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SB406: Job Killer Threatens Us With More Litigation and Costs for Small Business

September 5, 2015 By Loren Kaye 4 Comments

A workplace is most successful when an employer will want to do what it takes to keep a worker happy and productive. This includes accommodating his or her “work-life balance,” within the constraints of operating the business.

But as usual, California has gone a different direction.

Workers here enjoy the most generous mandatory leave policies of anywhere in the nation. The leave programs currently available include:

Family Medical and Parental Leave, applicable to employers of more than 50 workers, provides up to 12-weeks protected leave for employee’s or immediate family member’s medical condition or to bond with a newborn.
Pregnancy Disability Leave, applicable to employers of more than five workers, provides up to 16 weeks protected leave (in addition to the 12 weeks, above).
School Activities Leave, applicable to employers of more than 25 workers, provides up to 40 hours annually to attend school-related activities of a child.
Kin Care, applicable to all employers, allows employees to use up to half of paid time off for family members’ illnesses.
Paid Sick Leave, applicable to all employers, provides at least three sick days a year for even part-time employees and includes illnesses to their family members.

Only seven states, including California, have their own separate family leave laws. Only three states, including California, have a paid sick leave mandate. Only nine states, including California, have protected school/parental leave.

California is the only state with all of these protected or mandatory leave laws.

Indeed, California has mandated their notion of what constitutes appropriate employer behavior at every turn.

Or … almost every turn.

For wherever there’s a blank spot on the missing-mandate map, the California Legislature is there to fill it.

Last year, the Legislature mandated paid sick leave on every business in the state. This year the Legislature is considering a bill to apply the protected family and medical leave mandate to small businesses with just 25 workers, and expand the definition of family to include grandkids and grandparents, siblings and in-laws.

The upshot would be to require employers, including pretty small businesses, to provide up to 12 weeks of leave and, in some cases for larger businesses, up to 24 weeks (because the extended application of the leave is inconsistent with federal law). An employer must agree to the leave no matter the circumstances of the business. Even if other employees are also on extended leave, a worker’s request cannot be turned down.

These leave programs, like other employee benefits, can have salutary effects on the worker and the workplace. Permitting an employee to stabilize his or her family’s health can be vital for peace of mind and workplace productivity. However providing a mandatory entitlement to such extensive leave places too much burden on employers, a likely reason most other states have drawn the line at 12 weeks for larger employers.

And if a costly mandate on employers isn’t enough, the proposal provides another opportunity for trial lawyers to hold up complying businesses for damages and attorneys fees.

Loren Kaye is president of the California Foundation for Commerce and Education

Originally published by Fox and Hounds Daily

Filed Under: Top Stories Tagged With: Employer mandates, Employers, regulations, SB406, Small business

FDA Regulations Could Wipe Out 99 Percent Of E-Cigarette Industry

August 15, 2015 By Guy Bentley 2 Comments

The e-cigarette industry could be all but wiped out thanks to regulations coming down the pipeline from the Food and Drug Administration.

Most damaging of all, e-cigarette makers will have to retroactively submit marketing applications for all their products, with the costs running into the millions.

Manufacturers of e-cigarettes could also be banned from advertising the reduced risk from substituting smoking for vaping unless they can convince the FDA otherwise.

In 2009, e-cigarettes came under the purview of the FDA and may face many of the restrictions placed on the tobacco industry, such as issuing health warnings and stopping sales to minors.

The e-cig industry is still relatively young, with the first e-cigarette invented in China in 2007. Despite there being close to 20 million Americans regularly using e-cigarettes, the FDA’s regulations could bankrupt the vast majority of producers.

Speaking to The Hill, Jan Verleur, co-founder and CEO of VMR Products, said as much as 99 percent of the industry could be wiped out. “This makes it so any product released after the grandfather date would require premarket approval,” said Verleur.

He added that ”the process could cost us half a million to million dollars,” per individual product. With more than 500 e-cigarette products, VMR Products would have to pay five times the company’s revenue.

His comments echo those of the president of the American Vaping Association Greg Conley who told the L.A. Times Monday that 99 percent of the small businesses in the industry could close their doors.

There is as of yet no fixed date for when the rules come into force. The FDA has said it will give companies two years to submit their applications and they will be able to sell the products under review during that time.

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Originally published by the Daily Caller News Foundation

Filed Under: Top Stories Tagged With: Daily Caller, FDA, Guy Bentley, regulations, Vaping

CA Congressmen Urge Federal Reform of Marijuana Laws

August 10, 2015 By James Poulos 1 Comment

The federal government’s understanding of its own marijuana regulations are willfully “tortuous” and “an obvious stretch,” warned a bipartisan duo of California Congressmen in a sternly-worded letter to the Department of Justice.

An abuse of power

In the letter, obtained by the Huffington Post, Reps. Sam Farr, D-Calif., and Dana Rohrabacher, R-Calif., requested that DOJ Inspector General Michael Horowitz open an internal investigation into the department’s continued prosecutions of marijuana dispensaries, against what they said was the clear letter and intent of the law.

In its Appropriations Act for 2015, Congress had passed a provision introduced by Rohrabacher and Farr designed and intended to ward off federal interference with marijuana-related businesses operating legally under state law.

“We, the authors of the language, and our many colleagues — including those who opposed the amendment — laid on the record repeatedly that the intent and the language of the provision was to stop DOJ from interacting with anyone legitimately doing business in medical marijuana in accordance with state law,” wrote the Congressmen.

Signed into law by president Obama, the amendment received a second vote of approval from Representatives this summer. “As the marijuana provision is part of an annual funding bill that will expire,” noted the Huffington Post, “the lawmakers introduced an identical version again in June, which was reauthorized by the House of Representatives.”

In April, Farr and Rohrabacher had also demanded that Attorney General Eric Holder “stop prosecution of state-authorized medical marijuana dispensaries” in observance of the same provision, as the Orange County Register reported.

Federal legalese

But the Department of Justice chose to interpret the law in the most hostile manner possible, the lawmakers suggested, citing an April statement by DOJ spokesman Patrick Rodenbush. As the Los Angeles Times reported, Rodenbush said Rohrabacher-Farr, as the appropriations amendment was known, didn’t apply to prosecutions directed at persons or groups:

Rather, he said, it stops the department from “impeding the ability of states to carry out their medical marijuana laws,” contrary to some claims from people being prosecuted that the amendment blocks such prosecutions.

As the Times then observed, this “narrow interpretation of the law” had particularly strong implications in the San Francisco Bay Area, “where the Justice Department has initiated forfeiture proceedings against three medical marijuana dispensaries it considers to be in violation of federal law.”

Outgoing U.S. Attorney for Northern California Melinda Haag had become notorious among pro-pot advocates and businesspeople, joining “the three other regional U.S. attorneys in California in cracking down on medical marijuana dispensaries perceived to be large-scale commercial enterprises,” as Pleasanton Weekly recounted. One dispensary facing the brunt of Haag’s crusade, Harborside Health Center, met the news of her departure with what executive director Steve DeAngelo called “great relief and great satisfaction.”

“In Ms. Haag’s parting statement she said she felt her office had ‘accomplished most of our goals’ during her tenure,” DeAngelo said in a statement. “The one goal she most assuredly has not accomplished is closing down Harborside Health Center. We hope her successor will have a more finely tuned understanding of compassion and justice than Ms. Haag has displayed, and allow Harborside to focus on serving our patients instead of battling a court case that should never have been started.”

Conflicting actions

Although the Department of Justice could opt to ignore the mismatch between its conduct and the law, the law itself would hold them to account for doing so. At stake is the applicability of the Anti-Deficiency Act, as Farr and Rohrabacher argued; as Reason indicated, that law “makes it a crime to use federal money for purposes that are not approved by Congress.”

Originally published by CalWatchdog.com

Filed Under: Top Stories Tagged With: Dana Rohrabacher, DOJ, Marijuana, Pot, regulations, Sam Farr

VIDEO: James Lacy — Why CA Gas Prices Remain Sky-High

August 7, 2015 By Videos Leave a Comment

James Lacy, author of Taxifornia, explains to Fox Business’ Stuart Varney how CA’s over-the-top environmental regulations cause the state’s gas prices to soar above the rest of the nation.

Filed Under: Top Stories, Videos Tagged With: environment, Environmentalists, Gas, James Lacy, regulations, Stuart Varney

California’s Uber Hunt

July 28, 2015 By Tim Cavanaugh 2 Comments

The way things are going, Uber may soon face a court challenge in California over its failure to use an umlaut. The popular ridesharing startup has already been hit by an administrative law judge’s recommendation that the company pay $7.3 million in damages and suspend operation in the state. At issue: Uber’s alleged failure to provide the California Public Utilities Commission with internal data about how many customers with service animals or wheelchairs Uber drivers serve, along with time, location and fare data.

This decision came just a month after the California Labor Commission redefined the app-based ride-hailing service’s business model. In that case, San Francisco Uber driver Barbara Ann Berwick demanded that the company reimburse $4,000 worth of expenses. The commission ruled that Berwick, a transsexual who previously operated a phone sex business — Linda’s Lip Service — was a full-time-equivalent employee during four months of sporadic driving for Uber. (Berwick, now a financial consultant, expressed disappointment with the money an Uber driver makes.) The decision directly threatens Uber’s business model, in which drivers sign up as independent contractors with a minimum of the fuss and paperwork associated with modern hiring, choose their own hours, and are clearly remunerated on a piecework basis.

Last week, a U.S. district judge in San Francisco allowed a group of cab companies to proceed with a false-advertising lawsuit against Uber. The same judge also greenlit a suit against Uber claiming that it spammed potential drivers with recruitment text messages. That suit was dismissed when electronic records showed that one of the plaintiffs had begun pursuing the company herself.

Notably, complaints about Uber typically aren’t coming from customers, and even among the firm’s drivers, crusades like Berwick’s are rare. In fact, what’s striking about the various campaigns against ride-sharing is their reliance on paperwork and credentialing instead of outcomes. The CPUC, for example, doesn’t assert that Uber is harming actual handicapped people, only that the company has failed to produce paperwork that proves the absence of harm. Similarly, the cab companies’ speech-related lawsuit — which focuses on safety claims made in Uber ads — does not claim that traditional taxis are safer than Uber rides. The plaintiffs assert instead that cab drivers are subjected to more paperwork than Uber drivers.

The anti-Uber campaign’s reluctance to assess outcomes is understandable, given the public’s strong revealed preference for the company. Interest groups can complain, but drivers and customers continue to vote for Uber with their time and money. In a free country or a sane state, a clear market decision in favor of a business would be the end of the discussion. But Uber is increasingly under pressure to furnish evidence that its model works in theory as well as in practice.

The company recently commissioned Los Angeles-based BOTEC Analysis to measure service in low-income neighborhoods — a market in which anecdotal evidence already suggests that Uber’s influence has been positive. BOTEC compared UberX with taxi services in Van Nuys as well as Central and East Los Angeles. The median wait time for an UberX ride in L.A. neighborhoods was five minutes and 52 seconds; for a taxi ride, it was 14 minutes and 33 seconds. The maximum recorded wait time for UberX was 20 minutes; for a cab, 57 minutes. Despite Uber’s widely maligned practice of “surge pricing” — a concession to the law of supply and demand that is for some reason considered outrageous — UberX also soundly beat traditional cabs on price, with a median cost per ride of $6.28, versus $15 for taxis. Surge pricing didn’t even produce a higher maximum price. UberX’s max cost per ride was $11.68, against $22 for cabs.

BOTEC is led by UCLA public policy professor Mark Kleiman, a thoroughly un-libertarian, good-government figure. Nevertheless, Uber opponents have dinged the study as free-market propaganda from the Uber central command. SHOULD YOU TRUST UBER’S BIG NEW UBER VS. CABS STUDY? New York asks. (Answer: a definite maybe.) Meantime, L.A. Weekly wonders, “Is Uber really being straight-up about its commitment to serve folks other than young, white professionals and party people?” But defenders of the taxi status quo face an even bigger hurdle: Uber’s very existence is an advertisement for the free market. It’s an obviously less-regulated initiative that has produced measurable, positive outcomes across a wide spectrum. No wonder people hate it so much.

Tim Cavanaugh (@bigtimcavanaugh) is a journalist and screenwriter who has covered California since the 1990s.

Originally published by City Journal online

Filed Under: Top Stories Tagged With: City Journal, CPUC, Los Angeles, regulations, Taxi, Uber, UCLA

California’s Drought is a Communications and Policy Issue

June 8, 2015 By Patrick George 7 Comments

Photo Credit: The International Rice Research Institute

In the face of California’s crippling drought, public agencies will have to employ wide-ranging strategies and tactics to educate, motivate, enforce, and reinforce messages about drastic water cutbacks.

Their success or failure hinges on how they communicate to diverse audiences about managing water, a precious natural resource. In their dilemma, there are also communications lessons.

On Tuesday, California’s State Water Resources Board said residents used 13.5 percent less water against an April 2013 benchmark. This is a significant improvement over previous months, but it also shows a major gap in achieving the mandatory average 25 percent reduction in urban water use ordered by California Governor Jerry Brown.

The drought has generated thousands of media stories and an unending stream of tweets and posts and sparked intense debate on what needs to be done. Water agencies, city managers, and other local elected officials will have to make major decisions, large and small, about how to urge residents to use much less, and conserve much more, water.

In this highly charged atmosphere, carefully developed communication strategies will be essential to get the public informed and accepting of the solutions required. Organizations will have to engage from the top down at the state level to coordinate messages and from the bottom up at the local level to make relevant, persuasive arguments.

State-level authorities must consistently communicate the need for cooperation through a coordinated, systematic and statewide approach. Local water interests must develop their own communication programs that appeal to the residents and water users in the jurisdictions. Authorities overseeing water reduction must speak with culturally appropriate voices to residents from diverse backgrounds. Finally, local water interests will succeed from a grassroots approach that aims to be informative rather than punitive.

Eventually the rain and snow will fall. California will experience relief from this prolonged and painful drought. In the meantime, the drought is all but certain to result in future water policy, lifestyle, and societal changes. To what extent California’s lawmakers rewrite future rules hinges on how the state’s water users change behavior and habits now.

As California has done on other issues such as energy, healthcare, and education, the state has the opportunity to model a progressive problem-solving strategy. Impactful communications, thoughtfully implemented, will play a critical role in the success of that strategy. Lessons abound for PR professionals everywhere.

Originally published by Fox and Hounds Daily

Patrick George is director at KP Public Affairs, a PR and lobbying firm based in California

Filed Under: Top Stories Tagged With: Drought, Jerry Brown, Mandates, regulations, Water

Public Outrage Over Uneven Water Cutback Mandates

June 1, 2015 By James Poulos 2 Comments

A cascade of new water regulations has brought the drought home to millions of residents across California, cutting into their indoor and outdoor use and, often, prompting an outcry. But the impact of the regulations, handed down at different levels of government, has become significantly uneven, sowing the seeds of further controversy as the cutbacks continue with no end in sight.

Transforming landscaping

Following on Gov. Jerry Brown’s executive order mandating swift and sustained reductions in water usage, California regulators brought yet another type of consumption to heel. “The state Building Standards Commission voted to change development rules to reduce the demand for water,” the Associated Press observed. “Developers can meet the rules by planting shrubs and bushes instead of grass or installing slow-trickling valves instead of traditional sprinklers.”

Regulators expected the decision to bring significant savings — about 20 percent less across all California lawns. “Outdoor irrigation,” noted the AP, “accounts for roughly half of residential water use.” By the middle of June, residences, workplaces, schools and hospitals will all be subjected to the new strictures.

Riparian regulations

The curbs on thirsty lawns followed fast on sharp new demands imposed on historic farms by the State Water Resources Control Board. In an unprecedented move, a group of farmers recently offered to reduce their consumption by 25 percent relative to 2013 levels. Now, regulators have accepted the plan.

“The action applies only to so-called riparian rights holders, landowners whose property has direct access to a river or stream,”reported the Los Angeles Times. “By volunteering the cuts, Delta farmers avoid the risk of being hit with even larger cutbacks mandated by state water regulators.” According to the Times, the move brought one especially precious form of relief, taking away “the threat of lengthy and divisive litigation in a time of crisis.”

But not all farmers have accepted the new status quo. Some, reported the Contra Costa Times, hired attorneys “to assert that the state is defying statutes that honor their seniority. The water board’s order exceeds the scope of the state’s authority, the lawyers contend.” Farmers complained that they were pushed to offer a deal in order to avoid Draconian, potentially devastating penalties. And the state’s order that rights claimants show proof of property ownership has touched off an angry scramble for documentation.

“To defend their place in line, senior rights holders have rushed their ancient documents to analysts in the Division of Water Rights in Sacramento,” according to the Contra Costa Times. “Who, where and what rights will be curtailed in coming weeks remains to be determined, water officials say. Cutoffs will be based on flows in the watershed — and how long rights have been held.”

Local outrage

Meanwhile, in areas where cutbacks have already been adopted, some water agencies have moved ahead with even sharper penalties for current levels of use. San Jose Water, a private company supplying much of Silicon Valley with drinking water, followed the lead of nearby Santa Cruz and mandated steep new reductions in residential water consumption. As the San Jose Mercury News reported, “the company announced it would give all single-family residences — defined as any home that has its own water meter — monthly water allocations requiring a 30 percent reduction from 2013 levels. Apartments and most businesses won’t receive them.”

One detail in particular provoked a public outcry: “The 30 percent cut isn’t based on each home’s individual use. Instead, it’s calculated on the month-by-month average of all residential users in San Jose Water’s service area.” Company officials endured an hours-long hearing that drew some 350 dismayed locals, but remained — like officials across the state — largely unmoved. “It’s not like the spigot is going to go dry,” said Palle Jensen, senior vice president for regulatory affairs, according to the Mercury News. “You can still use water. But you will have to decide how.”

Originally published by CalWatchdog.com

Filed Under: Top Stories Tagged With: Agriculture, Drought, regulations, Water

Californians Pay To Have Their Lawns Spray Painted Green

May 22, 2015 By Michael Bastasch 1 Comment

Gov. Jerry Brown is cracking down on how much water Californian’s use in their daily lives, and that means parched lawns are turning brown as the state heads into its fourth year of drought.

In steps some savvy entrepreneurs who have a solution to water restrictions: spray paint your lawn green, don’t waste water on it. Lawn painting companies, like Xtreme Green Grass, are seeing business boom.

“I probably have about seven appointments scheduled in just the next week or so.” David Bartlett, the company’s owner, told KXTV-Sacramento.

Bartlett’s company sprays a non-toxic green dye across the brown areas of your yard, making look as if it’s been freshly watered. The service takes about an hour and costs 25 cents per square foot.

That may seem like a lot, but Bartlett says it’s way cheaper than making your lawn “drought-friendly” by bringing in new plant material. Doing that can cost homeowners several thousand dollars.

Most of California is going through an “exceptional” drought period, according to monitors, and some 37 million residents are being impacted by less-than-normal rainfall and snowpack. The Golden State saw record low snowpack this year.

In response, Gov. Brown mandated that statewide water use shrink by 25 percent, pushing for fines up to $10,000 for those who use too much water. Republicans have blamed federal and state policymakers for flushing lots of water out to sea every year because of the delta smelt — a small, endangered fish.

“For the governor to come out and say, ‘Look, we all have to now take shorter showers and kill our front lawns and stop washing our cars,’ that is not the answer,” said Travis Allen, Republican State Assembly member. “Forty percent of our water is going into the Pacific Ocean. The answer is, let’s stop sending that water into the Pacific, and let’s send it into our cities, into our homes.”

“Sacramento and Washington have chosen to put the well-being of fish above the well-being of people by refusing to capture millions of acre-feet of water during wet years for use during dry years,” U.S. Rep. Kevin McCarthy, a Republican who represents the Bakersfield area. “These policies imposed on us now, and during wet seasons of the past, are leaving our families, businesses, communities and state high and dry.”