A review of small business victories and disappointments
The following highlight NFIB’s legislative lobbying efforts for small business in 2020. Click here to see 2019’s legislative victories.
The Big Victories
- Bad enough that California has no tax code conformity with the small-business benefits created by the federal Tax Cuts and Jobs Act, but not having the state’s tax code conform to the federal CARES Act, too, added to the frustration. The Act’s Paycheck Protection Program was designed to help businesses stay afloat during the coronavirus crisis, but once again state and federal tax codes did not align, until Assembly Bill 1577, which NFIB pushed for, passed the Legislature and was signed into law by the governor. Now, thousands of California’s small businesses will not have to face surprise tax bills and administrative burdens.
- Also signed into law by the governor was Senate Bill 1447 that extends tax credits to businesses that had 100 or fewer employees as of last December and that saw their gross receipts shrink by at least 50 percent between April 1 and June 30. It provides a credit of $1,000 per qualified employee and caps it at $100,000 per employer.
- Thanks to a loud and forceful push-back from NFIB and others in the business community (read NFIB’s news release here), Assemblyman Mark Stone three days before the end of the session threw in the towel on his Assembly Bill 3262. As more small businesses take to online retailing to survive, the importance of this victory cannot be overstated. AB 3262 would have imposed product liability for online retail marketplaces. In NFIB’s last survey of its membership, 14% of small-business owners have increased their dependence on online sales to cope with lost sales from the pandemic, and that number is expected to grow. (Scroll down to Question 28). No help from Amazon, the target of AB 3262, it submitted a letter of support for the measure.
- Once again, NFIB succeeded in helping defeat Sen. Hannah-Beth Jackson’s second attempt to pass a gender-based pricing bill. Her Senate Bill 873 would “prohibit a business establishment from discriminating against a person because of a person’s gender with respect to the price charged for any 2 consumer products from the same manufacturer that are substantially similar if those products are priced differently based on the gender of the individuals for whose use the products are intended or marketed, as specified.” Or, as one public affairs firm put it, “a pink bike helmet should not cost more than the same blue bike helmet.”
- Thanks to early spadework by NFIB and its partners, Sen. Connie Leyva’s predictive scheduling bill (SB 850) got off to a flying halt. It would have required restaurants, grocery stores, and retail establishments “to provide its employees with a work schedule at least 7 calendar days prior to the first shift on that work schedule … [and] pay its employees modification pay for each previously scheduled shift that the employer cancels or moves to another date.”
- Assembly Bill 1107, which would have raised unemployment payments by $600 a week, was stopped. Had it passed, the measure would have cost employers $40 billion over the next 10 years. NFIB publicly opposed this small business tax increase.
- On the COVID-19 front, Assembly Bill 196 would have created a “conclusive presumption” that certain essential workers who became ill with the coronavirus were exposed to it at work, but NFIB and other business groups succeeded in persuading lawmakers of the difficulty of proving such a claim. Seeing an appetite among a lot of legislators to do something about this issue, nevertheless, the business community coalesced around Senate Bill 1159, which creates a “rebuttable presumption,” giving employers the opportunity to show that the exposure was not work-related. (SB 1159 awaits the governor’s signature or veto; AB 196 died in the Senate)
- Rarely do bills offer their own up-front advertising on why they need to be defeated. The forever open-ended regulatory nightmare Senate Bill 54 and Assembly Bill 1080 called for were two such measures. “This bill enacts the California Circular Economy and Plastic Pollution Reduction Act (Act), which would impose a comprehensive regulatory scheme on producers, retailers, and wholesalers of single-use packaging, as defined, and priority single-use products, as defined, to be administered by the Department of Resources Recycling and Recovery (CalRecycle),” according to the Legislature’s own bill analysis. Read correctly, NFIB pointed out, the measures would apply to products that don’t yet exist. With the help of NFIB, both measures died.
The Big Disappointments
- Senate Bill 1383 passed and is expected to be signed into law by Governor Newsom, who, pre-coronavirus, made the issue one of his agenda items. It would allow an employee to take up to 12 workweeks of unpaid, job-protected leave during a 12- month period for specified family care and medical leave reasons; guarantee reinstatement to the same or comparable position, as specified; and continue group health coverage during the duration of the leave. The bill would apply to businesses with five or more employees. NFIB opposed the bill because 73% of small-business owners already offer paid time off and for any reason and in the best way possible: Tailored to the individual needs of the employee, not through an ill-fitting state mandate. How small-business owners are expected to cope with this new requirement in an economic recession remains to be seen. (Signed by governor, September 17)
- Assembly Bill 3216 also passed the Legislature. It will expand leave and job protections for employees during a state of emergency, including leave under the California Family Rights Act (CFRA), paid sick leave, and rehire rights for workers. Despite its lofty promises about ‘protecting workers,’ AB 3216 is part of a longstanding effort by organized labor to enact legislation to protect incumbent unions. (The governor returned it to the Legislature without his signature. Read his rejection letter here.)
- Another huge disappointment was the passage of Assembly Bill 685, which, among other things, would require employers to take six actions within 24 hours of knowing, “or reasonably should have known,” an employee was exposed to COVID-19. NFIB reminded lawmakers that many businesses and their owners are themselves casualties of this economic shutdown. The solution is not to saddle them with a new and unworkable mandate that will slow their recovery and re-opening and subject them to extensive new civil and PAGA liability at the worst possible moment. (Signed by the governor, September 17)
- Labor wins another. Senate Bill 729 by Democratic Senator Anthony Portantino would have made a common-sense exemption in the Sue Your Boss law by prohibiting an employee from claiming civil penalties from their employer under the Private Attorneys General Act for meal and rest breaks if the employee was working from home. The bill failed for lack of motion in the Assembly Labor Committee.
- An equally huge disappointment for small business was the failure of legislators to come up with any liability protection against frivolous coronavirus lawsuits claiming infection from a place of business. Assembly Bill 1035, which NFIB California co-sponsored and would have provided some small businesses with liability protection against nearly unprovable COVID-19 lawsuits, was effectively killed by the Senate Judiciary Committee on July 25 when it decided against holding a hearing on it. The bill’s sponsors were Democrat Assemblyman James Ramos of Highland and Assemblyman Chad Mayes, an independent from the Yucca Valley. In an interview for Politico, State Director John Kabateck called it a proposal with great promise. Kabateck and Ramos jointly penned an editorial on the issue.
Happy for Them
- Throughout the 2019-2020 legislative session, NFIB maintained a steadfast opposition to supporting any one group of independent contractors carving out an exemption from Assembly Bill 5 for themselves, believing that all independent contractors should be exempted.
- NFIB did lobby for passage of Assembly Bill 1928, which called for the repeal AB 5 and a return to the classification tests under the Borello decision, and for passage of Assembly Constitutional Amendment 19, which would enshrine the right to earn a living into the California Constitution, and for Assembly Bill 1925, which would put small businesses out of harm’s way from AB 5.
- Although NFIB did not lobby for Assembly Bill 2257 or Assembly Bill 323, we are happy to see the following independent contracting jobs allowed to escape from Assembly Bill 5:
o graphic design
o web design
o youth sports coaching
o wedding planning
o wedding and event vending
o yard cleanup
o interpreting and translating services, as defined.
o newspaper carriers
o newspaper distributors