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By Felipe Fuentes, AGC's Legislative Advocate and Dustin Steiner, Vice President Government & Industry Relations. - Published in Monday Morning Quarterback - January 23, 2023 The new year always brings with it new laws. The following are bills passed by the legislature in 2022, signed into law by the Governor, and in effect for 2023. AB 1041 (Wicks) Employment: leave. Would expand the class of people for whom an employee may take leave to care for to include a designated person. The bill would define “designated person” to mean any individual related by blood or whose association with the employee is the equivalent of a family relationship. The bill would authorize a designated person to be identified at the time the employee requests the leave. The bill would authorize an employer to limit an employee to one designated person per 12-month period. AB 1802 (Maienschein) Limited liability companies. Under current law, a limited liability company is a member-managed limited liability company unless the articles of organization contain a statement that the limited liability company is to be manager managed. Existing law provides for filing a certificate of cancellation of the articles of organization in specified circumstances. Existing law, except as specified, authorizes managers, or specified other persons, as applicable, to wind up the affairs of the limited liability company. Current law provides that a limited liability company that has filed a certificate of cancellation continues to exist for limited purposes, including the purpose of winding up its affairs. Current law requires those persons winding up the affairs of the limited liability company to give written notice of the commencement of winding up by mail to creditors and claimants. Existing law requires that any assets inadvertently or otherwise omitted from the winding up continue in the canceled limited liability company for the benefit of the persons entitled to those assets upon cancellation, and, on realization, be distributed accordingly. Current law, except as specified, requires the managers of a limited liability company or certain other persons, as applicable, to file with the Secretary of State a certificate of cancellation of articles of organization upon the completion of the winding up of the affairs of the limited liability company under current law. This law would specifically require that omitted assets be used to discharge unsatisfied liabilities, if any, known to the company, and that any excess be distributed to the members. If assets are omitted from the winding up, the bill would authorize any person authorized to wind up the affairs of a limited liability company that has filed a certificate of cancellation to use the assets to discharge the liabilities of the limited liability company and distribute any remaining assets to the members. AB 1851 (R. Rivas) Public works: prevailing wage: hauling. Current law requires that, except as specified, not less than the general prevailing rate of per diem wages, determined by the Director of Industrial Relations, be paid to workers employed on public works projects. Current law defines the term “public works” for purposes of requirements regarding the payment of prevailing wages to include construction, alteration, demolition, installation, or repair work done under contract and paid for using public funds, except as specified. Current law includes in the definition of “public works” under certain circumstances the hauling of refuse from a public works site to an outside disposal location. This law clarifies that on-haul trucking at public works projects must be paid a prevailing wage when an individual truck driver’s work is integrated into the flow process of construction as per O.G. Sansone Co. v. Department of Transportation. This clarification was sought by the bill sponsors and author based on their belief that a series of recent California Supreme Court decisions (commonly known as the Kaanaana, Mendoza, and Busker decisions) found that because on-haul trucking is not specifically mentioned in statute as comprising part of a public works project, it is unclear whether it falls under prevailing wage requirements. AB 1932 (Daly) Public contracts: construction manager at-risk construction contracts. Current law authorizes, until January 1, 2023, a county, with approval of the board of supervisors, or a public entity, of which the members of the county board of supervisors make up the members of the governing body of that public entity, with the approval of its governing body, to utilize construction manager at-risk construction contracts for the erection, construction, alteration, repair, or improvement of any infrastructure, owned or leased by the county, subject to certain requirements, including that the method may only be used for projects that are in excess of $1,000,000. This bill would extend those provisions until January 1, 2029. AB 2188 (Quirk) Discrimination in employment: use of cannabis. On or after January 1, 2024, this law makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace, except for pre-employment drug screening, as specified, or upon an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. The law exempts certain applicants and employees from the bill’s provisions, including employees in the building and construction trades and applicants and employees in positions requiring a federal background investigation or clearance, as specified. This law specifies it does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering a federal contract. AB 2243 (E. Garcia) Occupational safety and health standards: heat illness: wildfire smoke. Would require the Division of Occupational Safety and Health, before December 1, 2025, to submit to the standards board a rulemaking proposal to consider revising the heat illness standard and wildfire smoke standard. The bill would require the division, in preparing the proposed regulations, to consider revising the heat illness standard to require employers to distribute copies of the Heat Illness Prevention Plan, as provided. The bill would require the standards board to review the proposed changes and consider adopting revised standards on or before December 31, 2025. This law will further require the division to consider regulations, or revising existing regulations, relating to protections related to acclimatization to higher temperatures, as provided. AB 2271 (Gipson) Los Angeles County Metropolitan Transportation Authority: contracting: local businesses. Current law authorizes LA Metro to provide for a small business preference of 5% of the lowest responsible bidder meeting specifications, with respect to contracts in construction, the construction component of a design-build team, the procurement of goods, or the delivery of services. Current law also authorizes LA Metro to set aside work for competition, until January 1, 2024, (1) among certified small business enterprises and award each contract to the certified small business enterprise that is the lowest responsible bidder whenever the expected expenditure required exceeds $5,000 but is less than $3,000,000, as specified, and (2) among medium business enterprises for no more than 20 contracts and award each contract to the medium business enterprise that is the lowest responsible bidder whenever the expected expenditure required exceeds $3,000,000 but is less than $30,000,000. Current law defines a small business enterprise and medium business enterprise for these purposes. This law would authorize LA Metro to also provide for a local small business enterprise preference of 5% of the lowest responsible bidder meeting specifications, with respect to contracts in construction, the construction component of a design-build team, the procurement of goods, or the delivery of services, and to provide the preference to nonlocal businesses if the bid includes a 30% participation by local small business enterprises. AB 2446 (Holden) Embodied carbon emissions: construction materials. Would require the State Air Resources Board, by July 1, 2025, to develop, in consultation with specified stakeholders, a framework for measuring and then reducing the average carbon intensity of the materials used in the construction of new buildings, including those for residential uses. This law would require the framework to include a comprehensive strategy for the state’s building sector to achieve a 40% net reduction in greenhouse gas emissions of building materials, as determined from a baseline calculated using a certain 2026 report, if that report is adequate, or as specified. The bill would require the strategy to achieve this target as soon as possible, but no later than December 31, 2035, with an interim target of 20% net reduction by December 31, 2030. The bill would authorize the state board to adjust the interim target, as provided, and would require the established targets to begin no sooner than January 1, 2027. The bill would require the state board to form and maintain a technical advisory committee, as provided, to, among other things, review information that is required to be submitted by entities that are unable to meet the targets. The bill also would require the state board to research and prioritize actions and provisions that leverage state and federal incentives, as provided, and evaluate measures to support market demand and financial incentives to encourage the production and use of materials used in construction-related projects with low greenhouse gas intensity. AB 2693 (Reyes) COVID-19: exposure. Existing law authorizes the Division of Occupational Safety and Health to prohibit the performance of an operation or process, or entry into that place of employment when, in its opinion, a place of employment, operation, or process, or any part thereof, exposes workers to the risk of infection with COVID-19, to constitute an imminent hazard to employees. This bill would extend those provisions until January 1, 2024. SB 216 (Dodd) Contractors: workers’ compensation insurance: mandatory coverage. This bill, until January 1, 2026, would require concrete contractors holding a C-8 license, warm-air heating, ventilation, and air-conditioning (HVAC) contractors holding a C-20 license, asbestos abatement contractors holding a C-22 license, or tree service contractors holding a D-49 license to also obtain and maintain workers’ compensation insurance even if that contractor has no employees. After July 1, 2023, and if the registrar finds the licensee has employees and lacks the proper valid certification, the bill will require the suspension of any license that is active and has a C-8, C-20, C-22, or D-49 classification removed. The bill would provide that a joint venture, as specified, that files a certificate of exemption is not required to obtain workers’ compensation insurance. As of January 1, 2026, the bill would require all licensed contractors or applicants for licensure, regardless of classification, to obtain and maintain workers’ compensation insurance unless they are organized as a joint venture and file a certificate of exemption. SB 991 (Newman) Public contracts: progressive design-build: local agencies. Current law authorizes the Director of General Services to use the progressive design-build procurement process for the construction of up to 3 capital outlay projects, as jointly determined by the Department of General Services and the Department of Finance, and prescribes that process. Current law defines “progressive design-build” as a project delivery process in which both the design and construction of a project are procured from a single entity that is selected through a qualifications-based selection at the earliest feasible stage of the project. Current law, pursuant to the process, after selection of a design-build entity, authorizes the Department of General Services to contract for design and preconstruction services sufficient to establish a guaranteed maximum price, as defined. Current law authorizes the department, upon agreement on a guaranteed maximum price, to amend the contract in its sole discretion, as specified. Current law requires specified information to be verified under penalty of perjury. This bill, until January 1, 2029, would authorize local agencies, defined as any city, county, city and county, or special district authorized by law to provide for the production, storage, supply, treatment, or distribution of any water from any source, to use the progressive design-build process for up to 15 public works projects in excess of $5,000,000 for each project, similar to the progressive design-build process authorized for use by the Director of General Services. SB 1127 (Atkins) Workers’ compensation: liability presumptions. Current law requires an injured employee to file a claim form with the employer. Under current law, except for specified injuries, if liability is not rejected within 90 days after the date the claim form is filed with the employer, the injury is presumed compensable, and the presumption is rebuttable only by evidence discovered subsequent to the 90-day period. For certain injuries or illnesses, including hernia, heart trouble, pneumonia, or tuberculosis, among others, sustained in the course of employment of a specified member of law enforcement or a specified first responder, this bill would reduce those time periods to 75 days. SB 1162 (Limon) Employment: Salaries and Wages. Current law requires a private employer that has 100 or more employees and is required to file an annual Employer Information Report (EEO-1) pursuant to federal law to submit a pay data report to the Civil Rights Department that contains specified employee information on or before March 31, 2021, and on or before March 31 each year thereafter. Current law prescribes the information that must be included in the pay data report, including the number of employees by race, ethnicity, and sex in specified job categories. Current law requires employers with multiple establishments to submit a report for each establishment and a consolidated report that includes all employees. Current law permits the department to develop, publish on an annual basis, and publicize aggregate reports, provided that the aggregate reports are reasonably calculated to prevent the association of any data with any individual business or person. Current law provides that an employer is in compliance with the requirement that it submit a pay data report if it submits an EEO-1 to the department containing the same or substantially similar pay data information. Current law permits the department to seek an order requiring an employer to comply with these provisions and permits it to recover the costs associated with seeking the order for compliance. This bill would, instead, require a private employer that has 100 or more employees to submit a pay data report to the department. This bill would revise the timeframe in which a private employer is required to submit this information to require that it be provided on or before the second Wednesday of May 2023, and for each year thereafter on or before the second Wednesday of May. SB 1044 (Durazo) Employers: emergency condition: retaliation. This law would prohibit an employer, in the event of an emergency condition, as defined, from taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace or worksite within the affected area because the employee has a reasonable belief that the workplace or worksite is unsafe, except as specified. The bill would also prohibit an employer from preventing any employee, including employees of public entities, as specified, from accessing the employee’s mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety. The bill would require an employee to notify the employer of the emergency condition requiring the employee to leave or refuse to report to the workplace or worksite, as specified. The bill would clarify that these provisions are not intended to apply when emergency conditions that pose an imminent and ongoing risk of harm to the workplace, the worksite, the worker, or the worker’s home have ceased.
By Felipe Fuentes, AGC's Legislative Advocate and Dustin Steiner, Vice President Government & Industry Relations. - Published in Monday Morning Quarterback - January 23, 2023
The new year always brings with it new laws. The following are bills passed by the legislature in 2022, signed into law by the Governor, and in effect for 2023.
AB 1041 (Wicks) Employment: leave.
Would expand the class of people for whom an employee may take leave to care for to include a designated person. The bill would define “designated person” to mean any individual related by blood or whose association with the employee is the equivalent of a family relationship. The bill would authorize a designated person to be identified at the time the employee requests the leave. The bill would authorize an employer to limit an employee to one designated person per 12-month period.
AB 1802 (Maienschein) Limited liability companies.
Under current law, a limited liability company is a member-managed limited liability company unless the articles of organization contain a statement that the limited liability company is to be manager managed. Existing law provides for filing a certificate of cancellation of the articles of organization in specified circumstances. Existing law, except as specified, authorizes managers, or specified other persons, as applicable, to wind up the affairs of the limited liability company. Current law provides that a limited liability company that has filed a certificate of cancellation continues to exist for limited purposes, including the purpose of winding up its affairs. Current law requires those persons winding up the affairs of the limited liability company to give written notice of the commencement of winding up by mail to creditors and claimants. Existing law requires that any assets inadvertently or otherwise omitted from the winding up continue in the canceled limited liability company for the benefit of the persons entitled to those assets upon cancellation, and, on realization, be distributed accordingly. Current law, except as specified, requires the managers of a limited liability company or certain other persons, as applicable, to file with the Secretary of State a certificate of cancellation of articles of organization upon the completion of the winding up of the affairs of the limited liability company under current law. This law would specifically require that omitted assets be used to discharge unsatisfied liabilities, if any, known to the company, and that any excess be distributed to the members. If assets are omitted from the winding up, the bill would authorize any person authorized to wind up the affairs of a limited liability company that has filed a certificate of cancellation to use the assets to discharge the liabilities of the limited liability company and distribute any remaining assets to the members.
AB 1851 (R. Rivas) Public works: prevailing wage: hauling.
Current law requires that, except as specified, not less than the general prevailing rate of per diem wages, determined by the Director of Industrial Relations, be paid to workers employed on public works projects. Current law defines the term “public works” for purposes of requirements regarding the payment of prevailing wages to include construction, alteration, demolition, installation, or repair work done under contract and paid for using public funds, except as specified. Current law includes in the definition of “public works” under certain circumstances the hauling of refuse from a public works site to an outside disposal location. This law clarifies that on-haul trucking at public works projects must be paid a prevailing wage when an individual truck driver’s work is integrated into the flow process of construction as per O.G. Sansone Co. v. Department of Transportation. This clarification was sought by the bill sponsors and author based on their belief that a series of recent California Supreme Court decisions (commonly known as the Kaanaana, Mendoza, and Busker decisions) found that because on-haul trucking is not specifically mentioned in statute as comprising part of a public works project, it is unclear whether it falls under prevailing wage requirements.
AB 1932 (Daly) Public contracts: construction manager at-risk construction contracts.
Current law authorizes, until January 1, 2023, a county, with approval of the board of supervisors, or a public entity, of which the members of the county board of supervisors make up the members of the governing body of that public entity, with the approval of its governing body, to utilize construction manager at-risk construction contracts for the erection, construction, alteration, repair, or improvement of any infrastructure, owned or leased by the county, subject to certain requirements, including that the method may only be used for projects that are in excess of $1,000,000. This bill would extend those provisions until January 1, 2029.
AB 2188 (Quirk) Discrimination in employment: use of cannabis.
On or after January 1, 2024, this law makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace, except for pre-employment drug screening, as specified, or upon an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. The law exempts certain applicants and employees from the bill’s provisions, including employees in the building and construction trades and applicants and employees in positions requiring a federal background investigation or clearance, as specified. This law specifies it does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering a federal contract.
AB 2243 (E. Garcia) Occupational safety and health standards: heat illness: wildfire smoke.
Would require the Division of Occupational Safety and Health, before December 1, 2025, to submit to the standards board a rulemaking proposal to consider revising the heat illness standard and wildfire smoke standard. The bill would require the division, in preparing the proposed regulations, to consider revising the heat illness standard to require employers to distribute copies of the Heat Illness Prevention Plan, as provided. The bill would require the standards board to review the proposed changes and consider adopting revised standards on or before December 31, 2025. This law will further require the division to consider regulations, or revising existing regulations, relating to protections related to acclimatization to higher temperatures, as provided.
AB 2271 (Gipson) Los Angeles County Metropolitan Transportation Authority: contracting: local businesses.
Current law authorizes LA Metro to provide for a small business preference of 5% of the lowest responsible bidder meeting specifications, with respect to contracts in construction, the construction component of a design-build team, the procurement of goods, or the delivery of services. Current law also authorizes LA Metro to set aside work for competition, until January 1, 2024, (1) among certified small business enterprises and award each contract to the certified small business enterprise that is the lowest responsible bidder whenever the expected expenditure required exceeds $5,000 but is less than $3,000,000, as specified, and (2) among medium business enterprises for no more than 20 contracts and award each contract to the medium business enterprise that is the lowest responsible bidder whenever the expected expenditure required exceeds $3,000,000 but is less than $30,000,000. Current law defines a small business enterprise and medium business enterprise for these purposes. This law would authorize LA Metro to also provide for a local small business enterprise preference of 5% of the lowest responsible bidder meeting specifications, with respect to contracts in construction, the construction component of a design-build team, the procurement of goods, or the delivery of services, and to provide the preference to nonlocal businesses if the bid includes a 30% participation by local small business enterprises.
AB 2446 (Holden) Embodied carbon emissions: construction materials.
Would require the State Air Resources Board, by July 1, 2025, to develop, in consultation with specified stakeholders, a framework for measuring and then reducing the average carbon intensity of the materials used in the construction of new buildings, including those for residential uses. This law would require the framework to include a comprehensive strategy for the state’s building sector to achieve a 40% net reduction in greenhouse gas emissions of building materials, as determined from a baseline calculated using a certain 2026 report, if that report is adequate, or as specified. The bill would require the strategy to achieve this target as soon as possible, but no later than December 31, 2035, with an interim target of 20% net reduction by December 31, 2030. The bill would authorize the state board to adjust the interim target, as provided, and would require the established targets to begin no sooner than January 1, 2027. The bill would require the state board to form and maintain a technical advisory committee, as provided, to, among other things, review information that is required to be submitted by entities that are unable to meet the targets. The bill also would require the state board to research and prioritize actions and provisions that leverage state and federal incentives, as provided, and evaluate measures to support market demand and financial incentives to encourage the production and use of materials used in construction-related projects with low greenhouse gas intensity.
AB 2693 (Reyes) COVID-19: exposure.
Existing law authorizes the Division of Occupational Safety and Health to prohibit the performance of an operation or process, or entry into that place of employment when, in its opinion, a place of employment, operation, or process, or any part thereof, exposes workers to the risk of infection with COVID-19, to constitute an imminent hazard to employees. This bill would extend those provisions until January 1, 2024.
SB 216 (Dodd) Contractors: workers’ compensation insurance: mandatory coverage.
This bill, until January 1, 2026, would require concrete contractors holding a C-8 license, warm-air heating, ventilation, and air-conditioning (HVAC) contractors holding a C-20 license, asbestos abatement contractors holding a C-22 license, or tree service contractors holding a D-49 license to also obtain and maintain workers’ compensation insurance even if that contractor has no employees. After July 1, 2023, and if the registrar finds the licensee has employees and lacks the proper valid certification, the bill will require the suspension of any license that is active and has a C-8, C-20, C-22, or D-49 classification removed. The bill would provide that a joint venture, as specified, that files a certificate of exemption is not required to obtain workers’ compensation insurance. As of January 1, 2026, the bill would require all licensed contractors or applicants for licensure, regardless of classification, to obtain and maintain workers’ compensation insurance unless they are organized as a joint venture and file a certificate of exemption.
SB 991 (Newman) Public contracts: progressive design-build: local agencies.
Current law authorizes the Director of General Services to use the progressive design-build procurement process for the construction of up to 3 capital outlay projects, as jointly determined by the Department of General Services and the Department of Finance, and prescribes that process. Current law defines “progressive design-build” as a project delivery process in which both the design and construction of a project are procured from a single entity that is selected through a qualifications-based selection at the earliest feasible stage of the project. Current law, pursuant to the process, after selection of a design-build entity, authorizes the Department of General Services to contract for design and preconstruction services sufficient to establish a guaranteed maximum price, as defined. Current law authorizes the department, upon agreement on a guaranteed maximum price, to amend the contract in its sole discretion, as specified. Current law requires specified information to be verified under penalty of perjury. This bill, until January 1, 2029, would authorize local agencies, defined as any city, county, city and county, or special district authorized by law to provide for the production, storage, supply, treatment, or distribution of any water from any source, to use the progressive design-build process for up to 15 public works projects in excess of $5,000,000 for each project, similar to the progressive design-build process authorized for use by the Director of General Services.
SB 1127 (Atkins) Workers’ compensation: liability presumptions.
Current law requires an injured employee to file a claim form with the employer. Under current law, except for specified injuries, if liability is not rejected within 90 days after the date the claim form is filed with the employer, the injury is presumed compensable, and the presumption is rebuttable only by evidence discovered subsequent to the 90-day period. For certain injuries or illnesses, including hernia, heart trouble, pneumonia, or tuberculosis, among others, sustained in the course of employment of a specified member of law enforcement or a specified first responder, this bill would reduce those time periods to 75 days.
SB 1162 (Limon) Employment: Salaries and Wages.
Current law requires a private employer that has 100 or more employees and is required to file an annual Employer Information Report (EEO-1) pursuant to federal law to submit a pay data report to the Civil Rights Department that contains specified employee information on or before March 31, 2021, and on or before March 31 each year thereafter. Current law prescribes the information that must be included in the pay data report, including the number of employees by race, ethnicity, and sex in specified job categories. Current law requires employers with multiple establishments to submit a report for each establishment and a consolidated report that includes all employees. Current law permits the department to develop, publish on an annual basis, and publicize aggregate reports, provided that the aggregate reports are reasonably calculated to prevent the association of any data with any individual business or person. Current law provides that an employer is in compliance with the requirement that it submit a pay data report if it submits an EEO-1 to the department containing the same or substantially similar pay data information. Current law permits the department to seek an order requiring an employer to comply with these provisions and permits it to recover the costs associated with seeking the order for compliance. This bill would, instead, require a private employer that has 100 or more employees to submit a pay data report to the department. This bill would revise the timeframe in which a private employer is required to submit this information to require that it be provided on or before the second Wednesday of May 2023, and for each year thereafter on or before the second Wednesday of May.
SB 1044 (Durazo) Employers: emergency condition: retaliation.
This law would prohibit an employer, in the event of an emergency condition, as defined, from taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace or worksite within the affected area because the employee has a reasonable belief that the workplace or worksite is unsafe, except as specified. The bill would also prohibit an employer from preventing any employee, including employees of public entities, as specified, from accessing the employee’s mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety. The bill would require an employee to notify the employer of the emergency condition requiring the employee to leave or refuse to report to the workplace or worksite, as specified. The bill would clarify that these provisions are not intended to apply when emergency conditions that pose an imminent and ongoing risk of harm to the workplace, the worksite, the worker, or the worker’s home have ceased.