Silver Taube: The good, the bad and the ugly—some propositions and bills to look out for
The polls are open at the Register of Voters for those who want to vote early. file photo.

    A few years ago, the demand for $15 an hour was dismissed as unimaginable pie in the sky. Spearheaded by fast-food workers and a remarkable campaign punctuated by strikes, walkouts, media, lawsuits and brave worker leaders, and led by the Fight for $15 and a union, $15 an hour went from laughable to viable.

    On Jan. 1, 2021, 20 states and 32 cities and counties raised their minimum wage. In 27 of these places, the pay floor reached or exceeded $15 an hour, according to a report by the National Employment Law Project.

    Despite the raise in pay, however, fast-food workers still face wage theft, sexual harassment and assault and violence in the workplace. Wage theft is rampant, in part, because franchisors have such a tight grip on franchisees’ prices and operations that franchisees can only increase profits by cutting the cost of labor.

    The Fight for $15 has now introduced a bill in California, AB 257 or the Fast Food Accountability and Standards Recovery Act (FAST), to combat these violations. This bill will transform the fast-food industry by giving workers and franchisees a voice. According to the Los Angeles Times, there may be no more consequential measure for labor rights in Sacramento this session.

    The bill would create a fast-food industry council with the power to set enforceable statewide standards for wages, hours, sick leave, training and working conditions for the more than 550,000 fast-food workers in California. It would also make franchisors jointly liable with their franchisees for those violations.

    The Fast-Food Sector Council’s 11 members would be appointed by the governor, the speaker of the Assembly, and the Senate Rules Committee. It would include representatives of the state Public Health, Occupational Safety and Health, Labor Standards and Industrial Relations regulatory agencies, as well as six members representing franchisors, franchisees and employees. Assemblymembers Ash Kalra and Evan Low are among the sponsors. The bill has now passed the Assembly and is awaiting a vote in the Senate.

    There is also a proposition that would benefit workers, the Living Wage Act of 2022, by an unlikely sponsor, entrepreneur Joe Sanberg, that would raise the state’s minimum wage to $18 in stages. Signature gathering began in February. If it gets 700,000 signatures, it will be on the ballot in November.

    “The purchasing power of the minimum wage declines over time,” said Sanberg. “That means that we have to keep fighting for an increased minimum wage to make sure that working people can afford life’s basic needs.”

    With AB 257 and the $18 minimum wage bill, what you see is what you get. However, there are other propositions and bills that are not what they seem.

    One of those is a bad bill, AB 1788. On its face, it appears to be aimed at deterring human trafficking. It levies small fines if a hotel supervisor knew or should have known of trafficking that occurred within the hotel or benefited from the trafficking.

    The problem with this bill is the federal human trafficking statute, the Trafficking Victims Protection Reauthorization Act at 18 USC Section 1595, provides for full civil damages, including emotional distress damages and punitive damages and not just a small fine if a person “knowingly benefits financially and knew or should have known that there was human trafficking.” Even Texas has a statute that provides for full civil damages. California has no such law.

    Hotels have been sued multiple times under the federal law, even in San Jose, and don’t want to be sued for full civil damages in state court which is a more favorable court for survivors. In January 2020, the National Center on Sexual Exploitation filed a lawsuit on behalf of a trafficked 16-year-old in federal court in San Jose for $9.9 million against Super 8 on The Alameda (owned by Wyndham), Clarion Inn on Monterey Road (owned by Choice) and Motel 6 on Fontaine Road (owned by GC Hospitality).

    A law in California, like the federal law or Texas law, could also be used to deter contractors when they knew or should have known that a subcontractor, like the subcontractor in the Silvery Towers case in San Jose, had engaged in labor trafficking. A slap on the wrist in the form of a small fine is not a sufficient deterrent.

    Finally, perhaps the ugliest and most deceptive proposition—currently in the signature gathering phase—is one by a coalition including the California Chamber of Commerce, California New Car Dealers Association and Western Growers entitled The Fair Pay and Employer Accountability Act of 2022. The proposed initiative effectively repeals the Private Attorney General Act (PAGA). This is just one of many, previously unsuccessful attempts over the years to gut PAGA.

    PAGA permits workers to file a civil lawsuit in the name of the state and all their coworkers and recover penalties for violation of the Labor Code such as minimum wage, sick leave, equal pay act and overtime violations. A report issued by the Center for Popular Democracy, the Partnership for Working Families and the UCLA Labor Center found that, contrary to the contention of employer trade groups that PAGA targeted employers for innocent errors, nearly nine out of 10 claims (89%) are for wage theft, including minimum wage and overtime violations.

    According to the report, “this heroic labor law enacted in 2003 is workers’ best chance to defend their labor rights.” But employer trade groups are utilizing deceptive verbiage to try to strip workers of these rights. The attorney general’s official summary is a more honest description of the bill: “Eliminates employees’ ability to file lawsuits for monetary penalties for state labor law violations.”

    In the coming months, I will be writing articles that highlight developments on the state and local level that promote or deter workers’ rights.

    San José Spotlight columnist Ruth Silver Taube is supervising attorney of the Workers’ Rights Clinic at the Katharine & George Alexander Community Law Center, supervising attorney of the Santa Clara County’s Office of Labor Standards Enforcement Legal Advice Line and a member of Santa Clara County’s Fair Workplace Collaborative. Her columns appear every second Thursday of the month. Contact her at [email protected].

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