The Associated Builders and Contractors of California Cooperation Committee Inc. (ABC-CCC) was found by the U.S. District Court for the Southern District of California to lack standing to press its equal protection claim where they challenged an amendment to the California labor code that permits employers to take a wage-credit only with employee consent because SB 954 (Senate Bill 954) is neither anticipated by the National Labor Relations Act (NLRA) nor does it overstep the ABC-CCC’s 1st Amendment rights because it does not prevent employers or employees from speaking about any issue, and their action was dismissed.
Interpipe Contracting Inc. (represented by David Wolds of San Diego) and ABC-CCC (represented by Anastasia P. Boden of Sacramento) filed a suit against several state officials (represented by Ken Lau of Oakland) claiming SB 954, enacted in 2017, violates their constitutional rights by discriminating against places of employment at which one is not required to join or financially support a union as a condition of hiring or continued employment.
SB 954 requires that before engaging in a mediation or mediation consultation, an attorney representing a client must provide the client with a written disclosure containing the mediation confidentiality restrictions provided in the Evidence Code. The bill requires that the attorney obtain a written acknowledgment, signed by the client, which states that the client has read and understood the confidentiality restrictions. However, an agreement prepared during a mediation would remain valid even if an attorney fails to comply with the disclosure requirement. The bill would also add to the mediation privilege of Evidence Code section 1122 any communication, document, or writing that is to be used in an attorney disciplinary proceeding to determine whether an attorney has complied with the above requirements and does not disclose anything said or done or any admission made in the course of the mediation. (https://www.calpeculiarities.com/tag/sb-954/)
Interpipe and ABC-CCC claim that the law deals with a labor issue intended by Congress to be left to the free play of market forces and is preempted by the NLRA’s ban on regulating non-coercive labor speech. They further allege that SB 954 infringes on their 1st Amendment rights to free speech and violates the Equal Protection Clause.
In the U.S. Circuit Court of Appeals opinion, Judge Consuelo M. Callahan stated that the plaintiffs had misunderstood the purpose of the law. Going on to say that SB 954 is part of a larger statutory scheme setting a wage floor for employees on public works projects and while not singling out open-shop industry advancement funds (IAFs), it only indirectly affects one of the many revenue sources for IAFs.
ABC-CCC was said to now be able to explore alternative means of raising funds to finance its speech, but this does not mean that the minimum wage law has been changed into a “regulation of expressive conduct.” Even though these IAFs are allowed, the state has no right to subsidize speech which would have been an infringement on their 1st Amendment rights.Not sure what your rights are as an employer? Allow Rupal Law to help you stay ahead of any recent amendments to the labor codes of California. A consult package with Rupal Law gives you the peace of mind of knowing your legal support and guidance is just a phone call away. Contact us today to learn more and take the first step towards compliance knowledge and avoidance of unexpected legal fees. www.rupallaw.com
