On this week’s podcast Jon Wainwright talks with University of Wyoming College of Law Professor Tara Righetti about her work in the field of oil & gas law, specifically laws and regulations around incremental storage and pore space utilization.

The laws related to pore space utilization – which is one piece of the oil & gas storage puzzle – can be tricky to navigate because there isn’t much legal precedent in federal law related to it. That is because there is not a lot of carbon storage in the United States writ large.

But what is very interesting about her work is the role that these existing technologies and strategies can play in addressing climate change. One thing Professor Righetti points out is that the goals of climate activists and the oil and gas industry are not as mutually exclusive as one might think. The process of incremental storage – which is where a depleted oil or natural gas production well is used to store carbon – combined with existing carbon capture technology – that is, technology that pulls CO2 out of the atmosphere – is a “bird in the hand” that can be used right now to fight climate change and global warming.

To learn more about Professor Tara Righetti, you can visit her University of Wyoming faculty page or her publications page.

And as always, you can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, Spotify, and TuneIn Radio, in addition to wherever else you listen to podcasts.

To help more people hear this week’s conversation, please subscribe to The CAP⋅impact Podcast on any of those services and leave a 5-star rating and a positive review. That makes it easier for the show to be found which in turn makes it easier for people to learn about the work that Professor Righetti is doing.

 

 

 

 

 

 

 

Today’s post is on AB 2334 from the 2018 legislative session that concerns new employer reporting requirements for injuries and illness. Governor Jerry Brown signed Assembly Bill 2334 by State Assemblymember Tony Thurmond on September the 19th as Chapter 538. This new law went into effect on January 1, 2019.

The new law clarifies that the occurrence of a violation of an occupational safety and health order continues until that violation is corrected, that the Division of Occupational Safety and Health, DOSH, discovers the violation or the duty to comply with the requirement is no longer applicable. The bill AB 2334 amends several provisions of the Labor Code and adds two new provisions to the Labor Code.

Among other provisions, it requires DOSH to monitor rule‑making and implementation of the US Department of Labor’s Occupational Safety and Health Administration’s improved tracking of workplace injuries and illnesses rule regarding electronic submission of workplace injury and illness data.

It also requires DOSH, if it determines that the federal OSHA has eliminated or substantially diminished any federal submission requirements, to convene an advisory committee to evaluate how to implement changes necessary to protect the goals of that federal rule.

It, again, amends several Labor Code provisions to add new requirements, including a requirement that a citation or notice shall not be issued by the division more than six months after the occurrence of a violation.

Also, the new law added a statement of intent in 6410.1 of the Labor Code that DOSH should maintain a strong workplace injury and illness‑reporting standard and also the requirement that DOSH monitor rule‑making and implementation of the US Department of Labor with respect to the electronic submission of workplace injury and illness data.

It also says that individually identifying information may be used by the Office of Self‑Insurance Plans of the Department of Industrial Relations to carry out its duties.

The director may publish information regarding the cost of administration, workers’ compensation benefit, expenditures, solvency, and other information, as long as the information does not include any individually identifiable claim at information. All of this and more can be found in newly adopted AB 2334.

You can find a transcript of today’s podcast here.

 

 

 

 

 

 

 

In both the California State Assembly and the California State Senate, there are designated officers and elected leaders of these two bodies. We’ll take a quick look at some of those positions in the text and cover more of the positions in today’s podcast. We’ll start with the California State Assembly.

Speaker – he or she is the highest-ranking officer of the Assembly and is elected by the members at the beginning of the two-year session. He or she presides over floor sessions and has extensive powers and duties established by the Assembly Rules.

Majority and Minority Floor Leaders – The Majority Floor Leader is elected by the members of the majority party caucus, who represents the Speaker on the floor and oversees the floor proceedings through parliamentary procedures such as motions and points of order. The Minority Floor Leader is elected by the caucus having the second largest membership in the Assembly and is generally responsible for making motions and points of orders and representing the minority caucus on the Assembly Floor.

Majority and Minority Whips – The Whip is essentially the political leadership of each party in the Assembly. They are elected by their caucuses or appointed by the Speaker and there are usually Assistant Majority Whips and of course, on the other side of the aisle, there is the Minority Whip who is selected by the Republican leader and there are often multiple Assistant Minority Whips.

There are many positions in the California State Senate that are very similar to their counterparts in the Assembly so I’ll focus instead on President of the Senate and the President Pro Tem of the Senate.

President of the Senate – By law, this is the Lieutenant Governor. However, by custom the role is extremely limited. He or she may be invited periodically to preside over ceremonial occasions, such as the opening of the two-year legislative session. The only time the Lt. Governor is entitled to participate in the business of the Senate is in the case of a tie vote when he or she would cast the tie breaking vote.

Senate President Pro Tem – He or she is the leader of the Senate and serves as the chair of the Rules Committee. This individual is elected by the members, generally, at the start of the two-year session. The Pro Tem is the presiding officer who oversees the appointment of committee members, the assignment of bills, and the confirmation of Gubernatorial appointees, and of course, he or she is also the political leader of the majority party.

You can find a transcript of today’s podcast here.

 

 

 

 

 

 

 

Today’s podcast is on the new rules for licensed shorthand reporters put in place by Assembly Bill 2084.

Governor Jerry Brown signed AB 2084 by Assemblymember Ash Kalra on September 21st as Chapter 648. The bill went into effect on January 1, 2019 and it adds Section 8050 to the California Business and Professions Code to limit the business practices of licensed shorthand reporters in the state.

AB 2084 prohibits an individual or entity that engages in any act that constitutes shorthand reporting, or that employs or contracts with another party to perform shorthand reporting, from engaging in specified business practices.

The bill also authorizes the attorney general, district attorney, city attorney or the CRBC to bring a civil action for a violation of these provisions of law. The new law subjects an individual or entity that violates these provisions to a civil fine not exceeding $10,000 per violation.

The bill specifies that this new code section applies to an individual or entity that engages in any licensed shorthand reporting activities.

Note however, that AB 2084 does not apply to an individual, whether acting as an individual or as an officer, director or shareholder of a shorthand reporting corporation, who possesses a valid license that may be revoked or suspended, or to a shorthand reporting corporation that is in compliance with Section 8044.

The new section of law also does not apply to a court, a party to litigation, an attorney of a party, or a full‑time employee of the party or the attorney of the party who provides or contracts for certified shorthand reporting for purposes related to this litigation.

Specifically the new code section prohibits an individual or entity from doing any of the following four items:

  1. Seek compensation for a transcript that is in violation of the minimum transcript format standards set forth in applicable regulations.
  2. Seek compensation for a certified court transcript applying to these other than those set out in statute.
  3. Make a transcript available to one party in advance of other parties, or provide a service to only one party.
  4. Fail to promptly notify a party of a request for preparation of all or any part of a transcript, excerpts or expedite for one party without the other party’s knowledge.

AB 2084 does not, however, prohibit a licensed shorthand reporter, shorthand reporting corporation, an individual entity from offering or providing long‑term or multi‑case volume discounts or services that are ancillary to reporting and transcribing a deposition, arbitration or judicial proceeding in contracts that are subject to law related to shorthand reporting.

You can find a transcript of today’s podcast here.

Today we talk with the expert in the field of heirs’ property rights, Texas A&M Law Professor Thomas Mitchell. Prof. Mitchell is the Reporter – read: primary drafter for those not intimately aware of the terminology used by the Uniform Law Commission – of a policy crafted through the ULC to protect the property rights of individuals who have tenancy-in-common ownership of property. Essentially, the policy makes it more difficult to force a sale of property – through a forced sale auction that results in a fire sale price on the property rather than it’s fair market value – by codifying in state law that the primary remedy is for properties to be divided rather than using the courts to force a sale. Professor Mitchell goes into greater depth in the podcast about how the process has been abused in the past and in state where this policy is not in effect.

Thanks to the research and tireless advocacy of Prof. Mitchell, this law is in effect in 12 states/jurisdictions in the U.S., has been introduced in seven more states, and is being re-considered in the District of Columbia.

We talk about the conversations and research that started Prof. Mitchell down the path to write these laws, some of the biggest challenges that he and his coalition faced getting the policy enacted in one state, and as he puts it, “battling the ghost of Strom Thurmond.”

To learn more about Professor Thomas Mitchell, you can visit his Texas A&M faculty page or his SSRN author page. You can also learn more about the Uniform Partition of Heirs Property Act here.

And as always, you can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, Spotify, and TuneIn Radio, in addition to wherever else you listen to podcasts.

To help more people hear this conversation, please subscribe to The CAP⋅impact Podcast on any of those services and leave a 5-star rating and a positive review. That makes it easier for the show to be found which in turn makes it easier for people to learn about the work that Professor Mitchell is doing.

 

 

 

 

 

 

 

2018’s Assembly Bill 1976 essentially mandates that California employers must provide additional lactation accommodation to their employees. Governor Jerry Brown signed Assembly Bill 1976 by Assemblymember Monique Limón on September 30th as Chapter 940.

The bill requires an employer to make reasonable efforts to provide an employee wishing to express milk in private with an area in close proximity to her workspace that is not a bathroom.

The bill went into effect on January 1, 2019 and amends Labor Code Section 1031. Now, essentially, the bill provides agricultural employers to be in compliance with these requirements if they provide the employee with a private, enclosed, and shaded space. Also, the requirement was removed that the temporary lactation accommodation space be air conditioned.

The bill also allows employers who show that providing an employee with a lactation space that is not a bathroom would constitute undue hardship to that business to provide a lactation space that is not a bathroom stall. AB 1976 requires an employer to make reasonable efforts to provide that employee with use of a room or other location other than a bathroom.

In Labor Code Section 1031A, the bill strikes “toilet stall” and replaces it with the word “bathroom.” Also, subdivision B deems an employer to be in compliance with this provision of law if all four conditions that I will specify are met.

One, the employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.

Two, the temporary lactation location is private and free from intrusion while an employee expresses milk.

Three, the temporary lactation location is used only for lactation purposes while an employee expresses milk.

Four, the temporary lactation location otherwise meets the requirements of state law.

Lastly, a note to employers. Existing law makes a violation of these provisions subject to a civil penalty and makes the Labor Commissioner responsible for enforcement. These provisions of existing law continue even after AB 1976’s additional lactation accommodation requirements.

You can find a transcript of today’s podcast here.

 

 

 

 

 

 

 

There are a number of publications that are regularly used by the California Legislature and those who work in and around California’s state capitol. Of note is that several of these publications are specified in the California Government Code. I’ll provide a brief overview of some of the publications here, but I cover more in today’s podcast.

As an overarching provision, all printing for the Legislature and the individual houses is governed by the respective rules of the Senate and the Assembly, as well as the Joint Rules of the two houses. The Secretary of the Senate and the Chief Clerk of the Assembly are charged with printing all of the legislative bills, resolutions, constitutional amendments that are proposed by their respective members.

All of the legislative printing is done by the State Printing Office, or SPO, which is required by statute to print all of the laws, including initiative measures, as well as any other printing that is ordered by either the Senate or the Assembly. Now, by statute, the officers of the Assembly must appear on the front of all Assembly publications. There is no statutory requirement for the officers of the Senate. However, the same procedure is used in that house.

Article II of the Government Code deals with the Daily Journals of the Assembly and Senate. These two must be published by the State Printing Office. At least one copy of each Daily Journal of the Assembly and Senate must be authenticated. And after the final adjournment of the Legislature, the Journals for the entire session are bound and provided to the Secretary of State’s office.

Article III deals with the Legislative Manual. The Senate Secretary and the Assembly Chief Clerk must compile a Legislative Manual, or handbook, in December of each even-numbered year. The Legislative Manual includes state officers, members, and officers of both houses, lists of committees, rules of both houses, as well as the Joint Rules and other information that is deemed to be of use to legislators. This manual is provided to each legislator and elected state officer, as well as libraries throughout the state.

If you want to learn more about other legislative publications covered in the California Government Code, please listen to today’s podcast. You can find a transcript of today’s podcast here.

UNLV Boyd School of Law Professor Addie Rolnick talks with Jon Wainwright about her work to improve the juvenile justice system for tribal youth. Professor Rolnick goes over the biggest issues facing tribal youth who enter the juvenile justice system and offers the solutions she thinks are necessary to fix some of the cracks in the system.

One of the issues that we discussed that truly blew me away the lack of data on tribal youth in the justice system. Collecting data seems to me to be one of the easiest things an institution can do. This is one of the facets of the juvenile justice system that Professor Rolnick has been working to improve, having testified to Congress about this issue, as well as other improvements such as allowing for greater tribal control over juvenile justice, more flexible funding for tribes, and communication requirements for states and federal agencies, among other recommendations. As I mentioned before, she has brought these issues up to Congress as recently as last September when she testified to the U.S. Senate Committee on Indian Affairs’ Oversight Hearing on “Justice for Native Youth: The GAO Report on ‘Native American Youth Involvement in Justice Systems and Information on Grants to Help Address Juvenile Delinquency.'”

You can learn more about Professor Rolnick’s background and keep up to speed with her publications and news appearances here. Or, you can follow her on Twitter @acrolnick.

You can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, Spotify, and now TuneIn Radio, in addition to wherever else you listen to podcasts.

If you want to help more people hear this conversation, please subscribe to The CAP⋅impact Podcast on any of those services and leave a 5-star rating and a positive review. That makes it easier for the show to be found which in turn makes it easier for people to learn about UNLV Boyd School of Law Professor Addie Rolnick’s work.

Governor Jerry Brown signed Assembly Bill 2282 by Assemblywoman Susan Eggman on July 18, 2018 as Chapter 127. The bill provides clarity on several provisions of existing California law that’s intended to prohibit the use of prior salary history in negotiations between employers and applicants for employment. The bill amended Labor Code Sections 432.3 and 1197.5 and went into effect on January 1, 2019.

AB 2282 defined the terms “pay scale,” “reasonable request,” and “applicant” for purposes of the existing law. AB 2282 further clarified that existing law does not prohibit an employer from asking an applicant for employment salary expectations for the position that he or she is applying for.

In addition, the new law allows an employer to make a compensation decision based upon an employee’s current salary, so long as any wage differential from the particular compensation is noted.

The bill specifies that the prohibition on asking a job applicant about prior salary does not actually forbid the employer from asking the applicant for employment about his or her salary expectations.

In terms of specific provisions, the bill also said that a “pay scale” means a salary or hourly wage range, and that a “reasonable request” means a request that’s made after the applicant has completed an initial interview with the employer. Then AB 2282 defines an “applicant” to mean an individual who is seeking employment and is not currently employed with that particular employer.

Note, too, that AB 2282 also made two important changes to California’s Equal Pay Act in both the equal pay provisions. One is based upon gender and the other on race or ethnicity.

The new law struck the requirement that salary history shall not, by itself, justify any disparity in compensation. “Prior salary shall not justify any disparity in compensation.”

This bill didn’t have any opposition and moved relatively easily through the legislative process. It was co‑sponsored by the American Association of University Women, California Employment Lawyers Association, and equal rights advocates.

 

 

 

While some aspects of drafting bills and amendments in California are certainly generic in nature to all types of legislative bill drafting, there are several unique aspects that are a part of bill drafting in the state of California. In general, those individuals drafting bills and amendments should keep in mind the general rules of statutory construction. For example, there’s the usual plain meaning rule where the judiciary will look to the “plain meaning” of the statutory language. Of course, in a legal dispute, the statutory language rarely has the same plain meaning to both parties of that dispute.

On the other hand, if there is ambiguity in the statutory language, then extrinsic aids can be used to help the judiciary interpreting the bill language. Those who draft and analyze bill language are aware that there are many other canons of statutory construction, but after these general rules, bill drafters in California need to think about some of the following other issues such as conflicts with other bills. Here are some other aspects to consider.

Retroactive Versus Prospective Nature of the Bills

As you’re probably aware, in most instances, bills are prospective in their application. Most bills in California are effective on January 1 of the following year. However, in some instances a bill’s provisions are intended to be applied retroactively. In those circumstances, the bill drafter needs to review the key rules for drafting bill language that will be applied retroactively.

For example, what effective date is contemplated? Should the bill drafter include a statement that the bill clarifies existing law? Moreover, in the case of tax law changes, retroactive bills of more than one year are generally prohibited unless a public purpose is expressed in the bill language that justifies the retroactive application of the bill’s provisions.

Legislative Intent Language

Some bills include intent language which expresses the findings and declarations of the Legislature regarding what the bill’s changes are intended to do. The bill drafter should consider the pros and the cons of using intent language. The following is one appellate court statement on the use of such language. “That two legislators report contradictory legislative intent fortifies judicial reticence to rely on statements made by individual members of the Legislature as an expression of the intent of the entire body.” That was in Ballard v. Anderson back in 1971. They also said that other extrinsic aids to determine legislative intent are generally more persuasive.

There are other aspects that are unique to bill drafting in California, but these highlighted ones give you a sense of some of the factors to consider when drafting bills and amendments in California.

You can find a transcript of today’s podcast here.