San Jose lawmakers on Wednesday stopped a discussion on wage theft protections for construction workers because of a violation of the state’s open-meeting law.
The Brown Act prohibits a majority of any legislative body to discuss public business privately. For San Jose’s 11-member City Council, six or more members cannot talk about city business behind closed doors. The city was penalized in 2017 for violating the Brown Act in a high-profile lawsuit related to renaming a shopping center.
On Wednesday, the council’s Rules and Open Government Committee was set to consider expanding a wage theft policy to cover all major construction projects, including private development. The policy would require developers to disclose past wage theft and employment law violations, pay back wages or other judgements and lose public incentives if they abuse workers.
The city’s original policy, passed in 2016, excluded the private construction industry. The new proposal, signed by Vice Mayor Chappie Jones and councilmembers Raul Peralez, Magdalena Carrasco and Sergio Jimenez, suggested removing that exclusion and applying wage theft protections to all projects of 5,000 or more square feet.
The lawmakers said the construction industry is hit hardest by wage theft, pointing to the luxurious Silvery Towers, where a subcontractor was accused of holding workers captive in squalid conditions and forcing them to work against their will.
According to the proposal, one in six California construction workers is victimized, especially Latino and Asian immigrants, and 7,000 workers have been victims in the Bay Area since 2011.
The council committee couldn’t discuss the measure Wednesday because of the Brown Act violation and deferred it to March 1. It will then be prioritized for staff to begin working on the proposed changes.
Nearly a dozen activists and union leaders on Wednesday spoke in favor of expanding the protections.
“Wage theft is pervasive in the construction industry, and we’ve seen an uptick of threats,” said attorney Ruth Silver-Taube. “These measures will ensure that a second Silvery Towers will not happen again in San Jose.”
But business advocates, such as Eddie Truong from the SVO, said the stringent rules could scare away housing developers, especially as the city scrambles to build more affordable housing. “We must ensure that we don’t deny housing development through bureaucratic processes,” Truong said.
According to city attorney Rick Doyle, a Brown Act violation occurred because a group of San Jose lawmakers discussed the original wage theft policy years ago. Then Jones discussed the issue with additional members, including Jimenez and Peralez — pushing them over the majority limit of five members.
Councilwoman Sylvia Arenas on Wednesday questioned how a Brown Act violation occurred since the proposed measure to expand wage theft protections is different from the past discussions.
Doyle said the violation happened because councilmembers discussed the same topic — wage theft.
“While it may be 2 1/2 years ago, it’s still the (same) subject matter,” Doyle explained. “I will concede that we take a very conservative view of the Brown Act and there’s a reason for that. We got dinged with a judgement and paid very significant attorneys fees as a result.”
Councilman Johnny Khamis, who was part of the original group discussing wage theft years ago, said the policy needs to go through a “priority setting” process because of the amount of work it requires — not because of the violation.
“Staff said it’s going to take way more than 40 hours of staff time and they recommended it would go through priority setting,” Khamis said in an interview. “That would be the recommendation anyway.”
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