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END OF LEGISLATIVE YEAR 2020…
This is the final report on bills that ASAC monitored and/or lobbied during 2020.
The pandemic really disrupted the legislative process this year, as you probably know. But, rather than dwell on the virus and California’s responses to it perhaps this short overview will tell the tale:
Fortunately, construction was deemed “essential” and allowed to proceed. Unfortunately, many bills that were important and beneficial to subcontractors didn’t proceed through the process. This was initially due to edicts by the Senate and Assembly leadership for authors to cull out bills that were not “covid related” in order to focus on coping with the virus. However, hundreds of bills that weren’t covid related snuck their way through policy committees and onto the floor for vote anyway. This clogged the work load and wasted valuable time for construction bills to be heard. For instance, I waited 4 hours to virtually testify on a measure that had 300 people in line to speak. In-person lobbying was almost nonexistent and communications were solely by cell phones and email.
The construction bills that failed to move dealt with housing and density zoning, bonds, change orders, bidding, construction defects, career technical education (CTE), substitutions, license renewals, unlicensed activity, insurance coverage for business losses caused by Covid, design build, employee wages, independent worker status, attorney fees, illegal dumping, cement, false claims, and retention. In other words, all the issues that ASAC typically weighs in on.
The bills that we supported and which were signed into law follow:
SB 865 (Senator Hill, D): This bill follows up on his prior bill and improves the “call before you dig” process. It underwent several amendments and ASAC supported the measure in writing and during testimony in committee; the Governor signed it as Chapter 307, Statutes of 2020.
More specifically, SB 865 requires all new subsurface installations after January 1, 2023 to be mapped using geographic information systems (GIS) and maintained as permanent records of the operator. (“Operator” means any person, corporation, partnership, business trust, public agency, or other entity that owns, operates, or maintains a subsurface installation. An “operator” does not include an owner of real property where subsurface installations are exclusively located if they are used exclusively to furnish services on that property and the subsurface facilities are under the operation and control of that owner.)
It exempts from the GIS mapping and record keeping requirements any oil and gas flowlines three inches or less in diameter that are located within the administrative boundaries of an oil field.
It defines “flowline” to mean any pipeline that connects an oil, gas, or natural gas liquids well with a gathering line or header.
It requires an excavator discovering or causing damage to notify the Regional Notification Center (RNC) within 48 hours of discovering or causing the damage.
The two RNCs are Underground Service Alert of Northern California and Nevada, also known as USA North 811; and, Underground Service Alert of Southern California, also known as DigAlert. Collectively, the two centers are commonly referred to as 811 centers.
SB 1189 (Senator McGuire, D): The bill establishes a license for remodelers as it’s been shown that many “fixers” failed to properly construct or reconstruct portions of homes that were damaged in the wildfires; these “poachers” undermine the licensed subcontractors. We worked closely with the Contractors State License Board on this measure. It is Chapter 364, Statutes of 2020 and takes effect January 1, 2021.
SB 1159 (Senator Hill, D): Existing law establishes a workers’ compensation system, administered by the Administrative Director of the Division of Workers’ Compensation, to compensate an employee for injuries sustained in the course of employment. Existing law also creates a disputable presumption that specified injuries sustained in the course of employment of a specified member of law enforcement or a specified first responder arose out of and in the course of the employment. Existing law also governs the procedures for filing a claim for workers’ compensation, including filing a claim form, and provides that an injury is presumed compensable if liability is not rejected within 90 days after the claim form is filed. Existing case law provides for how certain presumptions may be rebutted.
This bill would define “injury” for any employee to include illness or death resulting from the 2019 novel coronavirus disease (COVID-19) under specified circumstances, until January 1, 2023. The bill would create a disputable presumption that the injury arose out of and in the course of the employment and is compensable, for specified dates of injury. The bill would require an employee to exhaust their paid sick leave benefits and meet specified certification requirements before receiving any temporary disability benefits or, for police officers, firefighters, and other specified employees, a leave of absence. The bill would also make a claim relating to a COVID-19 illness presumptively compensable, as described above, after 30 days or 45 days, rather than 90 days.
Until January 1, 2023, the bill would allow for a presumption of injury for all employees whose fellow employees at their place of employment experience specified levels of positive testing, and whose employer has 5 or more employees. We interpret this to include construction employees.
According to Senator Hill, “This bill will extend a COVID-19 rebuttable presumption to both public and private sector workers. While the Governor's Executive Order was temporary, COVID-19 will be with us beyond that date.”
The purpose of the bill is to provide presumptive workers' compensation benefits to those who are "subjectively" infected at work, but who may have difficulty proving this fact. This bill would declare that it is to take effect immediately as an urgency statute.
On an important matter, as noted in our prior Legislative Report …the need for millions of affordable homes to be built… While it, and homelessness in general, were the cornerstones of Governor Newsom’s inaugural address, the dozens of bills offering mechanisms to commence the construction brought out vociferous arguments for and against. Lenders, union skilled workforce vs. non-union labor, State vs. Local zoning and density oversight, tiny homes vs. high rises, developer vs. mom and pop auxiliary units and garage makeovers, etc. all collided and literally nothing was agreed upon. Indeed, evictions and foreclosures rose to the top of the “must do” list and that is still very controversial, as a deal was cut late in the night with the Governor to pass something; it provides for another temporary reprieve from eviction. Incidentally, Senate Judiciary Chairwoman Hannah Beth Jackson (D) launched into a blistering attack on the banks for not stepping up to the plate in the discussion; stay tuned for more on this in January!
ASAC will convene its annual meeting in the Capitol building among 15+ construction lobbyists in early 2021 to share plans for new bills. We’ve brought the group together for many years prior to bill introduction deadlines in order to “work together”. ASAC’s Mission is to “Represent Subcontractors” and these gatherings demonstrate our efforts to accomplish that mission!
ASAC’s GR Committee now has a Co-Chair. Tracy Berry from Cagwin & Dorward. She is an enthusiastic volunteer who reads the bills, opines in a timely manner and truly brings experience to the table. She and Dan McLennon Esq., GR Chair, have literally done a lot of work for all Subcontractors and are to be thanked!
If you have questions about any bill, please contact me!
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Please accept our sincere thanks for your generous donations to the Subcontractor Legal Defense Fund at SUBExcel 2020 in March. We were pleased to hit the $20k raised mark for the Fund throughout the conference, and we obviously could not have done this without you!
As you may have seen in our ASA updates, we welcomed a
big win on a pay when paid case in California, so your funds are reaping rewards.
SLDF is a unique entity that draws cases from across the country and sets important precedent for the entire industry. Your contribution enables us to keep that work going. You can review historic and new cases along with other information on the Fund on our website at www.sldf.net.
Lean SLDF history and more at:
Help Defend Our Future by Supporting the Subcontractors Legal Defense Fund
ASA underwrites the legal costs of filng "friend-of-the-court" briefs to inform the Court regarding the broader impact of relevant cases throughout the country. We have won dozens of these cases since 1997, vindicating subcontractor rights today and into the future!
Each year, courts across the country hand down hundreds of decisions on federal and state laws, as well as court-made or "case"law, that apply to subcontractors' businesses. Many of the decisions impacting subcontractors interpret the contract provisions of subcontract agreements—provisions like pay-if-paid, hold harmless, duty-to-defend, and no-damages-for-delay. Some of these decisions are precedent-setting and carry significance for subcontractors across state lines.
ASA's Subcontractors Legal Defense Fund supports ASA's critical legal activities in precedent-setting cases to protect the interests of all subcontractors. ASA taps the SLDF to fund amicus curiae, or friend-of-the-court," briefs in appellate-level cases that would have a significant impact on subcontractor rights.
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BASA, ASAC & ASA National are a united voice dedicated to improving the business environment in the construction industry, representing subcontractors before all branches (executive, legislative, judicial) and levels (federal, state, local) of government, to organizations representing other parts of the construction industry, to the news media, and others.
Any person, firm or corporation that in the normal course of business furnishes subcontract labor and/or materials to the construction industry or provides a service to such subcontractors or material suppliers is eligible for regular membership in the association
BASA, in conjunction with ASAC (ASA of California) & ASA National, offer subcontractor-tailored events and education including Members-only educational resources ranging from model contract language to risk management and marketing tools. We also offer in-person and distance-learning educational events – open to members, some free and some for greatly reduced fee. Some events that have additional option for non-members to attend - at a higher fee.
BASA is working hard to offer a balanced calendar of events that serves as educational and social – to provide connection between like-minded individuals and companies that stimulate the subcontractor’s, supplier’s and contractor’s business community. Easy technology formats also link our members to better serve their current needs.