Young: Workers' Comp Winners and Losers for 2023

Friday, October 27, 2023 | 0

In the California Legislature in 2023, who were winners and who were losers? Before the year fades, a recap is in order.

Julius Young

Overall, it was not a year for big workers’ comp bills. The workers’ comp bills that passed and were signed are largely niche bills.

For non-workers’ comp bills affecting California workers, union-sponsored bills had some notable success, but some bills failed as well.

Workers’ comp winners this year included the following:

• Firefighters. Why? Assembly Bill 700 provides for the University of California to develop a California Firefighter Cancer Prevention and Research Program.
• Department of Forestry firefighters. Why? AB 621 amended LC 4707 to exempt them from limits on death benefits, allowing both workers’ comp death benefits and CalPERS death benefits.
• Certain other public safety workers. Why? Senate Bill 623 expanded the rebuttable post-traumatic stress disorder presumption to include them and moved the sunset date to Jan. 1, 2029.
• Honest contractors. Why? AB 336 requires contractors to certify workers’ comp insurance policy class codes when renewing their contractor licenses and requires the Contractors State License Board to post licensee codes and insurers on its website.
• Honest employers. Why? SB 743 added a fraud statement requirement for employers securing workers’ comp coverage. These are designed to discourage employer fraud.
• Employer and insurer coalition entities such as the California Coalition on Workers' Compensation and the California Workers' Compensation Institute. Why? It appears they were able to convince Gov. Gavin Newsom to veto a smattering of bills sponsored by the California Applicants' Attorneys Association or certain public employee groups that sought expanded presumptions.

Other winners included:

• Workers who need to take sick time. Why? SB 616 expands the minimum paid sick time from three days to five.
• Cannabis users. Why? SB 700 will make it unlawful to ask job applicants about prior cannabis use except under specified exceptions.
• Workers experiencing wage theft, misclassification and labor standards violations. Why? AB  594 expands and strengthens public prosecutors’ right to enforce state labor laws against wage theft, misclassification, etc.
• Fast food workers. Why? A negotiated compromise kept a planned initiative challenging some recent legislation off the ballot in exchange for raising the minimum wage at large chain locations and specified the composition of a fast food council.
• Workers experiencing workplace threats, violence and harassment. Why? SB 553 requires workplace violence prevention plans, logs of violent incidents and requires Cal/OSHA standards. SB 428 expands employers’ ability to seek restraining orders under specified conditions in the event that an employee is being harassed and irreparable harm could result.
• Health care workers. Why? Specified health care workers will receive minimum wage increases, to $26 per hour in 2026.
• Workers claiming retaliation. Why? SB 947 establishes a rebuttable presumption in favor of an employee’s claim if an employer retaliates against the employee within 90 days of engaging in protected activity.
• California labor unions. Why? They prevailed on some significant bills as noted above.
• Gov. Newsom. Why? He managed to sign some bills that were important to labor while vetoing others, thus using the “paddle to the left, paddle to the right” strategy used by Gov. Jerry Brown over the years. In so doing, he managed to avoid signing some legislation that might not play well in a national presidential campaign.

But there were losers this year as well:

• CAAA and the injured workers they represent. Why? Newsom vetoed AB 1213, which would have excluded up to 90 days from the aggregate temporary disability cap if an injured worker prevails in appealing a utilization review denial to independent medical review. Also, CAAA’s hopes for SB 631 failed when it did not move to a vote by the Legislature. The bill provided that upon appropriation for a study, the UC Berkeley Labor Center would be tasked with conducting a study of differences in compensation provided to employees of different genders.
• State Fish and Wildlife and State Parks workers. Why? Despite passage of SB 391, which would have established a skin cancer industrial presumption, the bill was vetoed.
• Employees of state hospitals and the Department of Corrections and Rehabilitation. Why? Newsom vetoed AB 1145, which provided an industrial presumption for PTSD.
• California labor unions. Why? Although they did prevail on a number of significant bills noted above, Newsom vetoed other labor-backed bills.

Here is an October 2023 statement from Lorena Gonzalez of the California Labor Federation:

    "Labor had some big wins this session: paid sick days, increased labor law enforcement, stronger workplace safety protection, higher minimum wage for fast food and health care workers, skilled and trained protections on new projects and organizing rights for legislative staff. We were also able to get $2 million to fund health care for workers on strike, an expanded film tax credit to preserve good union jobs in the entertainment industry, and $18 million for local agencies to do labor law enforcement.

"Unfortunately, some of our most important bills to protect striking workers and workers trying to organize were vetoed:

• SB 799 would have allowed striking workers to access unemployment benefits that they already earned. 
• AB 316 would have protected public safety and good jobs by requiring a human operator on autonomous big-rig trucks.
• SB 627 would have required corporate chains to give workers the opportunity to transfer to another store after a closure.

"Vetoes won’t stop us. We plan to come back next year and get these bills done to build worker power and protect good union jobs from automation and artificial intelligence.”

Julius Young is an applicants' attorney and a partner for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his Workers Comp Zone blog on the firm's website.