BILL ANALYSIS Ó
SB 556
Page 1
Date of Hearing: June 25, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 556 (Corbett) - As Amended: June 19, 2013
As Proposed to Be Amended
SENATE VOTE : 24-13
SUBJECT : CONTRACTOR DISCLOSURES: PUBLIC AGENCIES
KEY ISSUE : IN ORDER TO PROMOTE TRANSPARENCY IN THE PROVISION OF
COMMUNITY SERVICES, SHOULD ENTITIES CONTRACTING WITH PUBLIC
AGENCIES TO PROVIDE SERVICES TO THE PUBLIC BE REQUIRED TO
DISCLOSE ON THEIR UNIFORMS AND VEHICLES THAT THEIR EMPLOYEES ARE
NOT IN FACT GOVERNMENT EMPLOYEES?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
According to the author, this bill is needed to ensure that
members of the public can visually distinguish between
government employees and non-government employees who
increasingly are subcontracted to perform traditional public
services once almost exclusively the domain of true public
employees. This bill seeks to prevent confusion or
misperceptions that result, proponents contend, when private
contractors hired by public agencies perform community work or
services and use uniforms or vehicles appearing very similar to
those used only by employees of the public agency. In those
circumstances, this bill seeks to promote transparency by
requiring the uniform or vehicle conspicuously display a
disclosure that the contractor or employee is not a government
employee. Proposed technical amendments by the author clarify
the author's intent to allow violations of this bill to be
enforced by the remedies provided by the California Legal
Remedies Act. The bill is sponsored by the California
Professional Firefighters and the California Labor Federation,
and supported by other organized labor. These proponents
contend that the public has the right to know if a particular
worker providing a service that appears public in nature is in
fact a public employee, or is instead an independent contractor,
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subcontracted worker, or other non-governmental employee not
working for a public agency. The bill is strongly opposed by
many local government entities, including, among others, the
California State Association of Counties and the League of
California Cities. These opponents contend generally that the
bill is a solution in search of a problem, and furthermore, that
the use of similar uniforms and vehicles by contractors
providing community services should be a matter of local
control. Finally, American Medical Response (AMR), a large
contractor of paramedics and ambulance operators to local
governments, also opposes the bill, stating that in its field of
work, the utilization of county patches and identifying marks
provide assurance to the patient and family that its employees
are responding under the authority of the county and are
licensed to practice medicine in that jurisdiction.
SUMMARY : Prohibits nongovernmental persons or entities
contracting with public agencies from displaying a seal or
emblem on a uniform or vehicle, as specified, unless a
disclosure statement is also conspicuously displayed identifying
the uniform wearer or vehicle operator as not a government
employee. Specifically, this bill :
1)Makes it unlawful for a person, firm, corporation, or
association that is a nongovernmental entity and contracts to
perform labor or services for a public agency to display on a
vehicle a seal, emblem, insignia, trade or brand name, or any
other term, symbol, or content that reasonably could be
interpreted or construed as implying that the labor or
services are being provided by employees of the public agency,
unless the vehicle conspicuously displays the following
disclosure: "THE OPERATOR OF THIS VEHICLE IS NOT A GOVERNMENT
EMPLOYEE."
2)Makes it unlawful for a person or an employee of a person,
firm, corporation, or association that is a nongovernmental
entity and contracts to perform labor or services for a public
agency to wear a uniform bearing a seal, emblem, insignia,
trade or brand name, or any other term, symbol, or content
that together with the appearance of the uniform reasonably
could be interpreted or construed as implying that the labor
or services are being provided by employees of the public
agency, unless the uniform conspicuously displays the
following disclosure: "NOT A GOVERNMENT EMPLOYEE."
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3)Clarifies that the term "conspicuously displays" means to
display in a font size that is at least the same size as the
largest font size otherwise displayed on the vehicle or
uniform, in a manner that clearly calls attention to the
language, and located in close proximity to the seal, emblem,
insignia, trade or brand name, or any other term, symbol, or
content as described in this section, so as to be clearly
associated with that seal, emblem, insignia, trade or brand
name, or any other term, symbol, or content.
4)Clarifies that an identifying mark affixed to a uniform as
required by state or federal law, and a local agency
regulating the activity of the person, firm, corporation, or
association shall not be construed as implying that the labor
or services are being provided by employees of the public
agency.
5)Provides that violations of this act shall be subject to the
remedies provided in the Consumers Legal Remedies Act (Title
1.5 (commencing with Section 1750) of Part 4), and that the
duties, rights, and remedies provided in this bill are in
addition to any other duties, rights, and remedies provided by
state law.
EXISTING LAW :
1)Authorizes an employer, without prohibition, to prescribe the
weight, color, quality, texture, style, form and make of
uniforms required to be worn by his or her employees. (Labor
Code Section 452.)
2)Prohibits unfair or deceptive acts or practices undertaken by
any person in a transaction intended to result or which
results in the sale or lease of goods or services to any
consumer, including but not limited to the following:
a) Misrepresenting the source, sponsorship, approval, or
certification of goods or services.
b) Misrepresenting the affiliation, connection, or
association with, or certification by, another.
c) Using deceptive representations or designations of
geographic origin in connection with goods or services.
d) Representing that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits, or
quantities which they do not have or that a person has a
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sponsorship, approval, status, affiliation, or connection
which he or she does not have. (Civil Code Section 1770.
All further references are to this code unless otherwise
stated.)
3)Allows a person to bring an action for injunctive relief to
enforce alleged violations of the above prohibition on unfair
or deceptive acts. Also allows a person to bring an action
for damages for such violations, but only if, 30 days or more
before commencing the action, the plaintiff has notified the
alleged violator of the violation and demanded that he or she
correct the violation, and no appropriate correction was made
within 30 days of the notification. (Section 1782.)
COMMENTS : This bill seeks to prohibit private contractors who
contract with public agencies from displaying a seal or emblem
on a uniform or vehicle, as specified, that reasonably could be
interpreted as implying that the contracted labor or services
are being provided by employees of the public agency-unless,
that is, a disclosure statement is also conspicuously displayed
on the uniform or vehicle identifying the private contractor as
"Not A Government Employee." Proposed technical amendments by
the author clarify the author's intent to allow violations of
this bill to be enforced by the remedies provided by the
California Legal Remedies Act.
Stated Need for the Bill. This bill is co-sponsored by the
California Labor Federation and the California Professional
Firefighters. According to the Firefighters:
Public awareness of who is actually providing critical
public services is essential to ensuring accountability.
Indeed, accountability is especially important when public
agency subcontractors seek to convey a particular image or
branded reputation through the use of an agency's "logo."
Every time a public agency firefighter puts on their
uniform, they are representing a proud, highly-skilled
profession. To them, firefighting is more than just a job
- it is a calling that is supported by "gold standard"
training. In building a better fire service for all
Californians, the public fire agency image and reputation
must be preserved. To do this, misrepresentation of the
source of these essential services must cease.
Today, given the growing California subcontracted
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workforce, the relationship between the worker who shows up
at the front door and the company that sent them can be
confusing to California consumers. As such, the state has
a responsibility to prevent unfair or deceptive practices
that may result in confusing Californians when an otherwise
government-provided service is requested or required. And,
when it comes to those who render essential public
services, including critical, property and/or life-saving
services, accountability becomes all the more significant.
This bill seeks to promote transparency and inform the public
through greater disclosure requirements. According to the
author, this bill is needed to ensure that members of the public
can visually distinguish between government employees and
non-government employees who increasingly are subcontracted to
perform traditional public services once almost exclusively the
domain of true public employees. Proponents assert that the
public has the right to know if a particular worker providing a
service that appears public in nature is in fact a public
employee, or is instead an independent contractor, subcontracted
worker, or other non-governmental employee not working for a
public agency. This matters, they contend, because in certain
situations, the public employee is required to have greater
training and is held to a higher degree of accountability to the
public by virtue of being an employee of a public agency, rather
than that of a private employer or as an independent contractor.
Accordingly, the bill seeks to prevent confusion or
misperceptions that result, proponents contend, when private
contractors hired by public agencies perform community work or
services and use uniforms or vehicles appearing very similar to
those used only by employees of the public agency. In those
circumstances, this bill seeks to promote transparency by
requiring the uniform or vehicle conspicuously display a
disclosure that the contractor or employee is not a government
employee.
This bill is opposed by a number of groups representing local
government entities, including, among others, the California
State Association of Counties, the League of California Cities,
and the California Special Districts Association. These
opponents contend generally that the bill is unnecessary and is
a solution in search of a problem, and furthermore, that a
policy of local control that allows similar uniforms and
vehicles to be used by contractors serves a useful purpose.
According to the joint letter submitted by these opponents:
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Many public agencies that contract for services specify
uniform requirements and/or affixing logos to a vehicle in
their written contracts with a service provider. These
uniform requirements are oftentimes done for the purpose of
ensuring that the public knows who the contractor is
serving and for identifying regional operations during a
major disaster or mutual aid request from a public agency.
This bill would eliminate public agencies' ability to
determine what works best locally.
Further, we are unaware of any problems - in general or
specifically -- associated with a private contractor
wearing a similar uniform or having a similar vehicle that
cause confusion for the public and necessitate a need for
this change in law.
As recently amended, this bill conditionally requires specified
disclosures to appear on uniforms and vehicles, but no longer
changes statutory liability provisions related to ostensible
agency. Under this bill as amended June 19, 2013, a person or
company that is a nongovernmental entity and contracts to
perform labor or services for a public agency must abide by
specific disclosure requirements with respect to that entity's
vehicles and uniforms. Unless the vehicle at issue
conspicuously displays the words "THE OPERATOR OF THIS VEHICLE
IS NOT A GOVERNMENT EMPLOYEE," the contracting nongovernmental
entity may not display on the vehicle any seal, emblem, or other
content that "reasonably could be interpreted or construed as
implying that" the service is being provided by a public
employee. Similarly, unless the uniform at issue conspicuously
displays the words "NOT A GOVERNMENT EMPLOYEE", the contracting
entity and its workers are prohibited from wearing any uniform
that displays any seal, emblem, or other content that reasonably
could be interpreted or construed as implying that the labor or
service is being provided by a public employee.
The recent amendments replace the previous contents of the bill,
which would have made public agencies that contract for services
with a contractor jointly and severally liable for any damages
caused during performance of the contract if, at the time of the
damage, the contractor was authorized or required by the public
agency to wear a uniform or operate a vehicle that by its
similar appearance would have caused members of the public to
believe that the contractor was an agent of the public entity.
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In short, the bill no longer provides any rule for ostensible
agency liability, and instead simply requires disclosure
statements on vehicles and uniforms used by nongovernmental
entities if specified conditions are true. Because of these
amendments, the Civil Justice Association of California has
officially removed its opposition to the bill.
As proposed to be amended, this bill incorporates the remedies
of, but no longer amends, the California Legal Remedies Act
(CLRA). According to the author, the June 19, 2013 amendments
that shift the contents of the bill from the Labor Code to the
Civil Code were also intended to incorporate the remedies of the
California Legal Remedies Act (Title 1.5 of Part 4 of the Civil
Code, commencing with Section 1750) for enforcement of
violations of the bill. The CLRA establishes a nonexclusive
statutory remedy for unfair methods of competition and unfair
acts or practices in various consumer transactions, as
specified.
According to the author, the CLRA offers an appropriate set of
remedies for violations of the bill-remedies which prioritize
disclosure and display requirements over the recovery of money
damages. Specifically, the CLRA allows an action for injunctive
relief to enjoin acts that do not comply with the bill, in this
case non-compliance with the uniform and vehicle-related display
and disclosure requirements of the bill. In addition, the CLRA
requires notice and opportunity to correct for a period of
thirty days before any action for damages is allowed, including
cases where the plaintiff seeks to amend a complaint for
injunctive relief to include a request for damages.
In order to achieve the author's stated objectives and properly
apply the remedies provided in the CLRA to violations of this
bill but without altering the CLRA itself, the author proposes
the following technical amendments :
In the title, strike "Section 1771" and insert "Title 18
(commencing with Section 3273) of Part 4 of Division 3 of"
On page 2, line 1, strike "1771" and insert "3273"
On page 2, line 2, strike "1771" and insert "3273"
On page 3, after line 13 insert the following:
"(e) (1) Violations of this section shall be subject to
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the remedies provided in the Consumers Legal Remedies Act
(Title 1.5 (commencing with Section 1750) of Part 4).
(2) The duties, rights, and remedies provided in this
section are in addition to any other duties, rights, and
remedies provided by state law."
OTHER ARGUMENTS IN OPPOSITION : As proposed to be amended, this
bill continues to be opposed by American Medical Response (AMR),
who describes itself as California's largest provider of 9-1-1
emergency ambulance services and private employer of paramedics
and emergency medical technicians (EMT). AMR states:
(The sponsors of the bill) fail to provide any evidence
that the current appearance of our workforce uniforms or
ambulances poses any threat to patient or public safety.
When an AMR crew arrives at the scene of a medical
emergency, it is clear who they work for. Our logo and
name are prominently displayed in multiple locations on
our ambulances. AMR patches are clearly visible on our
crew's uniforms, and the patient ultimately receives a
bill issued by AMR with our phone number and address.
We also receive thousands and thousands of letters every
year from patients thanking us for our services which
clearly indicates the patient was aware that the crew
treating them was working for AMR. In fact, the
utilization of county patches and identifying marks,
which are used in tandem with AMR patches and logos (see
attached images), provide assurance to the patient and
family that we are responding under the authority of the
county, and are licensed to practice medicine in their
jurisdiction. County identifiers also help during
mutual aid and multi-casualty events, and as the
contracted ambulance service provider under FEMA, assist
AMR during mass disaster deployments.
In addition, as one of the largest custodians of State
Disaster Medical Support Units, AMR would need to
consider relinquishing control and responsibility of
these vehicles back to the state rather than incur any
labeling costs or liability associated with the
requirements of this bill. What's more, SB 556 may also
prevent AMR and other providers from establishing mutual
aid agreements with public agencies outside our areas of
operation since there is currently no exception for
mutual aid response, which accounts for thousands of
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emergency calls a year for private emergency ambulance
providers.
Previous Related Legislation : AB 2389 (Lowenthal) of 2012 would
have prohibited a contractor providing services that require
entering the residence or place of lodging of a member of the
public from using a uniform that bears the name or logo of the
contracting entity, unless the uniform meets certain disclosure
requirements. AB 2389 was vetoed by Governor Brown.
REGISTERED SUPPORT / OPPOSITION :
Support
California Labor Federation (co-sponsor)
California Professional Firefighters (co-sponsor)
California Community College Independents
Laborers' Locals 777 & 792
United Transportation Union
Opposition
American Medical Response (AMR)
Association of California Healthcare Districts
California Association of Joint Powers Authorities
California Special Districts Association
California State Association of Counties
City of Thousand Oaks
League of California Cities
Rural Country Representatives of California
CSAC Excess Insurance Authority
Urban Counties Caucus
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334