Legislative Update from AEG’s Legislative Representative GV Ayers. Please contact Mbeswick@kleinfelder.com with any questions or comment below.
February 18, 2020
The bill introduction deadline is this Friday Feb 21.
A few new bills are listed on the attached tracking list, including:
AB 2081 (Boerner Horvath D) Coastal resources: research: landslides and erosion: early warning system: County of San Diego. Would appropriate from the General Fund the sum of $2,500,000 to Scripps Institution of Oceanography at the University of California San Diego to conduct research on coastal cliff landslides and erosion in the County of San Diego, as provided.
SCR 85 (Chang R) Women and Girls in STEM Week. Designates April 5, 2020, to April 11, 2020, inclusive, as Women and Girls in STEM Week and would encourage the support the observance of California’s Women and Girls in STEM Week by encouraging and celebrating women in the STEM fields.
Independent Contractors
Last year AB 5 (Lorena Gonzalez) was a union-backed bill which was signed by the Governor and which dealt with independent contractors. Specifically the bill codified the California Supreme Court Decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) that presumes a worker is an employee unless the hiring entity satisfies a three-factor test (“ABC” Test), and exempts from the test certain professions and business to business relationships. Ultimately the bill requires large categories of workers to be classified as employees.
Under the ABC Test, which has been California law since April 2018 due to the Supreme Court’s Decision, a person is considered an employee (rather than an independent contractor) UNLESS the hiring entity demonstrates that all of the following conditions are met (the ABC Test):
A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
B) The person performs work that is outside the usual course of the hiring entity’s business.
C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
This highly controversial bill, effectively requires the vast majority of workers to be employees rather than independent contractors. As the bill moved forward, there were a number of exemptions granted in the bill, including for a number of professional categories, including physicians, podiatrists, chiropractors, veterinarians, lawyers, architects, engineers, private investigators, accountants, securities brokers, real estate licensees, repossessors, direct salespersons, graphic artists, cosmetologists, and a host of other trades and professions. However the bill did NOT exempt many in the healthcare professions – physician assistants, nurse practitioners, clinical counselors, physical therapists, speech pathologists, and many professions and trades, including painters, plumbers, land surveyors, landscape architects, and many others — including geologists and geophysicists.
I have been involved in a number of meetings about this bill, and have pushed for exemptions for geologists. There is talk that there will be legislation to exempt a number of people, and there is great hope that geologists will be included in the exempted groups.
Several bills have already been introduced on this issue, and it is still early in the process. We will monitor this issue closely and seek to include geologists in the exemption group.
January 30, 2020
Not that many bills have been introduced thus far in the young Legislative Session. They will begin to pick up next week and bill introduction numbers will rapidly increase each week until the February 24 introduction deadline.
A few new bills are listed on the attached tracking list, including:
AB 1923 (Salas) Residential structures: natural gas shutoff devices. An interesting bill recently introduced. The bill would require the PUC to establish standards requiring seismic gas shutoff devices in new and remodeled residential buildings.
SB 865 (Hill) Excavations: subsurface installations. This is largely a cleanup bill which changes the name of the California Underground Save Excavation Board to the “Dig Safe Board” and makes a few other small changes.
There are also a few 2-Year bills left over from 2019. These bills can be amended or moved, but anything that happens to them will likely take place later in the year. The more notable are:
SB 556 (Pan) Professional Land Surveyors and Engineers. Revises the land surveyor and civil engineering practices. The bill establishes a certification process for a business practicing land surveying under the jurisdiction of BPELSG. Some of the revisions in the bill refer to works below the surface of the earth, and specifically defines “remote sensing” under the practice of engineering and land surveying to mean “the detecting, collection, processing and analysis of physical objects regarding the location or dimensions of a location or object, or otherwise using various acquisition methods intended to or resulting in the determination of the configuration or contour of the earth’s surface or the position of fixed objects above, on or below the surface of the earth.” Last year the bill was opposed by BPELSG for establishing and new certification program. Ultimately the bill was not heard in Assembly Business and Professions Committee before last year’s deadline. Because of the opposition, there is doubt about whether the bill will be voted on this year. We will watch this bill.
AB 613 (Low) Professions and vocations: regulatory fees. This bill would allow DCA boards, including BPELSG, to increase their fees every 4 years based on the increase in the California Consumer Price Index. The fee increases would be reviewed and approved by the DCA Director. The bill would allow a board to increase fees without pursuing legislation (legislation typically sets maximum fees that a board can charge) or without adopting regulations (the specific fees under that statutory are set by the board in regulations). This bill diminishes public input and transparency. As a profession, AEG would have no say in these increases. Last Summer, the Senate Business, Professions, and Economic Development Committee heard testimony on the bill, but did not take a vote on the bill. This bill is a 2-Year Bill, and could be moved in the same form or amended. We will watch this bill.
Independent Contractors.
Last year AB 5 (Lorena Gonzalez) was a union-backed bill which was signed by the Governor and which dealt with independent contractors. Specifically the bill codified the California Supreme Court Decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) that presumes a worker is an employee unless the hiring entity satisfies a three-factor test (“ABC” Test), and exempts from the test certain professions and business to business relationships.
Under the ABC Test, which has been California law since April 2018 due to the Supreme Court’s Decision, a person is considered an employee (rather than an independent contractor) UNLESS the hiring entity demonstrates that all of the following conditions are met (the ABC Test):
A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
B) The person performs work that is outside the usual course of the hiring entity’s business.
C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
This highly controversial bill, effectively requires the vast majority of workers to be employees rather than independent contractors. As the bill moved forward, there were a number of exemptions granted in the bill, including for a number of professional categories, including physicians, podiatrists, chiropractors, veterinarians, lawyers, architects, engineers, private investigators, accountants, securities brokers, real estate licensees, repossessors, direct salespersons, graphic artists, cosmetologists, and a host of other trades and professions. However the bill did NOT exempt many in the healthcare professions – physician assistants, nurse practitioners, clinical counselors, physical therapists, speech pathologists, and many professions and trades, including painters, plumbers, land surveyors, landscape architects, and many others — including geologists and geophysicists.
AEG is pushing for exemptions for geologists. There is talk that there will be legislation to exempt a number of people, and there is great hope that geologists will be included in the exempted groups.
Several bills have already been introduced on this issue, but it is very early in the process. AEG will monitor this issue closely and seek to include geologists in the exemption group. It would be good to get feedback from you regarding the work structure that AEG members are involved in. While many are likely employees (receive a W-2), there are likely those who serve as independent contractors (receive a 1099). We would like to better understand the impact this change would have on the profession.
January 21, 2020
The California Board for Professional Engineers, Land Surveyors, and Geologists is proposing to amend Title 16, California Code of Regulations sections 407, 410, and 3005 and to adopt Title 16, California Code of Regulations section 3010 relating to fees and duplicate certificates. Links to the additional 15-day Notice and its attachments, the Initial Statement of Reasons and its attachments, and the Proposed Regulatory Text are available on the page linked below.
https://www.bpelsg.ca.gov/about_us/rulemaking.shtml
January 6, 2020
The Board for Professional Engineers, Land Surveyors, and Geologists has just released on its website updated 2020 versions of the Professional Engineers Act, the Professional Land Surveyors’ Act, the Board Rules, the Geologist & Geophysicist Act, and the Regulations Relating to the Practices of Geology and Geophysics. Please click here to find all the links to the updated laws and regulations, including annotated versions which show the changes that were made in 2019, for your profession.
October 18, 2019
Some more notable bills that were signed are:
AB 5 (Gonzalez) The bill codifies the April 2018 California Supreme Court ruling in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) that presumes a worker is an employee unless a hiring entity satisfies a three-factor test, and exempts from the test certain professions and business to business relationships. The bill exempted engineers and architects, but did not exempt geologists or geophysicists. All parties involved in the bill have said that there will be clean-up legislation in 2020. I have reached out to the Senate Labor Committee Consultant who worked on the bill to request a meeting to discuss exemptions for our licensees.
AB 1522 (Low) Board for Professional Engineers, Land Surveyors, and Geologists: licensees. The bill extends BPELSG’s sunset to January 1, 2024. The bill also authorizes the Board, to take enforcement action upon a geologist-in-training for violations; makes it a misdemeanor for an unlicensed person to use the title “professional geologist”, “registered geophysicist”, “professional geophysicist” or title of any licensed certified specialty; makes numerous technical and clarifying. AEG SUPPORTED this bill.
SB 339 (Jones R) Engineers, land surveyors, and geologists and geophysicists: nondisclosure agreements: reporting. The bill provides that a licensee under the BPELSG, including geologists and geophysicists, who is retained as an expert witness enters into a nondisclosure agreement, that agreement shall not be construed to prevent the licensee from reporting a potential violation of the Professional Engineers Act, or of the Professional Land Surveyors’ Act, as applicable to the licensee, to the board. The specifies that those provisions in each of the acts would not be construed to be, or act as, a waiver of any applicable attorney-client or attorney work product privileges.
The Governor Vetoed the following bills:
AB 638 (Gray D) Department of Water Resources: water storage: climate change impacts. The Governor’s veto message said the issue should be evaluated in the context of the whole water portfolio and take a holistic approach to securing California’s water future.
SB 487 (Caballero D) Department of Water Resources: aerial snow survey. The Governor said the issue should be considered in a wider water resources context, and that because of the large fiscal the issue should be considered in the Budget Process.
September 30, 2019
The Governor has until midnight October 13 to sign or veto the bills passed in this legislative Session.
Bills which were not passed by the Legislature before the 9/13 deadline are now 2-Year Bills, and cannot be acted upon until after the Legislature reconvenes on January 6, 2020, for the second year of the 2019-2020 Legislative Session.
Governor Newsom signed AB 5 (Lorena Gonzalez) dealing with independent contractors very quickly on September 18. He had previously expressed his support for the bill in a Labor Day Editorial.
Specifically the bill codifies the California Supreme Court Decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) that presumes a worker is an employee unless a hiring entity satisfies a three-factor test (“ABC” Test), and exempts from the test a number of professions and business to business relationships. There is tremendous variation in those professions who were and who were not carved out of the bill. Physicians, podiatrists, chiropractors, veterinarians, lawyers, architects, engineers, private investigators, accountants, securities brokers, real estate licensees, repossessors, direct salespersons, graphic artists, cosmetologists, and a host of other trades and professions were carved out. However the bill did NOT exempt many professions including geologists and geophysicists as well as land surveyors, landscape architects and many professions and trades, including painters, plumbers and others. Many in the healthcare professions – physician assistants, nurse practitioners, clinical counselors, physical therapists, speech pathologists, occupational therapists, and marriage and family therapists were not exempted. A number of members of the Legislature have indicated that there will be more cleanup legislation next year. There will likely be some lawsuits, and the ridesharaing companies (Uber and Lyft) have talked about a ballot initiative to overturn the law/ruling. There will be much more on this issue.
Other Legislation of note:
1522 (Low) Board for Professional Engineers, Land Surveyors, and Geologists: licensees.
Extends the BPELSG Sunset date to January 1, 2024; authorizes the Board, to take enforcement action upon a geologist-in-training for violations; makes it a misdemeanor for an unlicensed person to use the title “professional geologist”, “registered geophysicist”, “professional geophysicist” or title of any licensed certified specialty; makes numerous technical and clarifying. AEG has a SUPPORT position on the bill.
Status: Enrolled to the Governor for signature.
SB 339 (Jones R) Engineers, land surveyors, and geologists and geophysicists: nondisclosure agreements: reporting. This bill was amended to include geologists and geophysicists. It specifies that if a licensee under the Geologist and Geophysics Act who is retained as an expert witness enters into a nondisclosure agreement, that agreement shall not be construed to prevent the licensee from reporting a potential violation of the act to the BPELSG. The bill includes both engineers and land surveyors, as well as geologists and geophysicists.
This bill has been signed by the Governor and will take effect January 1, 2020.
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June 5, 2019:
Friday, May 31 was the deadline for bills to pass out of the house in which they were introduced – termed the House of Origin Deadline. Bills which do not meet that deadline become 2-Year Bills, and cannot be taken up until 2020.
Only one bill being tracked did not meet that deadline: AB 626 (Quirk-Silva) relating to conflicts of interests for design professionals (including geologists) involving public contracts. This bill was placed on the Assembly’s Inactive file at the request of the Author.
Please take a look at the following four bills. AEG may wish to weigh in on the policies in these bills.
AB 1522 (Assembly Committee on Business & Professions) This is the Sunset extension for the BPELGS. Currently the bill simply extends the sunset date until January 1, 2024. This is the bill in which changes coming out of the Sunset Review of the Board would be made. The amendments have not been made yet, but must be made soon. My discussions with Committee staff do not indicate that there will be any significant changes related to geology practice. There is no indication that there will be any threats to geology or geophysics licensure.
SB 556 (Pan) Professional Land Surveyors and Engineers. Revises the land surveyor and civil engineering practices. I would suggest that AEG review the changes for any impact to the geologists scope of practice. Some of the revisions refer to works below the surface of the earth. In particular, the bill defines “remote sensing” under the practice of engineering and land surveying to mean “the detecting, collection, processing and analysis of physical objects regarding the location or dimensions of a location or object, or otherwise using various acquisition methods intended to or resulting in the determination of the configuration or contour of the earth’s surface or the position of fixed objects above, on or below the surface of the earth. You may wish to review to see if there is any impact of concern to AEG’s interests.
AB 613 (Low) Professions and vocations: regulatory fees. This bill would allow DCA boards, including BPELSG, to increase their fees every 4 years based on the increase in the California Consumer Price Index. Proposed fee increases would be reviewed and approved by the Director or the Department of Consumer Affairs. This would allow a board to increase fees without pursuing legislation (legislation typically sets maximum fees that a board can charge) or without a regulatory change (the specific fees are typically set by regulations adopted by the board). This decreases input and transparency by the public and by the professions which pay the fees. This was brought to my attention by the California Medical Association (CMA) who is opposing the bill. AEG may wish to review this bill and consider weighing in on the policy.
SB 339 (Jones R) Engineers, land surveyors, and geologists and geophysicists: nondisclosure agreements: reporting. This bill was amended on June 4 to include geologists and geophysicists. It specifies that if a licensee (including a geologists or geophysicists) who is retained as an expert witness enters into a nondisclosure agreement, that agreement shall not be construed to prevent the licensee from reporting a potential violation of the act to the BPELSG.
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