AB5 Perspective

[mpallamary]

In the grand scheme of things, most taxpayers and surveyors would agree that one of the biggest problems for the homeowner and the land surveying community, is the destruction of survey monuments. This destruction is generally at the hands of careless municipalities that simply do not care. Despite the fact that the destruction of survey monuments is a misdemeanor, no one is ever prosecuted. One Southern California municipality has destroyed or paved over thousands of monuments, all of which are documented, and nothing happens. Brethren protecting brethren; it is that simple.

Despite the fact that this is illegal, these cities and those in responsible charge of these agencies are never prosecuted, even though the city attorney and county counsel are supposed to enforce these laws.

Along comes AB5, and all of the sudden, we have the city attorney of Alameda, Los Angeles and San Francisco, issuing press releases about how they intend to prosecute anyone who violated SB5 - that includes land surveyors and geologists.

There is something fundamentally wrong with a system that will focus its resources on the small business owner for failing to comply with this new law, while systematically refusing to prosecute crimes that have a huge impact on the state of California by segregating private sector land surveyors.

Here’s the amendment added to AB5:

In addition to any other remedies available, an action for injunctive relief to prevent the continued misclassification of employees as independent contractors may be prosecuted against the putative employer in a court of competent jurisdiction by the Attorney General or by a city attorney of a city having a population in excess of 750,000, or by a city attorney in a city and county or, with the consent of the district attorney, by a city prosecutor in a city having a full-time city prosecutor in the name of the people of the State of California upon their own complaint or upon the complaint of a board, officer, person, corporation, or association.

The Alameda City Council unanimously approved on Sept. 3 the creation of a city prosecutor position under the supervision of its city attorney. But under the current setup, Alameda would not be able to prosecute employees alleged to have violated AB5 without the consent of the Alameda County District Attorney’s office.

Changes to the city’s charter Alameda officials is currently under discussion and now include the question of giving the new city prosecutor more fulsome authority to go after not only those who flout AB5, but violations of the city’s minimum wage and rent control ordinances, in addition, to prosecuting lower level misdemeanor crimes.

(source: https://ebcitizen.com/2019/09/16/alamed ... -with-ab5/)

The ability to prosecute is the result of a last minute amendment.

https://www.sfexaminer.com/news/last-mi ... iolations/

A number of lawsuits are being filed regarding this new bill.

https://www.latimes.com/business/story/ ... b5-lawsuit


Clearly this is a problem for private sector land surveyors. Of course, public sector land surveyors have no need to worry about any of this.

Is CLSA going to rise to the call and protect private sector land surveyors?

[DWoolley]

The train left the station nearly two years ago, April 2018, when the California Supreme Court ruled on Dynamex - instituting the ABC test. AB5 was the legislature catching up the statutes.

AB5 is projected to add $7 billion in to the state coffers through employment related taxes. There is plenty of incentive to prosecute scofflaws.

CLSA did their part in that Mike Belote, Legislative Advocate for CLSA, gave a briefing at nearly every Board of Directors meeting and certainly, at every Legislative Committee meeting. CLSA sought an exemption along with the other professionals, but again, as mentioned elsewhere, as a covered craft, it is not likely to happen.

Labor supports AB5. The lay of the land, as it relates to land surveyors, is Operating Engineers, Locals 3 and 12 ("3/12"), have a combined membership of approximately 55,000 - this counts retirees, operators and folks in three states outside of California, but they warehouse about 1,000 "surveyors". Granted, over 95% of these "surveyors" lack the most minimal of credentials i.e. an LSIT, but labor now has an interest in the land surveying profession. Clearly, these rank and file 3/12 members have no dog in the fight. In contrast, there are approximately 4,200 professional land surveyors in California, 1500 CLSA members, that includes public, private, signatory and nonsignatory folks. Naturally, the question is who invited these union folks to the party? It happened back in the early 60s when unions controlled much more than 14% (including the public employees) of the California workforce. In those days, arguably, there was a larger component of labor in land surveying i.e. brush cutters, 4+ person crews, two chainmen, etc. doing mostly construction related work. Obviously, the laborer component is no longer true today.

One path forward is to demand more qualified people from 3/12, raising the value of the license, the profession and professional stature. Caltrans and the City of LA has already blazed the trail for the community to follow - every other agency requires an minimum of an LSIT to apply for a party chief. The typical 3/12 party chief doesn't meet the minimum qualifications to apply for a party chief position in any public agency. Is that acceptable? If so, why? If so, maybe land surveyors are actually laborers. To argue the alternative, licensure is a barrier to entry and should not be required for anyone?

If a business or agency is supporting a seasoned survey technician, physically or structurally, without an LSIT or a license, ask yourself if you are not part of the problem? There is no longer room, no quarter, for a seasoned (5+ years experience) survey technician without an LSIT, CST or PLS. I recently questioned a licensee for ghost signing work product for an unlicensed fella. The rationalization was they were doing "garage projects", small boundary and topo. One of my questions was "this fella finds time to work eight hours a day, but in the last 30 years he couldn't find the time to take an 8 hour exam?". Please.

DWoolley

[Gary Schenk]

... This destruction is generally at the hands of careless municipalities that simply do not care....

You've never worked with private contractors?

[mpallamary]

Yes. I have worked with private sector contractors. I can assure you, you do not want to debate this one. I have so much documentation and evidence obtained through a number of Public Records Act Requests, you would not believe it. I have personally witnessed this destruction, in my presence, while on the phone with city officials.

I have more than you could ever imagine!

[mpallamary]

It is my opinion we were not well represented in these challenges. Who was lobbying for the engineers and the architects?

A number of "professions" have file lawsuits over this since January 1.

Does anyone know why we are not exempt because we are, in fact ENGINEERS by definition, are we not?

PLSA:8751. Representing self as licensed

No person shall represent himself or herself as, or use the title of, or any abbreviation or combination of the words in the title of,

professional land surveyor,

licensed land surveyor,

land surveyor,

land survey engineer,

survey engineer,

geodetic engineer,

geomatics engineer, or

geometronic engineer unless he or she is the holder of a valid, unsuspended, and unrevoked license.

At a bare minimum, CLSA should seek a legal opinion on this. At a BARE minimum.

[mpallamary]

It should scare the holy bejesus out of every private practice land surveyor when you have city attorneys and county attorneys pledging to prosecute violators, while at the same time, refusing to prosecute for the destruction of survey monuments by municipal agencies.

[ekparian]

So, I just want to understand... is my thought process correct?
If I'm a officer of a corporation or work for a corporation that solely does land surveying, I'm ok...?
If I own a private practice or work for a private practice that does solely land surveying, i am ok...?
If i work on a side project from my garage, without a company name, for surveying I'm in danger of violating AB5?
If I do consultant work and get issued a 1099 for surveying, I'm in danger of violating AB5?
If I am the survey firm who hires consultant and issues them a 1099 I am in danger of violating AB5?
Is this correct?

[Jim Frame]

I think licensed land surveyors ought to be exempted in AB5, but I don't see any alarming effect if we're not. Although the AG, DA and city attorneys will be able to prosecute violations, it seems to me that they're only going to do that when 2 things happen:

1. There's a complaint filed. In practical terms, that means that a licensee who was engaged as an independent contractor files a complaint against his prime, as that's about the only way the situation is going to come to the attention of the authorities. Why would the surveyor file a complaint, unless he's getting screwed by the prime somehow?

2. The AG, DA or city attorney perceives the violation to be worth prosecuting. It's not like these guys are just sitting around looking for something to do, they have to weigh the benefits of a successful prosecution against the cost of pursuing it and the risk of losing. There's not a lot of win in going hard after a small-time operator.

I just don't see what all the fuss is about.

[mpallamary]

The San Diego Union Tribune ran a story today:

"Courts may also issue early rulings in lawsuits brought by certain groups challenging certain parts of AB5 as it applies to them.

"Beyond the courts, the legislature may add to the professions and kinds of businesses that are exempt from the ABC test under AB5 and subject to a more flexible test. The legislature also may clarify the scope of the business-to-business and referral agency exceptions, among others.

"In addition, AB5 expressly authorizes city attorneys in large California cities, including San Diego, to bring enforcement actions. Days after passage of AB5 in September – and before it was signed into law - San Diego City Attorney Mara Elliott relied on the Dynamex ruling to sue grocery delivery company Instacart for misclassifying its “shoppers” as independent contractors. AB5 is not limited to companies in the gig economy. It will be interesting to see what other kinds of companies are targeted by city attorneys and private attorneys representing workers.

https://www.sandiegouniontribune.com/bu ... ed-in-2020

[mpallamary]

Why can't CLSA join in, like other occupations, and challenge the inclusion of survey engineers?

[mpallamary]

From the UT article also:

"How will the AB5 independent contractor law be enforced and modified? Enactment of Assembly Bill 5 was the biggest development in the law at work in 2019, just as the California Supreme Court’s ruling in Dynamex, which AB5 codified, was the biggest development in 2018. In 2020, there consequently will be fewer - maybe far fewer - individuals working as independent contractors than in 2019. Some of those workers will be dropped instead of being reclassified as employees.

"California hiring entities that wish to classify workers as independent contractors rather than employees generally must pass all three parts of the ABC test: (A) the worker must be relatively free of control by the hiring entity; (B) the worker must perform work that is not integral to the hiring entity’s business; and (C) the worker is regularly engaged in an independent trade or business similar to the work performed.

"Sometime in the coming months, the California Supreme Court is expected to decide whether Dynamex applies retroactively, as judicial decisions generally do and as AB5 suggests it should.