, but if there is, obscure it. Other folks will underwrite a free Premium subscription for you.
Annoying, but don't tell me the folks who aren't literally counting on monthly income aren't asking for more of your dollars through email and social media.
If you are (or think you are) Nooner Premium, you should have an expiration date toward the top and it should say "The Premium Nooner" in your email subject line.
Support The Nooner. That's all. And thank you for your support over the years of Morse Elementary, Kraemer Jr. High, Valencia High, Orange Coast College, UC Davis, and UC Davis Law. I couldn't have written any of this content without your tax support of public education.
Yes, it is a labor of love, but it also pays the rent. I think I heard yesterday that the rent is too damn high and I'm experiencing it for the first time since being a homeowner. Love doesn't pay the bills...
Hugs and kisses. I really do love you all, even when I call your floor rhetoric bunk--on both sides.
#AB48 bullet points below the jump...
QUICK BILL UPDATES:
I have so much more, but I really need to shower and get my derriere to the Capitol. More later and anything until tonight will be on my Twitter feed if you don't mind uneditable snark and things like whose/who's, there/their/they're, its/it's, your/you're, etc. I'll do what most people do, blame it on auto-correct.
CAKEDAY and CLASSIFIEDS after the jump...
CAKEDAY: Light those candles for Dean Murukami and Ben Tulchin!