AB5 and CLSA

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mpallamary
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AB5 and CLSA

Postby mpallamary » Thu Dec 26, 2019 11:34 am

Where was CLSA in the adoption and implementation of AB5? As best I can tell, we are not considered professionals. I note the following AB 5 Exemptions that have been carved out of the ABC test. For these occupations, the Borello multi-factor test applies when determining whether a worker must be classified as an employee. Subject to certain licensing and other requirements, here is a list of the general exemptions to AB 5. These include a number of PROFESSIONALS including Doctors, physicians, surgeons, dentists, podiatrists, veterinarians, psychologists, lawyers, architects, and engineers.

All other occupations (not professions apparently) 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

Was anyone watching the store on behalf of the survey profession, assuming that is what we are? On occasion, I refer to myself as a geomatics engineer for various reasons. Per the PLSA:

8751. Representing self as licensed

No person shall represent himself or herself as, or use the title of, or any abbreviation or combination of the words in the title of, professional land surveyor, licensed land surveyor, land surveyor, land survey engineer, survey engineer, geodetic engineer, geomatics engineer, or geometronic engineer unless he or she is the holder of a valid, unsuspended, and unrevoked license.

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

Are we exempt if we call ourselves geometronic engineers? This may present a number of problems for private sector surveyors. See:

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

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


Thoughts anyone?

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Fri Dec 27, 2019 10:56 am

More to consider.
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William Magee
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Re: AB5 and CLSA

Postby William Magee » Sun Dec 29, 2019 5:11 pm

mpallamary wrote:
Where was CLSA in the adoption and implementation of AB5?

Was anyone watching the store on behalf of the survey profession, assuming that is what we are?


At the November CLSA Board of Directors meeting, CLSA’s Legislative Advocate addressed AB 5 and CLSA’s past and continuing efforts. This should be reflected in the minutes which I believe are available in draft form. You might also review the latest Cal Surveyor where he touches on the subject in his legislative briefing.

I suggest you attend your local chapter’s meetings and delve into the topic with the directors in attendance there. Educate yourself first as to these efforts and then promote and assist in the organization’s efforts instead of publicly smearing it with an apparent allegation of inaction and inattentiveness.
.
Please don’t sue.

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Sun Dec 29, 2019 6:34 pm

“The world is a looking-glass, and gives back to every man the reflection of his own face. Frown at it, and it will in turn look sourly upon you; laugh at it, and it is a jolly kind companion.”

- William Makepeace Thackeray

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ekparian
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Re: AB5 and CLSA

Postby ekparian » Mon Dec 30, 2019 5:33 pm

I'm sorry, so what does it mean for surveyors? I will be attending my next local meeting, but in the meantime what are your thoughts. We can still conduct business as usual?

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dedkad
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Re: AB5 and CLSA

Postby dedkad » Tue Dec 31, 2019 1:46 pm

Looks to me like they are just codifying case law, so should be business as usual for surveyors. The bigger question is how this is going to affect my ability to get an Uber and if the prices are going to go up.

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TTaylor
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Re: AB5 and CLSA

Postby TTaylor » Tue Dec 31, 2019 3:31 pm

Personally I would prefer any law that deals with Architects and Engineers include all of the professions defied in law as an A&E professional not just a subset.

This is an oversight, IMO, to not expressly state all professions defined in CA law as an A&E professional.

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steffan
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Re: AB5 and CLSA

Postby steffan » Tue Dec 31, 2019 4:57 pm

TTaylor wrote:Personally I would prefer any law that deals with Architects and Engineers include all of the professions defied in law as an A&E professional not just a subset.

This is an oversight, IMO, to not expressly state all professions defined in CA law as an A&E professional.


A curious thing about the definition of A&E (4529.10 Govt. Code is it includes environmental consultants and construction management consultants. Neither of which are licensed or regulated “professions”.

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TTaylor
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Re: AB5 and CLSA

Postby TTaylor » Tue Dec 31, 2019 5:31 pm

We are.

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Wed Jan 01, 2020 8:03 am

The problem, as I see it, is because "surveyors" are not recognized as "professionals," under the bill, we are viewed as akin to Uber drivers, and delivery drivers. We are not professionals - by definition.

I think this presents a problem for folks that may do contract field work, say as a crew or surveyor for hire, and perhaps contract drafters and the like.

This could create exposure for the company or person who does the hiring. The former employee/contractor test has been changed.

I would think, with all due respect to the powers that be, that CLSA should publish an informative article about this to clarify things.

I stand on my original question. Because we are authorized to use the term "engineer" in our title, are we exempt?

At a minimum you should look into this.

This is from an article in JDSUPRA.
https://www.jdsupra.com/legalnews/ab5-i ... hat-86489/

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

On September 18, 2019, California governor Gavin Newsom signed into law a contentious piece of legislation—AB5—that could potentially reclassify millions of independent contractors as employees and dramatically reshape the future of independent workforces in California and beyond.

As its nickname, the “gig worker bill”, suggests much of the discussion around AB5 has focused on its effects on the Ubers and Lyfts of the world. But it is actually far, far bigger than that, with the potential to touch nearly all companies in California—and even some outside of California—that use independent contractors (see below for some notable industry exemptions).

While the immediacy is most keenly felt in California, if “as California goes, so goes the nation” holds true then the door is wide open for other states to follow suit and enact similar laws that make it ever more difficult to classify workers as independent contractors (ICs). In addition, because of how the law is written, its reach may even extend to companies outside of California if those companies contract with independent contractors who cross into California—even on a limited basis.

The state of panic has been palpable, but before the dread of restructuring an entire workforce sets in, there are some proactive steps that can be taken to function in a post-AB5 economy.

What does AB5 do?

AB5 codifies the landmark April 2018 decision in the Dynamex case. With this decision, California’s Supreme Court determined that the rigorous, three-pronged “ABC Test” must be used to determine worker classification in wage-order claims.

Under the ABC Test a worker is presumed to be an employee—and the burden to demonstrate their independent contractor status is placed squarely on the shoulders of the hiring company. To do this successfully a company must demonstrate (the emphasis is on “demonstrate” as scrupulous documentation is critical) that the worker satisfies all 3 criteria of the test (1 or 2 doesn’t cut it).

A worker can only be classified as an independent contractor if:

(a) the worker is free from control and direction in the performance of services; and
(b) the worker is performing work outside the usual course of the business of the hiring company; and
(c) the worker is customarily engaged in an independently established trade, occupation, or business.


This definition of an independent contractor is much narrower than that of the multi-factor Borello test—the standard previously used in California, which made it far easier to classify workers as independent contractors.

AB5 makes the ABC Test the law in California, but it also expands its application beyond wage-order claims to all provisions under the state Labor and Unemployment Insurance codes.

How will AB5 be enforced?

This is really the (multi-) billion-dollar question, one that will take some time to be answered as there is a significant gap between what a law dictates and how it is interpreted by the courts.

A variety of California agencies oversee worker classification as it pertains to claims made by individuals. However, those individual claims can trigger larger agency audits of hiring companies’ classification practices—and those audits will now look to the ABC Test to determine improper classification.

We can almost certainly expect to see enforcement duked out in some lengthy legal battles. AB5 enables the California attorney general, city attorneys, and local prosecutors to sue companies over violations. If this occurs it would require a judge’s order to force companies to reclassify their workers; and large entities with deep pockets like Uber and Lyft would likely fight their cases for years. In addition, expect years of lobbying efforts for industry-related exemptions at the legislative level.

This is where the issue of interpretation comes into play, in the wake of the Dynamex ruling, so far the Supreme Court of California has yet to apply all 3 prongs of the ABC test in any single case. The point here is that the interpretation of AB5 will be just as critical as the legislation itself. And right now, that interpretation is an unknown.

Certainly, compliantly structuring, implementing and documenting independent contractor relationships will be more challenging under the ABC Test, but it is possible that courts will interpret AB5 in a way that permits some companies to classify workers as ICs.

Who is exempt from AB5—and who isn’t?

Prior to its passage, AB5 was the subject of major lobbying efforts on both sides of the issue. The result is that over 50 professions or types of businesses are exempt from the bill. Exemptions include doctors, dentists, insurance agents, lawyers, accounts, real estate agents, hairstylists, and a variety of creative professionals.

However, AB5 also exempts business-to-business contractors that meet 12 specific requirements and referral agencies that meet 10 specific requirements. This keeps the door open for establishing a sound business-to-business relationship between hiring companies/ referral agencies and independent contractors, but also requires a deliberately planned strategy to achieve compliance with all of the various requirements.

To be clear, exemption from AB5 does not mean that workers can automatically be classified as independent contractors by virtue of waving some kind of classification magic wand. Rather, it means the former Borello test will be used to determine their classification for both wage-order and non-wage-order claims. So structuring and documenting the independent contractor arrangement to comply with the multi-factor test is crucial for exempt businesses.

Are there implications outside California?

Very likely, yes. In recent years, 20 states have already implemented the ABC Test in one form or another, although primarily in relation to unemployment insurance or workers’ compensation claims. The passage of AB5 could certainly hasten the ABC Test trend and expand it not only to other states but to other claim types. Because California’s economy is larger than any other US state, legal and political developments there tend to have a ripple effect both across other states and at the federal level.

Since it is certainly possible similar bills will begin to pop up elsewhere, businesses operating outside of California should be proactive in shoring up the appropriate independent contractor processes and relationships now. Though it will take some time for any new legislation to actually be passed, that legislation could be applied retroactively so the sooner a company’s ducks are in a row, the better.

Is it time to start panicking yet?
Planning, not panic, is the most helpful here. There’s no doubt that AB5 will have a meaningful impact, both inside and outside California. But again, how the law will be interpreted and applied remains to be seen. Certainly, fear of non-compliance is justified, but there are some proactive steps to take.

If you operate in California, it’s a good idea to start acting now. If you operate outside of California, you have more time, but taking the necessary steps now could save you some sleepless nights later.

What steps can my business take?

Get the right legal counsel. First things first, consult an attorney that specializes in independent contractor and employment law. Seek out a specialist that has a full grasp of the nuances and who understands the possibilities for structuring the independent contractor relationship.
Assess your risk. Under guidance from your counsel, conduct an audit of your independent contractor management processes. Every touchpoint with an independent contractor is relevant here to help you understand what is and isn’t compliant. A comprehensive audit would take a wide view to include:

engagement guidelines
contractual terms
IC incorporation requirements
rate negotiations
documentation processes
work structure and level of control
staff and IC interactions

Leverage technology.

The right technology can help you structure your business’s relationship with independent contractors to minimize risk. You’ll want a platform and managed service provider that can help you with the risk assessment in step 2 but also provide guidance on and implement best practices specific to your industry, independent contractor relationship model, and changing regulations. It’s critical that this solution also includes comprehensive documentation of your company’s relationship with the IC at every stage of the IC lifecycle.

Create separation.

Establishing an arm’s length, business-to-business relationship with independent contractors is one of the most important steps you can take to stay compliant, no matter what state you’re in. AB5 specifically exempts business-to-business contractors from the ABC Test as long as they meet a set of 12 criteria—all of which demonstrate that the contractor operates as their own business entity.Implementing technology can act as the intermediary between you and the independent contractor to support a business-to-business model while also providing the necessary tools for the contractor to establish themselves as a separate business.


Final thoughts: Are there other unintended consequences we may see?

The fallout from AB5 is not limited to companies utilizing independent contractor workforces. Two very significant issues will quickly be felt by all California residents:

The ineligible worker fallout.

Federal law, through the Form I-9 process, requires employers to verify that every employee is eligible to work in the United States at the time of hire. This is the “show your passport or social security card” process we have all been through—unless you are an independent contractor. Independent contractor eligibility to work in the US is spotty at best. In fact, some experts estimate that ineligible workers may make up as much as 25% of the total Uber/Lyft workforce in some areas. How will California potentially absorb tens of thousands of workers in the event that they are suddenly turned away from Uber and Lyft because they cannot meet I-9 requirements? No one is quite sure.

Increased costs to businesses and consumers. Experts predict that shifting a transportation-related independent contractor workforce to an employee workforce can increase the cost of labor by 35% or more. With razor thin margins in most of the transportation industry, this translates to some serious cost increases to both businesses and consumers in California. Some estimate that Uber fares would need to increase by 20% or more to accommodate those increased labor costs. Those $20 fares are now $24 or more. Are Californians willing to tolerate this? No one is quite sure.

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Wed Jan 01, 2020 8:08 am

Here are some of of the occupations (Note: I did not say professions) we are grouped with:


strippers

janitors

delivery services

truck drivers

newspaper carriers

housekeepers

health aides

campaign workers

unlicensed manicurists

language interpreters

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Wed Jan 01, 2020 8:12 am

From:

https://www.tysonmendes.com/californias ... g-economy/


"Several immediate changes are likely when AB5 becomes effective on January 1, 2020. As businesses are compelled to reclassify groups of workers as employees and pay them legally-required benefits employers costs would then increase and would ultimately be passed on to consumers for goods and services. Some industries, like health care, may experience a shortage of workers due to the loss of flexibility in employment that will result from the reclassification to independent contractors."

"In addition, businesses which refuse to reclassify employees are likely to experience a significant number of legal challenges, both from public and private sources. Such challenges will result in relatively prompt capitulation by small businesses, which cannot afford to fund protracted litigation. For larger entities, including the gig-economy giants, litigation over the classification of workers is likely to occupy a small army of lawyers and many arbitrators and judges for several years."

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Wed Jan 01, 2020 8:22 am

Does anyone know what the surveying profession's (Notice I did not say industry's) position is/was in this matter? Did the surveying profession seek exemptions? What about the surveying industry?

From another article:

"Opponents said the bill would harm the millions of Californians who work as independent contractors and have the ability to set their own schedules."

“This Legislature should not be in the business of picking favorites which is exactly what this legislation does,” said Senate GOP leader Shannon Grove of Bakersfield. “A one-sized-fits all employment test should not and cannot apply to these Californians who depend on their income from independent contract work.”

"Since the bill’s author, Assemblywoman Lorena Gonzalez (D-San Diego), introduced the measure at the beginning of the year, a parade of interest groups have asked for special rules for their industries. Some succeeded: Insurance brokers and some who work in real estate professions, marketing and the arts would remain subject to the rules that existed before the 2018 court ruling."

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TTaylor
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Re: AB5 and CLSA

Postby TTaylor » Wed Jan 01, 2020 9:38 am

Many of the "industries" exempted do not have a " Practice Act" like the Land Surveying profession does.

IMO, Land Surveying and the other A&E defined professions should also have been exempted because (for one) of the different contracting requirements established in The Mini Brooks act. I.e. qualifications based as opposed to low bid.

Having a subset of the defined A&E professions in AB5 lessens existing law and is an oversite by the bills author.
Last edited by TTaylor on Wed Jan 01, 2020 12:23 pm, edited 2 times in total.

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Wed Jan 01, 2020 10:44 am

I agree 100%. How do we fix it or, was it CLSA's position that we should be included with stripers and delivery people?

Does anyone care?

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Wed Jan 01, 2020 10:47 am

dedkad wrote:Looks to me like they are just codifying case law, so should be business as usual for surveyors. The bigger question is how this is going to affect my ability to get an Uber and if the prices are going to go up.


Dedkad: How do you operate your business? Do you contract any of your work? Do you contract with anyone else?

What is your business model?

I do not believe this will be business as usual for surveyors. To the contrary. How we are held to the same standard as Uber drivers is beyond me.

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Wed Jan 01, 2020 10:50 am

If we do not stand up for ourselves, who is going to stand up?
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David Kendall
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Re: AB5 and CLSA

Postby David Kendall » Wed Jan 01, 2020 12:35 pm

How's about we start here:

https://leginfo.legislature.ca.gov/face ... 1920200AB5

Please show me where it specifically includes land surveyors. I believe 2750.3 (c) or (e) covers me.

The way I read it, your scope of practice must be pretty grey anyway before you have to worry about being an employee. An unlicensed person with no business license maybe. I could see this possibly putting some of the union or agency guys in a bind, especially if they are moonlighting.

As far as I'm concerned it's business as usual until I get some more explicit documentation to tell me otherwise.

It doesn't take much to set up a business. Lot of guys doing it.....

This may complicate my ability to have an unlicensed helper be considered a contractor but ethically I believe it is right to hire them as part-time employee anyway. If they have a contractor's license then I could probably make it work for a construction project under 2750.3 (f)

If I hire another licensed professional to do something that I can't do for myself then they are a contractor. This is clearly stated in the PLS act where it requires us to have contracts. I have always considered this to equate Surveyors to licensed contractors

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TTaylor
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Re: AB5 and CLSA

Postby TTaylor » Wed Jan 01, 2020 12:51 pm

"The bill would exempt specified occupations from the application of Dynamex, and would instead provide that these occupations are governed by Borello. These exempt occupations would include, among others, licensed insurance agents, certain licensed health care professionals, registered securities broker-dealers or investment advisers, direct sales salespersons, real estate licensees, commercial fishermen, workers providing licensed barber or cosmetology services, and others performing work under a contract for professional services, with another business entity, or pursuant to a subcontract in the construction industry."

So, Engineers, Architects, hair dressers, fisherman, and some sales people are exempt.

Not us, or the rest of legally defined A&E folks.

We should always defend our status and not be grouped with strppers.

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Wed Jan 01, 2020 1:26 pm

Amen; that is my point. Apparently this was discussed at the Executive Board some time ago. I must assume it was CLSA's desire to accept this classification. From best I can tell, other professions fought for their professional status. I am trying to understand what CLSA's position is.

PS, Happy New Year

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Wed Jan 01, 2020 1:28 pm

David Kendall wrote:How's about we start here:

https://leginfo.legislature.ca.gov/face ... 1920200AB5

Please show me where it specifically includes land surveyors. I believe 2750.3 (c) or (e) covers me.

The way I read it, your scope of practice must be pretty grey anyway before you have to worry about being an employee. An unlicensed person with no business license maybe. I could see this possibly putting some of the union or agency guys in a bind, especially if they are moonlighting.

As far as I'm concerned it's business as usual until I get some more explicit documentation to tell me otherwise.

It doesn't take much to set up a business. Lot of guys doing it.....

This may complicate my ability to have an unlicensed helper be considered a contractor but ethically I believe it is right to hire them as part-time employee anyway. If they have a contractor's license then I could probably make it work for a construction project under 2750.3 (f)

If I hire another licensed professional to do something that I can't do for myself then they are a contractor. This is clearly stated in the PLS act where it requires us to have contracts. I have always considered this to equate Surveyors to licensed contractors



Hi Dave. Happy New Year.

You have a good point and a good question. Like you, I am merely asking questions.

My objective is to figure out what it all means and why we were not exempted.

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Wed Jan 01, 2020 1:39 pm

This is the codified language under the Labor Code:


2750.3. (a) (1) For purposes of the provisions of this code and the Unemployment Insurance Code, and for the wage orders of the Industrial Welfare Commission, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied:

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

So my question remains: Are surveyors "engineers"? Are we a recognized profession?

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pls5528
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Re: AB5 and CLSA

Postby pls5528 » Wed Jan 01, 2020 6:22 pm

I think we all have the same objectives, in that, we want to be respected, and considered, by ourselves and the public as professionals. I agree with Mr. Pallamary in that the Bill seems to lump us into a catagory of workers which perhaps should have been more selective and thought of prior to the adoption of this Bill. I have been in this business long enough to know, the surveyors who are surveyors from the heart, love what they do, respect the rules and want to truely help the profession, and, the others, which are good "test takers", and in this for the money. If the language needs to change, it is up to us (the ones which truely care) to make those changes happen for the good of our profession.

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Wed Jan 01, 2020 9:35 pm

Well said. Well said.

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Wed Jan 01, 2020 9:51 pm

I have a theory about what happened here. According to all the articles I have read, those written by legal scholars, land surveyors and geologists are not exempted from the bill. I find that curious until I looked at the name of our board: The Board for Professional Engineers, Land Surveyors, and Geologists,

I believe these legal scholars interpret the new law dues to the fact that land surveyors and geologists are not exempted. The first discipline under the state board is ENGINEERS, followed by Land Surveyors and Geologists. This would appear to demonstrate ignorance or, someone did not properly educate the legislature. I think that perhaps the omission of Land Surveyors and Geologists was an oversight, or an error. For them to have uniquely carved out Land Surveyors and Geologists was hopefully unintentional. Conversely, a black and white reading of the law clearly omits us.

I am wondering if anyone can explain this mystery for I believe this could be a major headache for the profession. I can't speak to the effects on the non-professionals like strippers and Uber drivers, and pizza delivery drivers.

From my perspective, we should nip this thing in the bud. It does not bode well for the professional land surveying community.

I can assure you that land surveyors need a great deal of flexibility with regards to product delivery and other important things like short term engagements to meet deadlines as well as overall liability and exposure.

Does anyone care?

If not, why not?


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