Legislative Victories for Workers
There were several important bills signed into law this year which will benefit workers and their communities.
SB 951 was authored by Senator Durazo to raises wage replacement rates for State Disability Insurance and Paid Family Leave to 90% of regular income for those making under about $57,000/year. Under current law, most workers receive just 60% of their wages, which is not feasible for workers at this income level, forcing them to work through an illness or go back to work right after having a baby. It was a close call, but the Governor signed it on the last day, and the new, improved rates will go into effect in 2025. It’s paid for by requiring the wealthiest Californians to pay the same 1.1% of their salary into the SDI fund that low wage workers already do. Imagine that.
SB 1044 prohibits employers from taking adverse action against employees for refusing to report or leaving work in an emergency, defined as (1) conditions of disaster or peril caused by natural forces or a criminal act, or (2) an order to evacuate a workplace, worksite, a worker’s home, or the school of a worker’s child. (This does not include a health pandemic; therefore, the law will not be applicable to employees that claim the worksite is unsafe due to COVID-19.) This bill could apply in mandatory evacuation situations due to wildfires, where employers have compelled workers to stay put as the fires approach with threat of job loss. Effective January 2023.
AB 2300, authored by Assemblymember Kalra, was signed into law by Governor Newsom. AB 2300 enables food insecure California workers to leave situations of abuse and harassment in the workplace. CalFresh and CalWORKs provide crucial financial aid, food assistance, and supportive services to families who are paid below-subsistence wages, but these benfits rely on maintaining a certain number of work hours. Previously, when participants quit their job or reduce their work hours in response to abusive or adverse work environments, no distinction was made, and a loss of benefits would occur. AB 2300 ensures that CalWorks and CalFresh families are protected by the same labor and employment rights as all Californian workers, and requires counties to provide information to program participants about these rights. CalWorks and Calfresh families will no longer be forced to endure harmful circumstances in order to feed their families. (Women's Foundation CA Solis Policy Institute fellows were instrumental in this bill, meeting with relevant impacted recipients and governmental agencies charged with implementing the bill, shopping it, drafting it, and pushing it through the legislature. We applaud their work!)
The FAST Act (AB 257) establishes a first-in-the-nation Fast Food Sector Council, including representatives of state agencies, workers and employers, to set and review minimum health, safety and employment standards in the industry, was signed into law by Governor Newsom. It will hold franchisors responsible for ensuring that their franchisees actually comply with labor standards, including anti-retaliation provisions and more.
We weren't able to achieve all of our worker-friendly ambitions this year. SB 1162, the Pay Transparency for Pay Equity Act, passed, but only after removal of the requirement for the public disclosure of company pay data reports. While this setback is disappointing, other provisions of the bill are still be important victories for workers. The most important outcome is that the data will have to be reported to the state of California. Effective January 1, 2023. Read more here.
AB 2847, a Coalition of Low-Wage and Immigrant Worker Advocates (CLIWA) priority bill, was vetoed by Governor Newsom. This bill was authored by Assemblymember Eduardo Garcia and would have created a state Excluded Workers Pilot Program to provide unemployment benefits to excluded immigrant workers. Through the program, people who are excluded from UI solely due to their immigration status would have been able to receive $300 a week for up to 20 weeks of unemployment. This would have benefited an estimated 140,000 workers, and builds off of similar programs and campaigns in NY and Colorado. The bill made it through the legislature with no opposition and really strong support, but was ultimately vetoed by the Governor, ostensibly for budget-related reasons.
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The SPI team virtually celebrates their AB 2300 victory and the end of their fellowship program with Assemblyman Kalra staffer Marissa Plante (Staff Attorney Karin Umfrey is in the top right corner)
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Can Prosecutorial Discretion Protect Workers from Workplace Abuses?
Many immigrant workers are exploited by employers who use their precarious legal status to steal their wages, subject them to dangerous and unsafe working conditions, and harass and abuse them without consequence.
Secretary Mayorkas recently published a memo instructing the Department of Homeland Security (DHS) to provide guidance on prosecutorial discretion. This memo also required DHS to consider a variety of listed factors when conducting a case-by-cases assessment for enforcement action, unrelated to prosecutorial discretion in labor disputes. Worker advocates gained some momentum in testing this tool to see if a prosecutorial discretion process would be accessible to workers and workers rights advocates. However, a court in Texas vacated the "Final Memorandum" for reasons related to immigration enforcement policies in the memo. (Read the basis for this and case outcome here.) Despite this decision, the DHS still has broad discretion and a well-rooted right to exercise prosecutorial discretion. [Heckler v. Chaney 470 U.S. 821, 831 (1985).] Prosecutorial discretion would be particularly helpful in labor dispute investigations, which are frequently impeded by immigration-related retaliation which makes workers reluctant or fearful to advocate for their rights.
This July, the Department of Labor (DOL) published a formal FAQ on how to request agencies to assist in requesting DHS for immigration-related prosecutorial discretion during labor disputes. While this is not a new type of request advocates can make, the DOL has made it known to most advocates that this is a tool to consider when helping workers exercise their labor rights. This process still lacks clarity. It's unclear to worker rights advocates how immigrant workers themselves would be able to seek prosecutorial discretion when they are victims or witnesses of labor exploitation.
While we wait for DHS to provide clarification as to how they would support the enforcement of labor standards and protect victims and witnesses of labor exploitation, it remains to be seen whether federal or state agencies will use this tool to request the DHS to provide deferred action for more effective investigations. For example, there is no data shared on which agencies request prosecutorial discretion, how many requests are made per year, how many are investigated, and how many are granted the deferred action that is sought. Regardless, this is an important tool for advocates to learn about and start using.
In December, there will be arguments made before the Supreme Court about the Fifth Circuit Court's decision to find the Biden administration memo procedurally invalid.
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The Ongoing Struggle for COVID Protections
Worksafe continues to push for workplace protections from COVID. Cal/OSHA’s current draft for COVID workplace protections in 2023-24 still does not include job or pay protections (“exclusion pay”). Our statewide OSH Strategy working group has advocated strongly against this omission, including powerful advocate and worker testimony (you can watch Worksafe's public comments here at the August meeting - Rachel at 22:15, and here in September - AnaStacia at 1:06:35).
Press reports strongly suggest that the decision to remove exclusion pay comes from the Governor’s office. But the administration’s rationale for removing protections for sick workers contradicts what Cal/OSHA itself has made clear: community spread cannot be separated from workplace spread.
The precedent being set here --public health exclusion, without job or pay protection-- is very troubling. Cal/OSHA itself has noted the disproportionate impact of the pandemic on Latino and Black workers. Those who are exposed at work and excluded because of that exposure will lose a week or more of wages. That’s one week’s worth of rent they won’t have, one week's worth of food they can’t buy, one week's worth of hours to qualify for medical insurance that they can’t accrue, one week’s worth of tuition they can’t pay. As workers come to work sick and expose others, who will also get sick, businesses will likewise bear the costs.
We will continue to campaign for exclusion protections to be reinstated. Stay tuned.
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Pending Standards Update
Worksafe is impatient to see more rapid progress on a number of workplace protections that are pending further progress at Cal/OSHA and the Standards Board. Work on the Indoor Heat Standard is unacceptably delayed despite repeated intervention from state lawmakers. Climate change is exacerbating dangerous conditions for workers across our state, and we are calling on decision makers to advance these delayed heat protections ASAP in 2023. Further, Cal/OSHA recently posted an update to the standard on Workplace Violence Prevention for General Industry. We are glad to share our comment letter - just drop us a line.
Cal/OSHA’s drawn-out process for creating workplace protections is coming under greater scrutiny, with unions and workers asking Worksafe how we can replicate the relatively rapid adoption of the Wildfire Smoke and COVID protections - both of which were adopted as emergency temporary standards. The Assembly Labor Committee chaired by Health & Safety Hero Ask Kalra is holding a hearing on “Challenges to Enforcing Worker Health and Safety Laws” that is expected to touch on this issue on November 15 at 12:30; you can find more information here.
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Staff and Board Retreat
Worksafe gathered all staff members together for the first time since the COVID pandemic on September 23rd. We met in Oakland to discuss our Theory of Change, shared presentations about our departmental work planning, shared our DISC work styles and talked about how to use this information to better understand and collaborate with one another, and discussed our employee policies along with potential changes that could be made to help with retention.
It was an excellent opportunity for us to get on the same page about our objectives and strategies, update one another on the work we’ve been doing, and get to know one another better.
One week following the staff retreat, we had a similar convening with board members, this time virtual. We'd previously met with several board members over the summer to continue to determine and refine the goals and strategies of Worksafe. We are excited to finalize this work and present it to you in the coming months.
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