Flurry of 78 Schwarzenegger Vetoes in Last Two Days: Major Legislation Vetoed Includes Health Care Reform, California Dream Act, Gender Neutral Marriage, Wage Discrimination, Workers' Compensation, ID Theft, and Public Records

According to the U.S. Bureau of Labor Statistics, 72,780 health care workers suffered work-related back or neck injuries in 2005--36,880 more than suffered by construction workers. “Nurses manually lift an estimated 3,600 pounds each shift that they work.” Kaiser Permanente and the Association of Healthcare Districts supported the legislation, in addition to the California Nurses Association. The Governor has vetoed similar legislation in the past.

SB 408 by Senator Jenny Oropeza (D-Long Beach) - State measures: circulators. Prohibits a person from circulating a state initiative or referendum petition unless that person is a voter or was qualified to register to vote in the state at the time of the most recent established election date.

It addressed serious concerns that some paid circulators live in other states and only come to California for a short time to gather signatures. In some cases, they simply establish residence at a hotel and leave soon after the election. It would have providee greater assurance circulators would be around and in the state should signatures be called into question. More importantly, and consistent with the intent of the initiative process, the requirement would have validated that there is a vested California interest in the outcome of any potential initiative.

SB 439 by Senator Ron Calderon (D-Montebello)-Write-in candidates. This bill would have provided that, in the event of a manual recount, provisions of law governing the counting of write-in votes are to be liberally construed to ensure that each ballot is counted if the intent of the voter can be determined, regardless of whether the voting instructions have been literally complied with.

Among the impetus for this bill was the 2004 San Diego Mayor's Race in which Donna Frye was a qualified write-in candidate. When the official canvass of election results was completed, it showed Frye finishing second to incumbent mayor Dick Murphy by 2,108 votes. A recount, requested by media organizations and Frye supporters, uncovered a total of 5,551 ballots in which voters wrote-in Frye's name on the ballot in the correct location but did not darken the oval next to the write-in space.

Had those ballots been counted for Frye, she would have won the election by 3,443 votes. However, the registrar of voters in San Diego County refused to count those votes, citing state law that requires the oval to be filled-in, in order for a write-in vote to count.

According to the Calderon, a voter should not be disenfranchised for failure to follow an instruction so long as his or her intent is clear and nothing is clearer than when a voter writes in the name of the candidate they support.

SB 511 by Senator Elaine Alquist (D-San Jose) - Interrogation: recording. This bill required custodial interrogations of a person suspected of a homicide or a violent felony to be recorded. According to its sponsor, the California Commission on the Fair Administration of Justice, the second most frequent cause of wrongful conviction is the extraction of false confessions during police questioning of suspects. We carried an article on this and two other criminal justice reform measures that were vetoed by John Van de Kamp, a former California Attorney General who chaired the commission.

SB 609 by Senator Gloria Romero (D-Los Angeles) - Criminal procedure: informants. Would have prevented wrongful convictions by banning uncorroborated testimony of an in-custody informant. Part of the criminal justice package we referred to in connection with SB 511 and the article linked to there.

SB 613 by Senator Joe Simitian (D-Palo Alto) - Local governments: vehicle fee for congestion and stormwater management.

SB 622 by Senator Alex Padilla (D-Pacoima) – Employment: misclassification of employees as independent contractors. This would have prohibited willful misclassification of employees as independent contractors and authorized the state to assess civil penalties from persons or employers violating the bill. Willful misclassification of employees as a means for employers to avoid paying workers' compensation insurance premiums, unemployment insurance or employment taxes, overtime, and other employee-related benefits and costs is a rampant problem in California.

Employees are hurt by employment misclassification, but we all are because good-actor employers and the state are foot the bill when there is misclassification. It is estimated that the state underground economy is between $60 and $140 billion, which translates into billions of lost tax revenues, billions in lost wages for workers, and billions in additional workers' compensation premiums and tax payments borne by those employers who pay their fair share

SB 727 by Senator Sheila Kuehl (D-Santa Monica) - Unemployment and disability compensation benefits: family temporary disability insurance (FTDI) This bill would have allowed employees covered by the FTDI program to take paid leave to take care of grandparents, grandchildren, siblings, and parents-in-law. This is important given California's diverse population which includes a variety of familial arrangements with unique care giving needs.

SB 756 by Senator Mark Ridley-Thomas (D-Los Angeles) - Criminal investigations: eyewitness identifications. Under this bill, the California Department of Justice would have developed guidelines for the collection and handling of eyewitness evidence in criminal investigations by all law enforcement agencies in the state.

SB 801 by Senator Mark Ridley-Thomas (D-Los Angeles) - Chiropractors. This would have placed a legislative proposition on the statewide ballot for approval by the voters to amend the Chiropractic Initiative Act of California to bring the State Board of Chiropractic Examiners under the Department of Consumer Affairs. Sponsored by the Center for Public Interest Law it arose out of scandals that were widely reported earlier in the year.

SB 832 by Senator Ellen Corbett (D-San Leandro) - Postsecondary education: textbooks. "The College Textbook Affordability Act," sponsored by CalPirg.

SB 836 by Senator Sheila Kuehl (D-Santa Monica) - Fair employment: familial status. Would have included "familial status" in the list of prohibited bases for employment discrimination.

SB 936 by Senator Don Perata (D-Oakland) – Workers' compensation: permanent disability schedule. Benefits paid to permanently injured workers have been cut by an average of 50%. This bill would have recovered these benefits over a three-year period.

SB 942 by Senator Carole Migden (D-San Francisco) – Workers' compensation: disability. Would have removed impediments to eligibility for supplemental job displacement (retraining) benefits for workers physically unable to return to their old line of work. Permanent disability benefits have been reduced so significantly that some employers find it cheaper to keep workers on PD than put the worker back to work. This bill, supporters say, would have reduced conflict between employers and employees by providing clear rules for the return to work process.

AB 43 by Assemblymember Mark Leno (D-San Francisco) - Gender-neutral marriage. The Religious Freedom and Civil Marriage Protection Act. The latest Schwarzenegger veto of bills that would have allowed same sex marriage.

AB 44 by Assemblymember Tony Mendoza (D-Artesia) - Absentee voters: ballot materials. Would have require that all new voter registration cards contain a box to check to become a permanent absentee voter and require that ballots sent to absentee voters be accompanied by a sample ballot or a voter's pamphlet that contains candidates' statements

AB 45 by Assemblymember Sandré Swanson (D-Oakland) - Oakland Unified School District: governance. Would have required a set of performance evaluations conducted by an independent expert where positive evaluations would trigger the return of areas of responsibility to the OUSD Board.

AB 48 by Assemblymember Lori Saldaña (D-San Diego) - Hazardous waste: electronic equipment. According to the United States EPA, about 70% of the toxic heavy metals found in landfills come from electronic waste. This bill would have expanded the scope of electronic products that would be banned from being manufacturing for sale in California if they are banned from sale in the European Union.

AB 122 by Assemblymember Jose Solorio (D-Anaheim) - Voter intimidation: candidate notification. Would have required elections officials to provide a copy of the provisions of law prohibiting voter intimidation and voter fraud, and the penalties for violating those provisions, to an individual at the time they are issued their declaration of candidacy or nomination.

Although California has strict voter intimidation laws based on federal election law, many candidates for elected office are not fully aware of these laws. In October of 2006, a letter was sent out by the campaign of a Congressional candidate to some 14,000 Latino voters in Orange County in an attempt to deter them from voting in the November election. The letter incorrectly stated that 'you are advised that if your residence in this country is illegal or you are an immigrant, voting in a federal election is a crime that could result in jail time, and you will be deported for voting without having a right to do so.' This statement is extremely misleading at best because immigrants can vote if they become citizens.

AB 124 by Assemblymember Curren Price (D-Inglewood) - Meal and rest periods. Would have extended laws on meal and rest periods to pool lifeguards and stage assistants employed in the local public sector. In the private sector, employers have specific requirements to provide meal and rest periods and are prohibited from employing workers for periods longer than five hours without providing them with a meal period of not less than 30 minutes.

AB 377 by Assemblymember Juan Arambula (D-Fresno) - Labor contractors. Would have required an employer who is a farm labor contractor to disclose in the itemized statement furnished to employees up to five names and addresses of the legal entities that secured the employer's services.

According to the sponsor of the bill, the California Rural Legal Assistance Foundation more than 40,000 California farms grow fruits and vegetables on almost four million acres in this state, so it is not surprising that a 2006 survey of Central Valley farm workers found that 70% could not identify the name of the farm they were working on.

The same survey found that 56% had not been paid the minimum wage when working on a piece rate; 31% had not been paid all the overtime they were owed; and that 42% had unexplained deductions made from their pay. Between 60% and 80% of harvest work is done by labor contractors. Without being able to readily identify the farm who hired the contractor, enforcement actions against the contractor are unlikely to either make the worker whole for wages owed or to have any deterrent effect at all against a grower who shares legal responsibility for the contractor's labor law violations.

AB 435 by Assemblymember Julia Brownley (D-Santa Monica) – Wage discrimination. Extends the statute of limitations for an employee to file a civil action against an employer for wage discrimination and extends the time period that an employer is required to maintain wage and job classification records. In the Ledbetter case, the US Supreme Court determined that the clock in a discriminatory pay case starts running when the employer makes a pay decision, not each time the employee receives a smaller paycheck because of that decision.

Even decades after the passage of state and federal wage discrimination laws, women continue to suffer disparities in wages. Women are often unaware that they are being discriminated against in respect to their wages and may lose the opportunity to file a civil action or may be limited to inadequate recovery because of the limited statutory period.

AB 484 by Assemblymember Pedro Nava (D-Santa Barbara) - Landfill disposal: concrete. To promote the use of recycled concrete and asphalt, reduce landfill waste, and help municipalities meet landfill diversion goals.

AB 504 by Assemblymember Sandré Swanson (D-Oakland) – Lockouts. Requires restitution for employees whose employer commits crimes during a lockout.

Sponsored by the United Food and Commercial Workers Union (UFCW) who argues that in 2003, the Ralphs supermarket chain engaged in nefarious activities during a lockout of nearly 20,000 employees for over four months. This was the longest and largest labor dispute involving a grocery union in American history. In 2005, the Department of Justice indicted Ralph's, alleging that the company engaged in a company-wide course of criminal conduct involving the hiring of certain locked-out workers under false names, social security numbers, and supporting documentation. According to the indictment, the company issued thousands of paychecks to falsely-identified employees and allowed the workers to cash the checks at its stores.

AB 684 by Assemblymember Mark Leno (D-San Francisco) - Industrial hemp. Industrial Hemp products are legally sold in all 50 states and grown and processed throughout the world. This bill would have allowed it to be grown in California.

AB 773 by Assemblymember Sam Blakeslee (R-San Luis Obispo) - Elections: absentee ballots. Would have allowed an absentee voter to return his/her ballot to any member of a precinct board at any polling place within the state, not just one within the jurisdiction of the elections official who issued the ballot

AB 779 by Assemblymember Dave Jones (D-Sacramento) - Personal information: state agencies and businesses. According to the Jones and the sponsor, the California Credit Union League, this bill makes needed improvements to California's landmark data breach notification law.

AB 1043 by Assemblymember Sandré Swanson (D-Oakland) - Employment contracts. Prohibits any choice of law clause, venue-selection clause, or forum-selection clause in binding employment materials that are imposed on an employee as a condition of employment. This would have prevented unscrupulous employers from evading California's strong worker protection laws and assured adequate access to an in-state forum for all California workers. Forum selection clauses and choice of law clauses pose a particularly acute problem for lower income workers and disabled workers.

AB 1045 by former Assemblymember Laura Richardson (D-Long Beach, now in Congress) - Occupational safety and health: working conditions. Indoor heat illness prevention standards. Workers in a variety of industries are exposed to hot or hot and humid environments such as: warehouses, steel foundries, brick firing and ceramics operations, and the like. Yet employers are under no current regulatory obligation to provide water, a cool place to rest, or any other protective or preventative services for heat illness in indoor working environments.

Recently, regulations were adopted for heat illnesses due to outside work at the request of the United Farm Workers. This would have dealt with similar problems workers face working indoors.

AB 945 by Assemblymember Wilmer Amina Carter (D- Rialto) - Transportation needs assessment. Would have included public transit in these assessments in accord with a 2004 recommendation by the Legislative Analyst's Office (LAO). In its recommendation, the LAO said: "The first step in identifying a solution to a problem is identifying the scope of the problem. Yet, when it comes to transportation, there is currently no requirement that Caltrans or any other state entity assess and report on the state's overall transportation needs on a regular basis.

AB 1142 by Assemblymember Mary Salas (D-Chula Vista) - Hospice care. This bill would have required the Department of Public Health to select and distribute end-of-life and palliative care model programs to nursing home and residential care for the elderly facilities.

The Association of Regional Center Agencies (ARCA) stated that this bill was critical to the sensitive care and treatment of people with disabilities at the end of their lives and that it would help ensure that SNFs are equipped with information to better provide end-of-life treatment to their patients and make the option of hospice care available as a choice. The California Commission on Aging stated that, by requiring DPH to disseminate information about new approaches to end-of-life and palliative care, this bill would help to make these innovative services more available to patients.

AB 1151 by Assemblymember Ted Lieu (D-Torrance) - Voter registration. Would have required county registrars to have a website or phone number so those who have filled out registration cards can check to see if they were in fact one turned in or received and that they are in fact registered to vote.

AB 1167 by Assemblymember Pedro Nava (D-Santa Barbara) - Absentee ballots: voting by mail. Required county elections official to negotiate with the United States Postal Service to ensure that all absentee ballots will be delivered to the elections official regardless of whether sufficient postage is provided.

AB 1393 by Assemblymember Mark Leno (D-San Francisco) - Public records. Required any state agency that publishes an Internet Web site to include on the homepage of that site information that is not exempt from disclosure under the Public Records Act about how to contact the agency, how to request records under the act, and a form for submitting online requests for records.

AB 1542 by Assemblymember Noreen Evans (D-Santa Rosa) - Mobilehome parks: conversions. Maintained local rent control on lots that are not purchased by residents within a mobilehome park that converts to resident ownership.

AB 1636 by Assemblymember Tony Mendoza (D-Artesia) – Workers' compensation: supplemental job displacement benefits. Required an injured employee to receive a voucher for supplemental job displacement benefits (job retraining) under the workers' compensation system within 74 days of the determination that the disability is permanent and stationary, if the employee has not been offered alternative employment or returned to work within 60 days of the disability becoming permanent and stationary.

After today's vetoes, we will be providing more information and analyses and we welcome articles by legislators and organizations that have supported vetoed bills--and those signed as well.