AB5 and CLSA

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Thu Jan 09, 2020 2:08 pm

Excellent! How does that happen? I have sent suggestions to the Executive Board but nothing happens and no one replies.

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TTaylor
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Re: AB5 and CLSA

Postby TTaylor » Thu Jan 09, 2020 2:33 pm

When I was the chair of the CLSA Leg Committee we had a very good dedicated group of people working diligently on behalf of legislative issues that affected our profession. We had the benefit of Ralph Simoni and his legislative connections to help get things through that helped out profession. And we were successful on a number of fronts.

Additionally, at the time Celsoc surveyors were adversarial and it required a lot of effort to get us on the same page.

Now Celsoc is ACEC.

Personally I think that working with the surveyors in ACEC providing a united front is a good alliance to provide a voice to start moving forward.

Also, we need an advocate that is connected to the legislature like Ralph was and not just people that show up to CLSA meetings to give an "Update" and not much else. Or so it appears.

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Thu Jan 09, 2020 3:07 pm

No kidding! Years ago when I was on the legislative committee with Paul Cuomo, we worked every single week and met frequently to advance the interests of the profession. In fact I went to Sacramento a couple of times to lobby the legislators.

It was a lot of work but we were very productive. Take a look at the work we did in the 1980s and the advances we made!

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Re: AB5 and CLSA

Postby TTaylor » Thu Jan 09, 2020 4:40 pm

I will, Mr. Pallamary, look at efforts in the past by long term, well respected, CLSA members around legislative issues.

My current comments were meant to illuminate an approach that worked in the past for me for those working hard for our interest today.

Moving forward to advance the Land Surveying profession is key to all of us, particularly to those in CLSA officer positions and Committee Chairs.

.02 cents … Attack away...

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Re: AB5 and CLSA

Postby DWoolley » Thu Jan 09, 2020 7:22 pm

As was stated earlier by Tom Taylor, the practice act protects the titles, but does nothing to designate land surveyors as professionals. Again, as mentioned by someone earlier, federally, land surveyors no longer enjoy professional status - rather, land surveyors are classified as laborers and mechanics thanks to Southern California Operating Engineers, Local 12 circa 2012. Why? The reason given to me from the person responsible was he was tired of surveyors coming to California from Arizona and construction staking on a military base, namely the Naval Weapons Station in Ridge Crest, California. Understand, Local 12 lacked jurisdiction on a federal enclave and was unable to enforce a prevailing wage on federally classified professionals. Truth. The land surveying classification as a professional was essentially wrecked in California and nationally, to chase some, most likely unlicensed, out of state construction staking crew. The irony is Local 12 will dispatch one of their "surveyors" to any signatory contractor regardless of the fact there is no professional land surveyor on staff. The line of thought in dispatching unlicensed people to contractors, as it has been explained to me, is license enforcement is not Local 12's problem, but the responsibility of BPELSG.

As mentioned previously somewhere in this post, land surveying is a covered craft subject to being organized. In short, regardless of the name i.e. "[insert here] engineer" has been attempted by inspectors to not fall within a covered craft, the attempt failed spectacularly. Inspectors went by QC Engineer or similar - it isn't what you call yourself, it's what you're doing onsite. If you have an instrument in the field it is surveying, unless of course you're dispatched as a union grade checker, then you're not surveying, you're grade checking, go figure. If you're nonsignatory, well, now you're surveying again.

If you want to communicate or make an inquiry with Local 12 they request that you fax them - although it is 2020, they do not yet have email (or computers). It is a throwback to 1985. Conversely, most businesses I am familiar with no longer have fax machines. I am curious how the communication mechanics actually work for the Local 12 signatory firms. Upshot, they plan on getting email next year.

I will ask the Orange County leadership to contact their representatives, namely, Joe Padilla, OC Whip, to put this topic on the board meeting agenda scheduled on February 1. I am confident the board will vote to have the legislative advocate make an inquiry about an exemption. The CLSA legislative advocate was partners with the former CLSA advocate, Ralph Simoni, for over thirty years and is rated among the top 30 advocates in the state of California. In my experience, Mike Belote, like Ralph before him, is a top notch advocate and a straight shooter. Caution, do not make any bets on an exemption.

Also, as professionals, you have an obligation to research these laws and follow them accordingly. There are few better arguments for professional status than to know and follow the laws, particularly labor laws and the practice acts.

It is really good to have your contributions to the forum Mr. Taylor. I certainly appreciate it.

Best,

DWoolley
Last edited by DWoolley on Fri Jan 10, 2020 8:48 am, edited 2 times in total.

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Re: AB5 and CLSA

Postby DWoolley » Thu Jan 09, 2020 8:48 pm

In another thread Mike Pallamary asked "who was lobbying for the architects and engineers?" Implying their lobbyists were doing something extraordinary beyond the CLSA folks. Admittedly, their organizations are bigger and more affluent, but frankly, the task of their exemption was meniscal compared to an exemption for land surveying. Engineers and architects are a.) considered to be professionals and b.) more importantly, not a covered craft subject to organization.

According to the Project Labor Agreements I have read, engineers are exempt unless they are field inspectors or soils testing people. Being that architects and engineers have no place in the union workforce, exemption. I am confident it was only a matter of asking. The same was likely true for the physicians and attorneys, simply ask.

The land surveyors' chickens are coming home to roost for straddling the line between professional and the trades. This is exasperated by the fact land surveyors allow folks with no professional credentials to indiscriminately populate the ranks. No LSIT, CST, PLS, CFeds or Evelyn Wood's speed reading class? No problem, you can be a "surveyor". Frankly, in another era it really wasn't a problem - especially when land surveying had larger labor component i.e. brush cutter, rear chainman and draftsman. However, today it simply should no longer be an option. If an employer warehouses experienced unlicensed people without a license or a program to become licensed...can the employer honestly argue for professional status in today's market place?

I believe the public agencies, for the most part, have toed the line and have advocated for professional stature by requiring, as a minimum qualification, an LSIT to apply for a party chief position. Caltrans has provided the leadership by example by, rightfully, requiring a license as a professional land surveyor to be a party chief and an LSIT for the lower levels. If you are not demanding licensure and/or credentials for in house land surveying staff or the hired contractors, like the public agencies, you may well be talking out of both sides of your mouth when arguing professional stature. Employers seeking professional stature have an obligation to provide the training to qualify for the exam and then, provide the necessary education.

DWoolley

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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 10, 2020 10:26 am

Thanks all!

I appreciate all the efforts. If I may, the primary questions are this:

based on the PLSA titles. are we not "engineers" as defined under the act or are there other definitions. I note when Fresno and others pressed for the concept of geomatics, they were successful in seeing that the term geomatic engineer and other similar titles were included. I remember there were a lot of objections from the mainstay profession but ultimately it was adopted. Part of it was marketing, in the hopes of attracting more students and candidates to the "engineering" side of things. History is important.

Why were geologists excluded? That one really puzzles me.

*********************************************************************************************

6710. Board name and composition; reference to previous name; sunset dates
(a) There is in the Department of Consumer Affairs a Board for Professional Engineers, Land Surveyors, and Geologists, which consists of 15 members.
(b) Any reference in any law or regulation to the Board of Registration for Professional Engineers and Land Surveyors, or to the Board for Professional Engineers and Land Surveyors, is deemed to refer to the Board for Professional Engineers, Land Surveyors, and Geologists.


B&P Code:

7804. Defines who may use geologist titles
Only a person registered as a geologist under the provisions of this chapter shall be entitled to take and use the title "professional geologist." Only a person registered as a geologist and certified under the provisions of this chapter shall be entitled to take and use the title of a registered certified specialty geologist.
7804.1. Defines who may use geophysicist titles
Only a person registered as a geophysicist under the provisions of this chapter shall be entitled to take and use the title "professional geophysicist." Only a person registered as a geophysicist and certified under the provisions of this chapter shall be entitled to take and use the title of a registered certified specialty geophysicist.
***********************************************************

https://www.bpelsg.ca.gov/laws/gg_act_unannotated.pdf

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Re: AB5 and CLSA

Postby DWoolley » Fri Jan 10, 2020 10:52 am

mpallamary wrote:
Why were geologists excluded? That one really puzzles me.


Excluded from what? AB5? I do not read geologist to be exempt. Specifically, in the section related to land surveying brethren, I read:

"(3) An individual who holds an active license from the State of California and is practicing one of the following recognized profession: lawyer, architect, engineer, private investigator, or accountant."

If I missed the geologist exemption, please kindly advise. Again, it is not the title, it is the work being done. Land surveyors could be called [insert here] engineers or astronauts, handed a thermos full of Tang, and it would not create an exemption.

Additionally, if the Legislature intended to exempt licensees across the board they simply could have put a period at the end of California in the cited section.

I believe California has approximately 110 occupational licenses. In addition to land surveyors, it appears as though another 100 or so didn't make the exemption cut.

DWoolley

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 10, 2020 11:21 am

They are not listed. There are numerous legal articles out there regarding this. I will repost.

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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 10, 2020 11:25 am

https://www.dwt.com/blogs/employment-la ... oyment-law

This is from a legal article. It also lists landscape architects.

*********************************************************
All other occupations are covered under AB 5, so the ABC test applies. These include many occupations that often in the past were treated as independent contractors, such as:

Health care professionals (occupational therapists, speech therapists, optometrists, nurse practitioners, physician assistants, radiation therapists, licensed professional clinical counselors, marriage and family therapists, licensed clinical social workers, respiratory therapists, audiologists)
Rideshare, delivery service workers, and other gig economy workers
Truck drivers
Janitors & housekeepers
Health aides
Performers and other entertainment professionals
Land surveyors, landscape architects, and geologists

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 10, 2020 11:26 am

Engineering News record:

"Meanwhile, state trade associates and contractors are struggling to understand the law’s requirements and exemptions.

Not affected, in most cases, are licensed professionals such as architects and engineers, who can continue to operate as independent contractors. But the bill does not exempt surveyors, geologists and truck owner/operators."


https://www.enr.com/articles/47527-new- ... ot-for-all

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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 10, 2020 11:28 am

Another legal article.

https://www.portersimon.com/abc-is-not- ... after-ab5/

***********************************************************************************

"Under AB 5, the ABC test will apply to various occupation types that previously were characterized as independent contractors under the Borello test, such as:

Health care professionals (occupational therapists, speech therapists, optometrists, nurse practitioners, physician assistants, radiation therapists, licensed professional clinical counselors, marriage and family therapists, licensed clinical social workers, respiratory therapists, audiologists)
Rideshare, delivery service workers, and other gig economy workers
Truck drivers
Janitors & housekeepers
Health aides
Performers and other entertainment professionals
Land surveyors, landscape architects, and geologists
Campaign workers
Language interpreters
Exotic dancers
Rabbis and other clergy

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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 10, 2020 11:30 am

https://calmatters.org/economy/2019/09/ ... t-of-ab-5/

"Jobs impacted by AB 5
The bill will likely cause many industries to reclassify workers by allowing the state to enforce a stricter standard for freelancers. Here are some major ones:
Chart
Rideshare & delivery services
Uber, Lyft, DoorDash, Postmates
Truck drivers
Heavy duty trucks, Amazon delivery trucks, some tow truck companies
Janitors & housekeepers
Commercial cleaning services
Health aides
Nursing homes, assisted living facilities
Newspaper carriers
The author agreed to delay implementation by one year in a concession to newspaper publishers.
Unlicensed manicurists
Licensed manicurists will get a two-year exemption.
Land surveyors, landscape architects, geologists

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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 10, 2020 11:31 am

There are lots of legal articles out there on this topic, identifying surveyors, and they include a lot of dire warnings.

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DWoolley
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Re: AB5 and CLSA

Postby DWoolley » Fri Jan 10, 2020 12:29 pm

Mike Pallamary:

I am familiar with issues. The law is clear. Will you help me out and tell me the relevance of the articles? I am not immediately seeing it. Thank you in advance.

Sincerely,

DWoolley

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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 10, 2020 12:34 pm

Surveyors are not subject to the exemption nor are geologists. What I am trying to figure out is why engineers were exempted and surveyors and geologists are not.

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TTaylor
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Re: AB5 and CLSA

Postby TTaylor » Fri Jan 10, 2020 1:12 pm

Thanks for the kind words, Dave Woolley. So rare these days.

I think we are all in agreement that Land Surveyors and Geologists are not excluded in AB5.

I will also reiterate that any kind of "exhaustive" list produced is inevitably not complete.

That is why laws like this (IMO) are better written as criteria for exclusion and NOT listing those that are excluded.

My .02¢. Attack away...

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 10, 2020 3:39 pm

Good stuff guys!

There are too many questions and that is my point. It should not be this hard.

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Sat Jan 11, 2020 7:12 am


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Re: AB5 and CLSA

Postby mpallamary » Sat Jan 11, 2020 7:13 am

https://www.sfchronicle.com/business/ar ... 940425.php

"“There is no rhyme or reason to these nonsensical exemptions,” it says. The law also violates the constitutionally protected contracts clause, the suit says, as it would “impermissibly upend hundreds of thousands of valid, existing contracts between on-demand workers” and companies."

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Re: AB5 and CLSA

Postby Peter Ehlert » Sat Jan 11, 2020 5:46 pm

isn't that argument kinda circular?

Unenforceable Contracts, Nolo
a contract to perform acts against the law is patently invalid.
https://en.wikipedia.org/wiki/Illegal_agreement
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Re: AB5 and CLSA

Postby E_Page » Mon Jan 13, 2020 1:46 pm

The point is that those contracts were perfectly valid prior to AB 5 (maybe) and certainly prior to the Dynamax decision.

Mike is correct in that through the Dynamax decision and through AB 5, the CA Supreme Court, legislature and Governor have adversely affected thousands of working relationships between companies and independent contract employees who were happy with those working relationships.

Just another instance of the politicians not considering the unintended consequences of their actions as they are in a rush to help or protect some group that largely doesn't need or want help or protecting.

When I retire, I may reopen my private practice as a part-time concern. I may want to contract as a consultant to one or two other companies. If that consulting work keeps me so busy that I turn away other work for a couple months, under AB 5, it would appear that I would need to become an employee of the company I'm consulting for. I won't want to be under the level of control an employer/employee relationship implies. The would be employer would incur the additional costs that go with employing someone (company benefits, insurances, etc) which would mean that either I would not be able to charge a professional consulting rate or I would need to settle for wages and "benefits" that duplicate what I already have in place or otherwise neither need nor want.

Without an exemption from this needlessly protective law, it's not at all clear whether my client/employer would be able to define the working relationship that works best for each of us or be forced into an unwanted employer/employee relationship. If the latter, in my hypothetical instance and many hundreds or thousands of real instances, it is more likely that the client/employer would opt for a less expensive and less effective way to accomplish what they need done with resources they already have in-house, or simply not be able to provide the service for their clients.


With many issues, Mike often calls for alarm at a much higher level than is actually warranted, and often voices complaints of "Where was/is CLSA?", implying or directly stating that CLSA has ignored or is ignoring vitally important issues affecting the surveying profession. As to the CLSA's level of concern or action, he is most often, in recent years, uninformed and incorrect. But as to the potential adverse impact of this piece of governing malfeasance upon many previously valid, fair and effective working relationships within the surveying profession and on other significant portions of the CA economy, he is not wrong.
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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Mon Jan 13, 2020 4:45 pm

Interesting perspective I must say.

Once again, I would welcome the opportunity to debate the notion of right or wrong.

Any takers?

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Re: AB5 and CLSA

Postby Mr. Smith » Tue Jan 14, 2020 8:00 am

Mike P. Right or wrong is subject to change with the times don’t you think?

Let us forget the AB5 discussion for a moment. A consulting Surveyor in contract with an engineering firm may not be covered by the engineering firms E & O. If a blunder happened both the private practice surveyor and the engineering firm will be sucked in to costly litigation regardless who made the blunder.
If the surveyor was an employee of the engineering having E&O then the employee will be under a type of umbrella.
If the contract surveyor is working out of his or her garage, without E&O, financial violence can occur. [what my E&O carrier tells me]

Back to AB5
Hanging up a shingle is what surveyors have done for over a 100 years therefore punishment (other than described above) will be tough to enforce due to stare decisis, my 2 cent opinion, I am not an attorney.

This is just another mandate in the long line of mandates to protect a group who has more political power than we will ever have.
Brian

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Re: AB5 and CLSA

Postby E_Page » Tue Jan 14, 2020 12:23 pm

If a surveyor is operating his own practice, whether with employees or solo, whether from an office in an area with other professional offices or from his garage, and whether having many clients or just one or two, should be carrying E&O.

If one of his clients is an engineering firm, it is most likely that one of the contract provisions would be that the surveyor carry their own E&O.

Stare Decisis literally means "let the decision stand." It is used in American Jurisprudence to mean "honor previous precedent." If there was previous State Supreme Court precedent regarding a test of whether one is an employee or a contractor/consultant that is contrary to what was stated in the 2018 Dynamex decision (and what AB 5 was written to codify), then the 2018 Supreme Court through stare decisis out to arrive at a new decision.

Regulatory agencies and lower courts don't have the option of deciding to go by the pre-2018 ideas of employment simply because they had been around so long. They are required to follow what the Supreme Court, and now the legislature and governor have defined as the current law.

Inside sources tell me that even the FTB is confused as to the proper application for taxing purposes. But I have every confidence that they will eventually figure out an application that grabs the maximum amount of $$$ to fill state coffers.
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