BILL ANALYSIS                                                                                                                                                                                                    







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        |Hearing Date:April 5, 2010         |Bill No:SB                         |
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                      SENATE COMMITTEE ON BUSINESS, PROFESSIONS 
                               AND ECONOMIC DEVELOPMENT
                         Senator Gloria Negrete McLeod, Chair

                          Bill No:        SB 1254Author:Leno
                      As Amended:March 22, 2010       Fiscal:Yes

        
        SUBJECT:  Contractors:  workers compensation.
        
        SUMMARY:  Authorizes the registrar of the Contractors State License  
        Board to issue a stop order to any unlicensed contractor who as an  
        employer who has failed to secure workers' compensation insurance  
        coverage for his or her employees; establishes procedures to request a  
        hearing to protest a stop order; authorizes the Director of the  
        Department of Consumer Affairs to designate 12 persons as peace  
        officers for assignment to the special investigations unit of the  
        Board.

        Existing law, the Business and Professions Code:
        
        1) Licenses and regulates more than 250,000 contractors under the  
           Contractors State License Law by the Contractors State License  
           Board (CSLB) within the Department of Consumer Affairs (DCA).  The  
           CSLB is under the direction of the registrar of contractors  
           (Registrar)

        2) Requires every licensed contractor to have on file at all times  
           with the CSLB a current and valid Certificate of Workers'  
           Compensation Insurance or Certification of Self-Insurance, or a  
           statement certifying that he or she has no employees and is not  
           required to obtain or maintain workers' compensation insurance  
           coverage.

        3) Provides that failure of a licensed contractor to obtain or  
           maintain workers' compensation insurance coverage, if required  
           under this chapter, shall result in the automatic suspension of the  
           license by operation of law.  The suspension shall be effective on  
           the earlier of the date that the workers' compensation insurance  





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           coverage lapses or the date that workers' compensation coverage is  
           required to be obtained.

        4) Makes it a misdemeanor for an unlicensed person to engage in the  
           business or act in the capacity of a contractor and makes a first  
           offense punishable by imprisonment in the county jail for up to six  
           months, or by a fine up to $5,000, or both.  The law further  
           establishes enhanced penalties imposed by the court for a repeat  
           unlicensed contractor offender.

        5) Provides that persons employed as investigators of CSLB's special  
           investigations unit and designated by the Director of DCA have the  
           authority of peace officers in investigating contractor law  
           violations or with any criminal prosecution arising from any  
           investigation conducted under these laws.

        

        Existing law, the Labor Code:
        
     1)Requires private employers to secure the payment of compensation by  
          obtaining and maintaining workers' compensation insurance or to  
          self-insure as an individual employer or as one employer in a group  
          of employers.

     2)Provides that when an employer has failed to secure the payment of  
          compensation as required, the Director of the Department of  
          Industrial Relations (DIR) shall issue the employer a stop order  
          prohibiting the use of employee labor until the employer complies  
          with the worker's compensation insurance requirements.

           a)   The stop order shall become effective immediately upon  
             service.

           b)   Any employee so affected by work stoppage under the stop order  
             shall be paid by the employer for the time lost, not exceeding 10  
             days, pending compliance by the employer.

     3)Establishes specified procedures to request a hearing to protest a stop  
          order, as follows:

           a)   An employer may protest the stop order by filing with the  
             Director of DIR a written request for a hearing within 20 days  
             after service of the stop order.

           b)   The hearing must be held within 5 days from the date the  





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             request is filed.

           c)   The Director of DIR must notify the employer of the time and  
             place of the hearing by mail.  

           d)   At the conclusion of the hearing the stop order shall be  
             immediately affirmed or dismissed, and within 24 hours thereafter  
             the Director shall issue and serve by registered or certified  
             mail the written findings of the hearing.

           e)   A writ of mandate may be taken from the findings to the  
             appropriate superior court within 45 days after the mailing of  
             the findings.

        Existing law, the Penal Code:
        
        1)Designates specified persons employed by specifically-identified  
          state agencies as peace officers and gives those persons the power  
          of arrest.

        2)Authorizes the Director of DCA to designate 3 persons as peace  
          officers to be assigned to the special investigations unit of the  
          CSLB, and prohibits those persons from carrying firearms.


        This bill:

        1) Authorizes the Registrar to issue a stop order to any unlicensed  
           contractor who as an employer has failed to secure workers'  
           compensation insurance coverage for his or her employees.  

        2) Makes failure to comply with the stop order a misdemeanor (crime)  
           punishable by imprisonment in the county jail for up to 60 days, or  
           by a fine up to $10,000, or both.

        3) Establishes specified procedures to request a hearing to protest a  
           stop order, that mirror "Existing law, the Labor Code:" Item #3).   
           These procedures include the following:

           a)   An unlicensed contractor employer may protest the stop order  
             by filing with the Registrar a written request for a hearing  
             within 20 days after service of the stop order.

           b)   The hearing must be held within 5 days from the date the  
             request is filed.  






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           c)   The Registrar must notify the employer of the time and place  
             of the hearing by mail.  

           d)   At the conclusion of the hearing the stop order shall be  
             immediately affirmed or dismissed, and within 24 hours thereafter  
             the Registrar shall issue and serve by registered or certified  
             mail the written findings of the hearing.  

           e)   A writ of mandate may be taken from the findings to the  
             appropriate superior court within 45 days after the mailing of  
             the findings. 

        4) Authorizes the Director of DCA to designate 12 persons as peace  
           officers for assignment to the special investigations unit of the  
           CSLB.


        FISCAL EFFECT:  Unknown.  This bill has been keyed "fiscal" by  
        Legislative Counsel.


        COMMENTS:
        
        1.Purpose.  This bill is sponsored by  Contractors License Board  , the  
           Marin Builders Association  , the  Engineering Contractors Association  ,  
          the  Flasher/Barricade Association  and the  California Fence  
          Contractors Association  (Sponsors).  The Sponsors argue that  
          unlicensed contractors have an illegal, unfair advantage over  
          legitimate licensees; and the use of uninsured employees represent a  
          potential risk to the public by the fact that a property owner could  
          be held liable for injures to an uninsured worker.  The Sponsors  
          state that this bill will provide the CSLB with the authority to  
          issue an administrative stop work order to unlicensed contractors  
          who are not providing workers' compensation for their employees, and  
          make failure to comply with the order a misdemeanor.  

        The Sponsors also state that although the bill would increase the  
          number of peace officers that the CSLB may employee from 3 to 12,  
          the bill does not automatically increase the number of CSLB's peace  
          officers.  There are still the current multi-layer approval  
          requirements.  The CSLB would still have to seek authorization to  
          employ the additional peace officers through a Budget Change  
          Proposal (BCP).  The BCP to employ additional peace officers would  
          have to be approved by both DCA and the Department of Finance, and  
          ultimately the funds must be appropriated by the Legislature through  
          the annual Budget process.  The Sponsors stress that while the CSLB  





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          has funding available for these positions, none will be funded  
          without ultimate approval in the Budget.  The bill provides mere  
          authorization to move forward in the budget process with these new  
          positions.
        2.Background.  The Labor Code requires private employers to secure the  
          payment of compensation by obtaining and maintaining workers'  
          compensation insurance or to self-insure as an individual employer  
          or as one employer in a group of employers.  These provisions apply  
          to contractors, and the Business and Professions Code requires a  
          contractor to have workers compensation insurance or to certify to  
          the CSLB that they do not have any employees as a condition for  
          licensure.

        There is widespread belief in the business community that high costs  
          are making it increasingly difficult to do business in California.   
          Often cited as a primary example of this is the state's workers'  
          compensation system.  In 2004, the Legislature undertook reform of  
          policies and procedures in that system, hoping to curb the  
          skyrocketing costs of workers' compensation premiums in the state  
          and made some fundamental reforms.  

        However, the deteriorating economy has made it difficult for those  
          engaged in business to make ends meet.  In some cases, legitimate  
          contractors have gone out of business and have had to lay off their  
          employee workforce.  In some cases, those former employees who do  
          not hold contractor licenses seek to work in the building or home  
          improvement industry, and ultimately become unlicensed contractors.   
          It naturally would follow that those contracting without a license  
          would be unlikely to obtain workers compensation insurance for the  
          workers that they may employ.  This cuts the cost margins for the  
          unlicensed contractor, and often allows the unlicensed contractor to  
          undercut legitimate, licensed contractors on price.  

        Failing to secure unemployment insurance jeopardizes not only the  
          employees of the unlicensed contractor, but also the consumer (often  
          a homeowner).  If a worker is injured on the job and there is no  
          workers compensation insurance, the homeowner may be held liable for  
          medical costs.  Often, homeowners insurance does not cover uninsured  
          workers in such cases.  

        3.Battling the Underground Economy.  The underground economy is an  
          ongoing threat to California's citizens and legitimate businesses.   
          Illegal and unlicensed operators who fail to pay taxes and comply  
          with licensing and insurance laws take revenues earmarked for public  
          schools, law enforcement, and other public services.  It is  
          estimated that California loses between $60 to $140 billion in  





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          revenues and unpaid taxes each year as a result of the underground  
          economy.

        In battling the underground economy, in 2006, the CSLB joined with  
          various state and federal regulators to form the Economic and  
          Employment Enforcement Coalition (EEEC) in performing  a number of  
          construction sweeps.  In addition the CSLB continues its proactive  
          enforcement efforts with its Statewide Investigative Fraud Team  
          (SWIFT) carrying out numerous undercover sting operations each year,  
          targeting unlicensed operators and repeat offenders.

        Through these efforts, the CSLB is able to initiate action against  
          numerous unlicensed contractors and repeat unlicensed offenders.   
          These unlicensed persons are typically cited or arrested, and cases  
          are referred to local district attorneys for prosecution.

        The CSLB also cooperates with DIR's Division of Labor Standards  
          Enforcement (DLSE) in enforcing the workers compensation laws.   
          However, the DLSE currently has certain enforcement tools that the  
          Sponsors of this bill believe would be useful and effective for the  
          CSLB to have.  Specifically, (1) the authority to issue an  
          administrative order to stop the further use of uninsured employees  
          and, (2) the ability to press criminal charges for a violation of  
          the order.  The Sponsors believe that while CSLB and DLSE work  
          together at times, providing the CSLB with this authority  
          (specifically for unlicensed contractors) would further enhance the  
          state's efforts to enforce these provisions in the law, most notably  
          targeting the underground economy with CSLB enforcement efforts  
          designed for that purpose.

        4.Arguments in Support.  The CSLB, one of the Sponsors of the bill,  
          writes in support and states that the bill will help to mitigate the  
          harm to the industry and consumers by providing the CSLB with the  
          authority to issue an administrative stop work order to unlicensed  
          contractors who do not cover their employees with workers  
          compensation insurance.  CSLB believes that the bill's increase in  
          the number of peace officers that may be employed from 
        3 to 12 is an essential component, and states that the enactment of  
          these provisions "could more readily assist our enforcement efforts  
          against unlicensed contractors and the burgeoning underground  
          economy.  These peace officer positions, if approved, would also be  
          used to pursue criminal charges against licensees whenever the  
          evidence obtained in a consumer case reveals workers' compensation  
          insurance fraud and abuse."

         American Subcontractors Association-California  (ASAC) writes that  





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          hundreds of ASAC member companies have incredible difficulty  
          competing with illegitimate, uninsured, underinsured, and unlicensed  
          workmen.  Unlicensed contractors shave costs and easily undercut our  
          legitimate businesses.  Not carrying workers' compensation insurance  
          provides a loophole for these unlicensed persons and jeopardizes  
          both their employees, day labor, and the public as property owners  
          may be liable for injuries on their property, according to ASAC.

         California Applicants Attorneys Association  believes the bill will  
          help crack down on the underground economy, and ensure that workers  
          have access to medical and indemnity benefits if they are injured on  
          the job.  

         California Landscape Contractors Association  (CLCA) states that when  
          an unlicensed contractor is cited and removed from the worksite,  
          they may continue to direct the performance of illegal work using  
          employees.  By issuing a stop work order and making failure to  
          comply with the order a misdemeanor, the bill expands the menu of  
          remedies that the CSLB may seek to stop unlicensed contracting  
          activities as well as violations of the state's labor laws.  CLCA  
          further states that by adding 9 sworn peace officer positions to the  
          CSLB's special investigations unit, the bill would give each CSLB  
          regional office a full time peace officer with the power to arrest  
          persons who demonstrate a pattern of repeat violations.

         California Chamber of Commerce  states that the bill offers protection  
          to contractors that are issued a stop order by creating a timely and  
          transparent dispute resolution process which provides protections to  
          any contractor that can prove it has been inappropriately issued a  
          stop order.

         Construction Industry Legislative Council  (CILC) states that although  
          CSLB currently issues administrative citations to unlicensed  
          contractors, the accompanying orders of abatement are often ignored  
          and the unlicensed contractors continue working.  The criminal  
          violation in the bill would add a considerable deterrent for  
          ignoring a stop work order in these situations.


        5.Related Legislation.   AB 370  (Eng, Chapter 319, Statutes of 2009)  
          increases the maximum criminal fines for unlicensed contractors;  
          requires a mandatory jail sentence for a third or subsequent  
          conviction for unlicensed contracting; clarifies that the enhanced  
          penalties for persons with prior unlicensed activity convictions  
          applies not only for performing work, but also for offering to  
          perform or submitting a bid to perform contracting work.  





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         AB 2412  (Eng) of 2008, was the same as AB 370, but was was one of an  
          unprecedented number of bills that were vetoed by the Governor  
          citing the delay in passing the Budget.

         AB 881  (Emmerson, Chapter 38, Statutes of 2006) requires all licensed  
          roofers to have workers compensation insurance, and authorizes the  
          Registrar to remove the roofing classification from a contractor  
          license for failure to maintain workers' compensation insurance.

        6.Policy issues:  Suggested Amendments.
        
           a)   Should these provisions also apply to licensed contractors?   
             The Sponsors argue that unlicensed contractors with employees who  
             are not covered under workers compensation costs legitimate  
             contractors "playing by the rules" a significant amount of work,  
             since overhead costs are significantly lower.  Because of the  
             cost savings from not having paying workers compensation  
             insurance, and failure to pay or under-reporting income taxes,  
             etc., such contractors are able to cut their costs and underbid  
             legitimate contractors who play by the rules.  However, the  
             industry has not only suggested that unlicensed contractors, who  
             fail to provide workers compensation insurance for their  
             employees, take jobs from legitimate contractors and do harm to  
             consumers, but also those contractors who  are   licensed  and who do  
             not obtain workers compensation insurance also harm both the  
             legitimate contractor and the consumer.

           The Author may want to consider amending this bill to authorize the  
             Registrar to  issue a stop work order to a licensed contractor  
             who fails to secure workers compensation insurance for his or her  
             employees.

           b)   Should the enforcement provisions in this bill more fully  
             mirror the provisions in the Labor Code?  The provisions of this  
             bill which authorize the Registrar of the CSLB to issue a stop  
             work order largely mirror those in Labor Code Section 3710.1 (See  
             "Existing law, the Labor Code" items # 2) & #3), above).   
             However, this bill does not specifically provide for the stop  
             order to become effective immediately upon service, nor does it  
             contain a requirement to pay any employee affected by such a work  
             stoppage to be paid by the employer for such time lost, not to  
             exceed 10 days, pending compliance by the employer.

           The Author may want to consider amending this bill to require that  
             the stop work order issued by the Registrar become effective  





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             immediately upon service, and to require that any employee  
             affected by such a work stoppage shall be paid by the employer  
             for such time lost, not to exceed 10 days, pending compliance by  
             the employer.


         
        Support:   

        Contractors License Board (Sponsor)
        California Fence Contractors Association (Sponsor) 
        Engineering Contractors Association (Sponsor)
        Flasher/Barricade Association (Sponsor)
        Marin Builders Association (Sponsor)
        American Subcontractors Association-California
        California Applicants Attorneys Association
        California Association of Sheet metal and Air Conditioning  
          Contractors National Association 
        California Chamber of Commerce
        California Landscape Contractors Association
        California Legislative Conference of the Plumbing, Heating and  
          Piping Industry
        California Spa and Pool Industry Education Council
        California State Council of Laborers
        California Teamsters Public Affairs Council
        Construction Industry Legislative Council
        Golden State Builders Exchanges
        National Electrical Contractors Association, California Chapter 
        Plumbing-Heating-Cooling Contractors of California
        Western Electrical Contractors Association


         Opposition:   

        None received as of March 31, 2010.



        Consultant:G. V. Ayers