10 minute read
Again and Again
CAPITOL INSIDER
Biting the Hand That Feeds You… Again and Again
KELLY ASH
VP, GOVERNMENT RELATIONS CALIFORNIA GROCERS ASSOCIATION
It’s important California’s elected leaders remember both workers and businesses are essential as the state unwinds its pandemic strategy.
Since the beginning of the pandemic in early 2020, grocers have never stopped serving customers, keeping communities fed, and employing Californians. So, what happens when many of the regulations, legislation, and executive and health orders start to be rescinded even as others remain in effect or are reinstated? Our grocery community is in the middle of finding out. Both the State Legislature and Gov. Gavin Newsom have reacted to the omicron variant spike with policy and legislative actions that give businesses a serious feeling of whiplash. With one hand, the Governor and legislative leaders passed another round of supplemental paid sick leave (SPSL) – the third iteration mandated upon the grocery industry since the beginning of the pandemic. On the other hand, Newsom decided that positive cases were manageable enough to lift the statewide indoor mask mandate, a move that has trickled down to the local level.
Not seeing the logic? You’re not alone. Why would the state’s elected leaders insist on pushing through emergency, health-andsafety based legislation to reinstate SPSL, yet lift one of the very safety mechanisms they have been touting for almost two years? Governor Newsom stated at a press conference the day he signed the bill, “That’s why sick leave is foundational – keeping people healthy, keeping patrons safe is so important.” Isn’t that why California required individuals, regardless of vaccination status, to wear masks for the last two months? If there is a legitimate need for additional weeks of supplemental leave, then why take away one of the ways to support businesses in keeping their employees safe from the public? With the idea of softening the blow, the Governor, legislative leaders, and CalChamber pointed towards a $6 billion tax relief packaged centered on grants and other benefits. Specifically, the package restored research and development tax credits, as well as the net operating loss deduction one year earlier than expected. It also expanded the relief grant program for business applicants that had been previously waitlisted for grants. The problem is that the grants are geared toward specific businesses that were shut down during the pandemic, such as restaurants, and the plan generally misses the opportunity to support essential businesses that have been up and running throughout the pandemic. Unlike the rest of the business community in California, the grocery industry came to the table in March and April 2020 to work on solutions to keep workers safe and distanced when COVID-19 was especially novel and uncertainty about COVID’s characteristics high. This makes the neglect for essential businesses’ needs, and the continued effort to saddle such businesses with contradictory mandates a point of frustration. The Governor and the Legislature are moving mountains to support families and workers with their policies, but the grocery community has undergone a similar feat while playing whack-a-mole against inflation, severe supply chain challenges, and intermittent and unpredictable surges in consumer demand. This is why California needs to do a better job balancing its support for workers with support for the very businesses that have proven to be the lynchpin of communities during the pandemic. During the last two years we experienced firsthand how interdependent the world is. As the state moves from its pandemic to endemic strategy, it’s vital our elected leaders remember what’s truly essential. ■
NEED TO KNOW:
NEW LAWS FOR 2022
WHILE THE PANDEMIC HAS REDUCED THE AMOUNT OF NEW LAWS PASSED BY THE CALIFORNIA STATE LEGISLATURE, THERE ARE STILL A NUMBER OF LANDMARK LAWS TO COMPLY WITH IN 2022.
By Louie Brown, Attorney at Law, Kahn, Soares & Conway, LLP
January 1 kicks off a new year and brings with it a number of new laws. In my first article of 2022, I will dig into some of those new laws, describe what they did and what the future implications are for the grocery industry.
But before we get into the new laws, let’s cover a couple of older laws with extended implementation into 2022.
First is Senate Bill 3 (SB 3) which was signed into law in 2016 and started the path to a $15 minimum wage. In January 2022, the minimum wage hit the target of $15 for employers with 26 or more employees. For employers with 25 or fewer employees, the minimum wage is $14 per hour and will increase to $15 per hour on January 1, 2023.
However, just because we hit the California goal of a $15 minimum wage this year does not mean the issue goes away. An initiative was recently cleared for signature gathering that would increase the minimum wage to $18 per hour with an annual cost of living adjustment (COLA). If the requisite number of signatures is collected, this initiative could be on the November ballot.
In 2016, another law passed that indirectly impacted the grocery industry. Assembly Bill 1066 (AB 1066) by Assemblymember Gonzalez eliminated the 10-hour workday in production agriculture. As of January 1, agricultural employers with 26 or more employees are required to pay overtime after eight hours per day or 40 hours per week.
The implementation schedule for agricultural employers with 25 or fewer employees does not reach the eight-hour day until 2025. The impact of this change remains to be seen, but increased labor costs downstream could impact the cost of fruits and vegetables sold in retail.
The last bill on our list of past legislation is Senate Bill 1383 (SB 1382), also passed in 2016. This bill set methane emissions reduction targets for California in a statewide effort to reduce emissions of short-lived climate pollutants (SLCP). SB 1383 establishes statewide targets to reduce the amount of organic waste disposed of in landfills (50 percent reduction by 2020 and 75 percent by 2025). It also sets a goal to rescue at least 20 percent of currently disposed edible food by 2025 and redirect that food to people in need.
Beginning in 2022, local governments are required to start implementing practices to reduce the organic waste diverted to landfills. Grocers and other retail establishments are considered organic waste generators and will be required to follow prescribed collection and separation practices.
January 14, 2022 was also the effective date of the new CalOSHA Covid Emergency Temporary Standard (ETS) – the regulation that is seemingly no longer an emergency and definitely isn’t temporary. The changes, effective January 14, will remain in place until late 2022, when CalOSHA will determine whether to let the standard lapse or vote in a permanent regulation. With the Governor expected to release the strategy for transitioning from a pandemic to endemic status soon, it is still too early to predict what route CalOSHA will take.
Now let’s focus on a few of the laws passed in 2021 that took effect on January 1, 2022.
Assembly Bill 1311 (AB 1311) by Assemblymember Wood makes a number of minor changes to the State’s “Bottle Bill” program. No doubt this bill was introduced to address some of the specific issues faced by dealers and recyclers in the Assemblymember’s north coast district but will also provide some meaningful relief in other areas of the state. The key changes made by AB 1311 are:
n Provides alternative schedules for certified recycling centers, including by appointment.
n Recognizes natural disasters and
States of Emergency as criteria for flexible hours of operation.
n Allows a bag drop recycling center to pay refund value within a reasonable time, not to exceed three business days, and it may be made electronically.
n Exempts dealers from daily load limit.
Senate Bill 343 (SB 343) by Senator Allen may have been the most significant and underrated environmental bill passed in 2021. Better known as the “chasing arrows” bill, SB 343 seeks to create truth in environmental labeling. The bill states:
It is the public policy of the State that claims related to the recyclability of a product or packaging be truthful and that consumers deserve accurate and useful information related to how to properly handle the end of life of a product or packaging. A product/packaging that displays a chasing arrows symbol, statements, or directions, is deemed to be a deceptive or misleading claim unless the product or packaging is considered recyclable and is of a material type and form that routinely becomes feedstock used in the production of new products or packaging.
iStock
The following terms will be prohibited on packaging unless certain requirements are met: Ecologically friendly, earth friendly, environmentally friendly, ecologically sound, environmentally sound, environmentally safe, ecologically safe, environmentally lite, and green product. For a product to be deemed recyclable, it must achieve a recycling rate of 75 percent if included in a curbside collection program. If it is not included in a curbside program, the product must achieve a recycling rate of 60 percent prior to 2030 and 75 percent after 2030. The California Recycling Commission will make the determination of recyclability based on data generated by Cal Recycle.
Since the passage of SB 343, concerns from reusable plastic bag manufacturers and thermoform clamshell producers have grown. As of today, neither are included in most curbside programs and face significant challenges to reach the recycling targets in the legislation in order to be deemed recyclable and utilize the chasing arrows.
We should expect considerable pressure from the manufacturers of these products over the next few years to implement instore take back programs as a means of increasing their recycling rates.
Senate Bill 606 (SB 606) by Senator Gonzalez was perhaps the most significant labor bill passed in 2021. It creates a rebuttable presumption that a violation committed by an employer with multiple worksites is enterprise-wide if the employer has a written policy or procedure that violates these provisions, or the division has evidence of a pattern or practice of the same violation committed by that employer involving more than one of the employer’s worksites. The bill also creates a new definition of egregious violation which carries with it significant penalties.
THE BILL ALSO CREATES A NEW DEFINITION OF EGREGIOUS VIOLATION WHICH CARRIES WITH IT SIGNIFICANT PENALTIES. THE 2022 LEGISLATIVE SESSION IS OFF TO A SLOW START, BUT IT IS NOT EXPECTED TO STAY THIS WAY FOR LONG.
A violation is an egregious violation if one or more of the following is true about the employer or the willful violations committed by it:
n Intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the violation.
n Violation resulted in death, workplace catastrophe, or large number of injuries or illnesses. n Violation resulted in persistently high rates of injury or illness.
n Employer has extensive history of past violations.
n Employer has intentionally disregarded health and safety responsibilities.
n Employer’s conduct amounts to bad faith.
n Employer has committed a large number of violations that undermines health and safety of the workplace.
On a positive note, violations of SB 606 cannot be prosecuted under the Private Attorney Generals Act (PAGA).
Without a doubt COVID-19 had an impact on the number of bills enacted in 2021 as there are less new laws than usual. A significant budget surplus combined with the transition from pandemic to endemic practices will likely result in an active legislative session, which means next year’s new bills column could be much longer and likely more upsetting. Here’s to a successful 2022! ■
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