How Does the California State Legislature Justify Exempting Itself from the Laws It Imposes on Private Businesses? It Uses Logical Fallacies.

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I’ve always enjoyed the thorough but concise bill analyses written by Ben Ebbink, consultant for the Democrat majority on the Assembly Labor and Employment Committee, although he and I would probably disagree on almost every issue concerning labor and employment policies. (For example, he is a member of the Assembly Speaker’s Commission on Labor Education, while I would be on the opposing commission, if it existed.)

His analyses are generally fair and accurate and would be good sources for anyone writing a report on California labor laws.

Mr. Ebbink wrote a wide-ranging analysis of numerous provisions in the California Labor Code for Assembly Bill 2052, the Labor Law Reform Act of 2004, a bill introduced by former Assemblyman Ray Haynes (R-Temecula) that I prepared for sponsorship by my former employer, Associated Builders and Contractors of California. He also wrote an excellent analysis of various provisions concerning prevailing wage determinations and public works definitions for Assembly Bill 987 and Assembly Bill 988, two companion bills introduced in 2011 by Assemblywoman Shannon Grove (R-Bakersfield) that I also prepared for sponsorship by Associated Builders and Contractors of California.

These were two ambitious bills that took a comprehensive view of the state’s labor laws and amended or repealed numerous provisions that were ambiguous, costly, and unfair. All of these bills were defeated on party-line votes, of course: Democrats opposed, Republicans in support.

Now, Mr. Ebbink recently was dealt with a difficult task: analyzing Assembly Bill 1948, a bill introduced by Assemblywoman Shannon Grove (R-Bakersfield) that extends the state’s wage and hour laws that now apply to private employers to the California State Legislature as an employer. The Assembly Labor and Employment Committee will meet tomorrow (Wednesday, April 18, 2012) at 1:30 p.m. in Room 447 of the Capitol to consider this bill and numerous other bills.

California’s extensive wage and hour laws produce a lot of confusion and a lot of litigation. While I acknowledge there are employers who willfully take advantage of their California employees and fail to follow the state’s laws concerning overtime, meal and rest periods, vacations and holidays, sick pay, working conditions, and all the other provisions of the state’s 17 regulatory Industrial Wage Orders, employers can easily misinterpret these laws, and unions and trial lawyers can easily exploit them for ulterior motives. One California law firm that represents unions even produces a guidebook called Using the California Labor Laws Offensively: Organizing Through Enforcement of State Employment Laws.

For 15 years, I’ve heard legislators and lobbyists declare that the California State Legislature is exempt from these same wage and hour laws that sometimes cause such misery for employers. Pointing this out always elicits groans and grumbles from business owners. People assume – probably correctly – that the legislature does not apply those laws to itself because those laws can interfere with a smooth and flexible relationship between reputable employers and employees.

My own letter in support of Assembly Bill 1948 (the only submission made about the bill) takes that assumption and mocks the unabashed hypocrisy of the legislature and the pitfalls that can result from the state’s wage and hour laws:

Dayton Letter in Support of Assembly Bill 1948

Assuming there is no documented legislative history explaining the rationale behind exempting the California State Legislature from wage and hour laws, what would an analysis of Assembly Bill 1948 contain?

The tone of the official committee analysis of Assembly Bill 1948 seems to assume that Assemblywoman Grove is using this bill as a weapon to trap the legislature in a Catch-22: either the legislature believes in the wage and hour laws it imposes on private businesses and therefore places itself under those same laws, or else it continues the legislative exemption and confirms that it is not desirable for an employer to be covered by these laws.

Circumventing this dilemma, Ebbink instead uses a rhetorical counter thrust, pointing out that to be consistent, Assemblywoman Grove needs to amend the bill to apply certain employment policies of the legislature to private employers, including paid sick leave and paid bereavement leave. He also states that Assemblywoman Grove should amend the bill to impose card check union recognition policies on private employers (similar to the proposed Employee Free Choice Act from the 111th Congress on the federal level) that already apply to some state and local government employees. These issues have been hotly contested at the state legislature in recent years.

But this rhetorical argument includes three logical fallacies that are closely-related:

1. First, the analysis presumes that because Assemblywoman Grove isn’t seeking complete consistency between the employment laws of the legislature and the employment laws of private businesses, she is wrong to seek partial consistency. I believe this could be classified as a variation on the tu quoque argument, where an argument is deemed to be wrong because the proponent doesn’t act consistently with that position. The argument can be rebutted by pointing out that the bill is strictly and deliberately limited to applying wage and hour laws imposed on the private sector to the California State Legislature, and not about creating exact and complete consistency between all laws of the legislature and laws imposed on private employer-employee relations.

2. The second logical fallacy is what I believe could be classified as a red herring argument: the claim that Assemblywoman Grove is failing to make private businesses operate by the same rules adopted for the legislature or for certain state and local government employees. The argument can be rebutted by pointing out that the bill is about applying wage and hour laws imposed on the private sector to the California State Legislature, and not about applying new laws to private businesses.

3. Third, when the analysis insinuates that the legislature can’t make itself follow laws it applies to private businesses because the legislature has adopted policies that aren’t imposed on private employers, it sets up a non sequitur. How did the discussion about Assembly Bill 1948 suddenly turn to whether or not private employers should automatically be unionized if a certain percentage of employees sign union authorization cards? The two issues may be related on a general level, but rejecting Assembly Bill 1948 is not a conclusion that rightfully follows from the observation that private businesses aren’t subject to a state-imposed Employee Free Choice Act.

The Assembly Labor and Employment Committee will meet tomorrow (Wednesday, April 18, 2012) at 1:30 p.m. in Room 447 of the State Capitol to discuss Assembly Bill 1948.

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