On August 31, 2012 (the last day of the 2012 California legislative session), the California State Assembly voted 72-5 and the California State Senate voted 34-4 for Senate Bill 863, a bill making various changes to California’s workers compensation system.
As is customary in the California State Legislature, the bill was created as a gut-and-amend at the last minute (amended on August 24, August 27, and August 30) and whipped through the legislative process to Governor Jerry Brown on August 31 without adequate review.
As Sacramento Bee columnist Dan Walters wrote in his September 2, 2012 column entitled The Legislative Process Does Count:
A 170-page overhaul of California’s multi-billion-dollar workers’ compensation system – hammered out during months of secret negotiations between business and labor union lobbyists – was dumped on the desks of 80 Assembly members late Friday after being whisked through two perfunctory committee hearings…
So is SB 863 good public policy or not?
One can’t really answer that question, and the same ambiguity envelops almost everything else that was done, and left undone, in the final days of the session.
SB 863 was one of countless measures that popped up during those days, entirely new bills that were hustled through the process with little or no detailed knowledge of what they really do, or whose interests they serve.
I looked at the final version of Senate Bill 863 to see if the bill changed the obscure alternative dispute resolution “carve-out” program authorized exclusively for the unionized construction industry. It does. For some reason (innocuous or sinister?), Senate Bill 863 eliminates this reporting requirement, which was part of the original 1993 authorization:
By June 30, 1996, and annually thereafter, the Administrative Director of the Division of Workers’ Compensation shall prepare and notify Members of the Legislature that a report authorized by this section is available upon request. The report based upon aggregate data shall include the following:
(1) Person hours and payroll covered by agreements filed.
(2) The number of claims filed.
(3) The average cost per claim shall be reported by cost components whenever practicable.
(4) The number of litigated claims, including the number of claims submitted to mediation, the appeals board, or the court of appeal.
(5) The number of contested claims resolved prior to arbitration.
(6) The projected incurred costs and actual costs of claims.
(7) Safety history.
(8) The number of workers participating in vocational rehabilitation.
(9) The number of workers participating in light-duty programs.
The division shall have the authority to require those employers and groups of employers listed in subdivision (c) to provide the data listed above.
Why was this language eliminated? The legislative analyses for the bill don’t say.
Background on Alternative Dispute Resolution in Carve-Outs for Unionized Companies
This program was established as California Labor Code Section 3201.5. It was part of a workers compensation reform enacted by Governor Pete Wilson in 1993. The program was expanded by reform legislation signed by Governor Arnold Schwarzenegger in 2004. (Section 3201.7 allows unionized employers in other industries to set up similar programs.)
An article in the March 10, 2006 Sacramento Business Journal (“Unionized Firms Save in Workers’ Comp Plan“) gave rare news media attention to this program, which is only available to construction companies in a collective bargaining agreement with unions or signatory to a Project Labor Agreement. I’m quoted in the article:
Too bad this kind of program is only allowed in the construction industry when companies and employees are part of a collective bargaining agreement, said Kevin Dayton, state government affairs director for Associated Builders and Contractors of California, a merit-shop group.
The California Department of Industrial Relations maintains a list of what are now 34 carve-out programs established to date. Unions have promoted this program as a benefit of unionization. For example, the California Commission on Health and Safety and Workers’ Compensation (CHSWC) – then (and now) chaired by California Labor Federation lobbyist Angie Wei – was able to commission what is now the University of California Miguel Contreras Labor Program to produce a 2006 report entitled How To Create a Workers’ Compensation Carve-Out in California: Practical Advice for Unions and Employers. The California Commission on Health and Safety and Workers’ Compensation has also hosted at least one conference on Workers’ Compensation Carve-Outs and Alternative Dispute Resolution.
Although I never hear carve-outs cited nowadays as a reason to require contractors to sign a Project Labor Agreement, unions and pro-union construction management firms such as Parsons Constructors used the existence of this alternative dispute resolution carve-out program as an argument in support of Project Labor Agreements for large infrastructure projects during the early years of government-mandated Project Labor Agreements in California (1993-2000). One example was the Project Labor Agreement for the U.S. Department of Energy’s Lawrence Livermore National Laboratory National Ignition Facility in Livermore, California. It was negotiated in 1997 between construction manager Parsons Constructors and officials of the Building and Construction Trades Department, AFL-CIO and the Building and Construction Trades Council of Alameda County.
Seeking Access to Alternative Dispute Resolution for Non-Union Contractors
In 1998, then-Senator Dick Mountjoy introduced Senate Bill 2019, sponsored by the California Business Properties Association (the contract lobbying firm at the time for three California chapters of Associated Builders and Contractors), which would have eliminated the requirement that alternative dispute resolution programs for workers compensation in the construction industry be part of a collective bargaining agreement. Opposed by unions and trial lawyers, the bill did not get out of committee, and since then there have been no attempts to expand alternative dispute resolution in the construction industry outside of the unionized arena.
Before the 2011 legislative session, I attempted on behalf of my former employer (Associated Builders and Contractors (ABC) of California) to develop language that would allow non-union contractors to reduce workers compensation costs through participation in an alternative dispute resolution program. I was unable to figure out a way to graft such a program onto the existing law, which is dependent on the models of union collective bargaining agreements and labor-management cooperation committees.
Trying to Eliminate Favoritism in California State Law for Bidders in the Union-Exclusive Alternative Dispute Resolution System
Various laws authorize state agencies and local governments in California to award contracts for construction projects with subjective “best value criteria” under the “design-build” alternative bidding procedure. Unionized contractors that are part of alternative dispute resolution carve-out programs get a special exemption from safety requirements.
Design-build authorization language throughout California law includes the following:
A bidder’s safety record shall be deemed acceptable if their experience modification rate for the most recent three-year period is an average of 1.00 or less, and their average Total Recordable Injury/Illness rate and average lost work rate for the most recent three-year period does not exceed the applicable statistical standards for its business category, or if the bidder is a party to an alternative dispute resolution system, as provided for in Section 3201.5 of the Labor Code.
So a bidder in an alternative dispute resolution system (under California Labor Code Section 3201.5) does not have to worry about the experience modification rate or injury/illness/loss rate. As noted above, Section 3201.5 only applies to contractors in either a collective bargaining agreement or a Project Labor Agreement. Non-union contractors cannot use this method of alternative dispute resolution.
On January 11, 2010, the Assembly Business and Professions Committee considered Assembly Bill 1063, introduced by Assemblyman Martin Garrick and sponsored by my former employer, Associated Builders and Contractors (ABC) of California. It would have removed language that allows a contractor with a poor safety record to be “acceptable” if it is part of an alternative dispute resolution program that by law is restricted to contractors in a collective bargaining agreement or project labor agreement.
ABC of California argued that all design-build entities should have a decent safety record, without exceptions. The Western Electrical Contractors Association stated that “A safety record should be based on safety – not the existence of a side-agreement over dispute resolution – the two have nothing to do with each other! There is simply no valid public policy served by this requirement.” But the California Labor Federation, AFL-CIO opposed AB 1063 by praising unions and their activities, which was sufficient for the bill to fail on a party-line vote (Democrats opposed, Republicans in support.)
Update, October 31, 2013: The California Department of Industrial Relations (DIR) issued a bulletin on October 28, 2013 announcing The Division of Workers’ Compensation (DWC) Approves Carve-Out Agreement Covering 22,000 Workers in Southern California between seven Southern California United Food and Commercial Workers (UFCW) local unions, Vons and Super A Foods. I sent this tweet in response:
A labor attorney representing management emailed me a response:
But Kevin this can only work under a union contract because the health plan workers comp plan and grievance process are combined. A good idea. Still, few unions have implemented as it is a lot of work to make it work…Impossible to do in a non-union setting as the grievance process side of things would be cost prohibitive and disruptive – only works in union setting as the grievance process is already in place, as is the trust health plan administration system which does double duty – that is reason for efficiencies. Maybe some giant corporation might try it non-union but doubt it – frankly most unions see the benefits but it is so much work and can cause employee dissatisfaction if a comp case goes wrong that not worth it. And then what do you do with claimants’s lawyers? – nice idea, but generally a no-go.