BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SB 556 (Padilla)
As Amended August 21, 2014
Hearing Date: August 28, 2014
Fiscal: No
Urgency: No
TMW
PURSUANT TO SENATE RULE 29.10
SUBJECT
Providers of Health and Safety Labor or Services:
Identification
DESCRIPTION
This bill would make it unlawful for a public health and safety
labor or services contractor to display on a vehicle a logo of
the contracting public agency or wear a uniform bearing a logo
of the public agency, unless additional disclosures, as
specified, are also displayed. This bill would also make it
unlawful to require a person or employee of a nongovernmental
agency contracted to provide public health and safety labor or
services to wear a badge containing the logo of the public
agency. This bill would provide remedies under the California
Legal Remedies Act for violations of its provisions. This bill
would apply to all contracts for labor or services entered into
on or after January 1, 2015.
BACKGROUND
A growing trend in California's work force is the use of
independent contractors, who contract with another entity to
perform services for consumers on behalf of that entity.
At times, the contracting entity may require the independent
contractor to wear a uniform or display a logo of the principal
so that the consumer receiving the services can identify that
the independent contractor has been sent by the principal to
perform the services requested by the consumer. When a public
entity has contracted for public health and safety services,
such as fire protection and ambulance services, the risk
(more)
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associated with providing these services is high and creates
potential harm to the consumer. Yet, as with many contracting
arrangements, the consumer receiving the services is neither
informed that an independent contractor is performing services
on behalf of the public agency, nor informed who may be
responsible to the consumer if something unexpected occurs to
the detriment of the consumer.
In 2012, AB 2389 (Lowenthal, 2012) sought to address this issue
by prohibiting a contractor providing services that require
entry into the residence or place of lodging of a member of the
public from utilizing a uniform that bears the name or a logo of
the contracting entity, unless each uniform meets certain
disclosure requirements. That bill, which applied to
contractors providing services relating to public health or
safety services, was vetoed by Governor Brown, who agreed the
topic required greater scrutiny but was unclear how requiring
logos on uniforms and vehicles solved the problem.
This bill, sponsored by the California Firefighters Association
and the California Labor Federation, would make it unlawful to
require a nongovernmental contractor or employee providing
public health and safety labor or services to display a public
agency logo on a vehicle or uniform unless the display includes
specified disclosures.
This bill would provide remedies under the California Legal
Remedies Act for violations of the prohibition and would apply
to all contracts for labor or services entered into on or after
January 1, 2015.
This bill, when previously reviewed by this Committee, would
have provided that a person or entity, who enters into a
contract or agreement for labor or services with a contractor,
is liable for any damages caused by the contractor or
contractor's employee for work performed under the contract if,
at the time of the damage, the contractor or contractor's
employee wore a uniform that is substantially similar to the
uniform of the person or entity or the contractor or the
contractor's employee operated a vehicle that displayed the logo
of the person or entity. This bill was significantly amended in
the Assembly to provide a different approach to resolve the same
issue and is now before the Committee pursuant to Senate Rule
29.10.
CHANGES TO EXISTING LAW
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Existing law , the California Legal Remedies Act (CLRA), protects
consumers against unfair and deceptive business practices and
provides efficient and economical procedures to secure such
protection. (Civ. Code Sec. 1760.)
Existing law enumerates various unfair methods of competition
and unfair or deceptive acts or practices, including passing off
goods or services as those of another, misrepresenting the
source, sponsorship, approval, or certification of goods or
services, and misrepresenting the affiliation, connection, or
association with, or certification by, another. (Civ. Code Sec.
1770(a)(1-3).)
Existing law provides that any consumer who suffers any damage
as a result of the use or employment by any person of a method,
act, or practice declared to be unlawful by the CLRA may bring
an action against that person to recover or obtain any of the
following:
actual damages, but in no case shall the total award of
damages in a class action be less than $1,000;
an order enjoining the methods, acts, or practices;
restitution of property;
punitive damages;
any other relief that the court deems proper; and
court costs and attorney's fees. (Civ. Code Sec. 1780 (a),
(e).)
This bill would make it unlawful for a person, firm,
corporation, or association that is a nongovernmental entity and
contracts to perform labor or services relating to public health
and safety for a public agency to display on a vehicle a logo of
the public agency 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 a statement indicating that the
contractor is the service provider, contractor, or other
appropriate descriptor, such as "SERVICE PROVIDED BY:" or
"CONTRACTED BY:", immediately followed by all of the following:
the logo and the name of the person, firm, corporation, or
association that is the nongovernmental entity providing
public health and safety labor or services for the public
agency; and
the state, or if outside of the United States, the country
where the nongovernmental entity's controlling person, firm,
corporation, or association is legally incorporated,
organized, or formed.
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This bill would make it unlawful for a person or an employee of
a person, firm, corporation, or association that is a
nongovernmental entity and contracts to perform public health
and safety labor or services for a public agency to wear a
uniform bearing a logo of the public agency 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 uniform conspicuously displays the logo and the name
of the person, firm, corporation, or association that is the
nongovernmental entity providing the labor or services for the
public agency.
This bill would provide that the above disclosures would apply
to all labor or services provided pursuant to a contract entered
into on or after January 1, 2015.
This bill would make it unlawful for a public agency to require,
through a contract with a person, firm, corporation, or
association that is a nongovernmental entity providing public
health and safety labor or services, a person or employee of the
nongovernmental entity to wear a badge containing the logo of
the public agency.
This bill would make it unlawful for a person, firm,
corporation, or association that is a nongovernmental entity
contracting to perform public health and safety labor or
services for a public agency, to require a person or its
employee to wear a badge containing the logo of the public
agency.
This bill would provide 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.
This bill would provide that if a vehicle or uniform displays
more than one logo referring to the public agency, then the
required disclosure shall be placed near the largest logo
referring to the public agency.
This bill would not apply the disclosure requirements above to
uniforms or vehicles if the person, firm, corporation, or
association that is the nongovernmental entity is providing tow
truck labor or services for a public agency.
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This bill would not apply to a public agency vehicle utilized by
the nongovernmental entity during a declared state or federal
disaster, mass-casualty incident, or other incident that
requires the use of state or federal resources when the public
agency requires the use of the public agency vehicle.
This bill would provide that violations would be subject to the
remedies provided in the CLRA, and the duties, rights, and
remedies are in addition to any other duties, rights, and
remedies provided by state law.
This bill would provide the following definitions:
"conspicuously displays" means to display a disclosure on the
exterior of a vehicle or uniform in the same location as the
logo of the public agency, placed prominently as compared with
other words, statements, or designs displayed in connection
with the logo of the public agency; with respect to a uniform,
"in the same location" includes, but is not limited to, a
location on the opposing shoulder, pocket, or similar opposing
location relative to the location of the logo of the public
agency;
"logo" means a symbol, graphic, seal, emblem, insignia, trade
name, brand name, or picture identifying a person, firm,
corporation, association, or public agency; however, "logo"
would not mean the name of a public agency used alone;
"public agency" means a state entity, a city, county, city and
county, special district, or other political subdivision of
the state; and
"public health and safety labor or services" means fire
protection services, rescue services, emergency medical
services, hazardous material emergency response services, and
ambulance services.
COMMENT
1. Stated need for the bill
The author writes:
California's public health and safety agencies understand the
importance of measuring up to an image and reputation. When
providing these services - whether delivered by the public
agency or a private contractor - the actual service provider
conveys an image and a brand through the use of a uniform or
vehicle that, under an implied color of authority, seeks to
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achieve a level of public trust and confidence.
The public holds governmental health and safety services in
high esteem, and likewise expects and deserves a high level of
service delivery. Traditionally, these governmental services,
like fire protection and law enforcement, are provided by our
public agencies and public perception reflects that reality.
Compliance with SB 556 ensures that the public is aware of who
is providing the service, which will certainly facilitate the
provision of excellent public health and safety services to
all Californians. The image and reputation of the public
agency and the private provider will be clearly reflected,
which will benefit both parties as well as the taxpayers who
rely upon the efficient delivery of these critical services at
the scene of an emergency.
SB 556 would prohibit nongovernmental entities contracting to
perform public health and safety labor or services for public
agencies from displaying a logo of a public agency on a
uniform or vehicle, as specified, unless a disclosure
statement is also displayed identifying the identity of the
uniform wearer or vehicle operator providing services for the
public agency.
The California Professional Firefighters, co-sponsors, write:
SB 556 provides for important disclosure requirements when
a public health or safety service is provided by a private
contractor who utilizes the logo and appearance of the
public agency they are contracting with. This bill is
essentially a "truth in labeling" measure that exhibits a
clear picture of the relationship between the public safety
worker who shows up at an incident and the company that
sent them there. SB 556 affords this important consumer
protection by requiring that specified uniforms or vehicles
clearly identify the provider of critical public health and
safety services.
Public health and safety services are taxpayer-supported
services. When the public sees public agency markings on a
service provider's vehicle or uniform, like those of
firefighters or law enforcement, the reinforced presumption
is that the service is being provided by a public agency
and its employees. Public awareness of who is actually
providing critical public health and safety services,
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public or private, is essential to ensuring accountability
and excellent service delivery. From a consumer
standpoint, if the person delivering services on behalf of
a particular public agency doesn't actually work for that
agency, there exists no public policy interest in shielding
from the consumer the identity of the actual service
provider.
2. Prohibiting display of public agency logo on contractor
vehicles and uniforms
Existing law, the Consumer Legal Remedies Act (CLRA), provides
protection from various unfair methods of competition and unfair
or deceptive acts or practices, including passing off goods or
services as those of another, misrepresenting the source,
sponsorship, approval, or certification of goods or services,
and misrepresenting the affiliation, connection, or association
with, or certification by, another. (Civ. Code Sec.
1770(a)(1-3).)
This bill would make it unlawful for a public health and safety
labor or services contractor to display on a vehicle a logo of
the contracting public agency or wear a uniform bearing a logo
of the public agency, unless additional disclosures, as
specified, are also displayed. This bill would also make it
unlawful to require a person or employee of a nongovernmental
agency contracted to provide public health and safety labor or
services to wear a badge containing the logo of the public
agency.
According to the author, this bill is necessary 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 in the domain of public
employees. Proponents assert that this bill would prevent
confusion or misperceptions that result 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. 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.
3. Remedies under the CLRA
This bill would provide remedies under the CLRA for violations
of this bill. The CLRA provides that any consumer who suffers
any damage as a result of the use or employment by any person of
a method, act, or practice declared to be unlawful by the CLRA
may bring an action against that person to recover or obtain any
of the following: actual damages, but in no case shall the total
award of damages in a class action be less than $1,000; an order
enjoining the methods, acts, or practices; restitution of
property; punitive damages; any other relief that the court
deems proper; and court costs and attorney's fees. (Civ. Code
Sec. 1780 (a), (e).)
Laborers' Locals 777 & 792, in support, argue that "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." By providing
consumers an appropriate legal remedy under the CLRA, this bill
seeks to discourage improper mislabeling of a contractor
providing public health and safety services to consumers.
4. Opposition concerns
A coalition of business groups are opposed to this bill and
assert that the badge restrictions will compromise the safety of
patients and hospital employees. They note that the California
Department of Public Health requires all hospital employees who
come into contact with patients to wear an identification tag
bearing their name and vocational classification. The coalition
asserts that it is in the best interest of the communities
served by local healthcare facilities to ensure that only
appropriate staff, identified by their security badges, have
access to secure areas. Lastly, the coalition argues that
public agencies affected by the "overreaching aspects of SB 556
remain unaware of any need for this legislation."
The California Ambulance Association (CAA), also in opposition,
asserts that this bill would require emergency ambulance service
providers to incur large costs to redesign the look of
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ambulances and uniforms, which "would be superfluous as there is
no documentation of uniforms or ambulance appearance posing any
risk to patient or public safety." CAA notes that existing law
prohibits false or misleading advertisements and the
impersonation of a licensed individual, and criminal law
protects consumers from a person posing as an emergency
responder. CAA further argues that this bill "is redundant and
conflicts with current state statutes and county Local EMS
Authority oversight. California ambulance companies are
struggling to stay in business as Medi-Cal reimbursements have
been cut to debilitating lows. Uniform and ambulance labeling
restrictions only deflect attention from true issues ailing
emergency service providers and we cannot afford further
unnecessary costly regulations. California's Medi-Cal
reimbursement rates are the third lowest in the nation and
provide roughly one-quarter reimbursement of the actual costs of
providing EMS services."
Several cities are opposed to this bill and argue that it places
costly, unwarranted uniform and vehicle requirements on service
providers that contract public agencies. These cities assert
that outsourcing some functions can maximize scarce resources,
and they rely on contract service providers to not only improve
efficiencies but also allow these cities to address peaks and
valleys in workloads. These cities assert that this bill is a
solution in search of a problem, and they are unaware of any
problems, either in general with public confusion due to uniform
or vehicles driven that would necessitate the need for this
bill. Further, these cities argue that requiring "contracted
by" or "serviced by" plus additional text to be placed on
official local uniforms will cause more confusion and concern,
rather than relieve it.
5. Governor's veto of AB 2389
This bill is similar to AB 2389 (Lowenthal, 2012). In vetoing
AB 2389, Governor Brown stated:
This is a bill that ultimately is about the growing practice
of subcontracting in the service industry. I agree that this
is a topic that requires greater scrutiny - and more detailed
information.
It is not clear to me that requiring logos on uniforms and
vehicles solves any problems, but it may spawn confusion and
some costs. I think we need to know more before prescribing
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practices such as those suggested by this bill.
Support : California School Employees Association AFL-CIO;
Laborers' Locals 777 & 792
Opposition : Association of California Healthcare Districts;
California Ambulance Association; California Contract Cities
Association; California Special Districts Association;
California State Association of Counties; City of Cerritos; City
of Claremont; City of Diamond Bar; City of Indian Wells; City of
La Mirada; City of Lakewood; City of Los Alamitos; City of
Newport Beach; City of Orland; City of Pomona; City of Rancho
Cucamonga; City of Rancho Palos Verdes; City of Roseville; City
of Selma; City of Thousand Oaks; City of Torrance; City of
Winters; International Association of EMTs and Paramedics;
League of California Cities; NAGE/SEIU Local 5000; Paramedics
Plus; Rural County Representatives of California; Schaefer
Ambulance Service; Town of Danville; Urban Counties Caucus;
Veolia Transdev
HISTORY
Source : California Labor Federation; California Professional
Firefighters
Related Pending Legislation : None Known
Prior Legislation : AB 2389 (Lowenthal, 2012) See Background;
Comment 5.
Prior Vote :
Assembly Floor (Ayes 43, Noes 24)
Assembly Committee on Judiciary (Ayes 7, Noes 3)
Senate Floor (Ayes 24, Noes 13)
Senate Committee on Labor and Industrial Relations (Ayes 4, Noes
0)
Senate Committee on Judiciary (Ayes 5, Noes 1)
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