Date: 1/15/2021
By: Thomas O’Connell
Executive Summary
The California Assembly has introduced a bill that is meant to “safeguard” fast food industry workers who the assembly states have been mistreated, harassed, and discriminated against. The scope of the bill is not yet clear but is being heavily supported by California unions.
Citation
The FAST Recovery Act
Analysis
On January 15, 2021, Democratic Assembly Member Gonzalez–the same assembly person who introduced AB5–introduced AB 257. The bill is co-sponsored by the California State Council of Service Employees International Union and Fight for 15. At present, the bill states as follows:
Existing law prescribes various protections for employees and generally charges the Labor Commissioner with the enforcement of labor laws. Existing law creates the California Retail Food Code, the purpose of which is to safeguard public health and provide to consumers food that is safe, unadulterated, and honestly presented through adoption of science-based standards.
This bill would enact the FAST Recovery Act. The bill would make a statement of findings regarding the fast food industry, particularly with respect to the COVID-19 pandemic, and state the intent of the Legislature to enact legislation relating to the fast food industry.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be cited, as the FAST Recovery Act.
SEC. 2. (a) The Legislature finds and declares the following:
(1) For years, the fast food industry has been rife with abuse, low pay, few benefits, and minimal job security, with California workers subject to high rates of employment violations, including wage theft, sexual harassment and discrimination, as well as heightened health and safety risks.
(2) Fast food workers are the largest and fastest growing group of low-wage workers in the state and lack sector-specific protections.
(3) The COVID-19 pandemic has illustrated the implications for workers and the public when a disempowered workforce faces a crisis in an industry with a poor history of compliance with workplace health and safety regulations.
(4) Workers with inadequate means to amplify their voices and their experience, and to address the pervasive problems plaguing the industry, have exacerbated the impact of this crisis and denied workers a path to win safer workplaces for themselves, their families, and fast food consumers.
(5) Since the onset of the COVID-19 pandemic, numerous local, state and federal laws and regulations have been instituted to require operational changes on the part of businesses to protect employees from infection.
(6) Numerous complaints filed by fast food workers with local health departments illustrate fast food operators routinely have flouted protections, including, but not limited to, requiring workers to work without access to personal protective equipment, denying workers sick pay, failing to inform workers of exposure to COVID-19, actively hiding COVID-19 cases, and demanding that workers come to work when they are sick.
(7) As a result, fast food workers, and the public they serve, face serious and unacceptable risks to their health and safety.
(8) In addition, fast food companies have profited during the pandemic, while California’s one-half million fast food workers have been hard hit, both medically and financially. Despite corporate profits, fast food workers are poorly positioned to participate in a fast recovery and a more equitable economy.
(9) Therefore, cooperation between state agencies with responsibility for improving and enforcing health and safety and other worker protection laws, with regular input from industry and worker representatives, along with improved incentives to achieve compliance, is critical to protecting fast food workers, customers, and the public.
(b) It is the intent of the Legislature to enact legislation relating to the fast food industry.
Looking Forward
At present, the bill does little more than outline the intentions of a former union leader turned legislator. However, as is self-evident above, that outline is rife with fundamentally false and hostile statements about franchisors and franchisees. While it would take more than a mere legal alert to rebut each of these accusations, the language of the bill gives a preview of what the bill may try to achieve:
- Wages: While minimum wage in California is already set to increase to $15.00 by 2022, under the false pretense that franchised fast food restaurants are making millions of dollars and can afford to pay their workers more, this bill will likely try to raise minimum wage for fast food workers. While economic studies could easily rebut this and demonstrate that (i) fast food franchises are small businesses and (ii) those small businesses are not making the profits that the unions claim they are.
- Joint Employer and Unionization: While this has been a running debate since at least 2015, unions have held firm to the belief that if there is a joint employer presumption related to franchisors, franchisees, and their employees, unionization would occur. The public nature of this article prevents me from weighing in fully on this issue fully but (i) this is inaccurate and (ii) it presumes that unionization is what is desired by anyone other than the union organizers themselves.
- At-Will Employment and Unionization: The statement “minimal job security” is commonly code to attack at-will employment. Unions commonly promise that through union membership, they can make it harder for an employer to terminate an employee.
- Claims by Employees and Unionization: The bill’s multiple attacks on fast food restaurants as producing more employment violations than other industries is false and it is specious to suggest that additional protections are required. Nevertheless, the “logic” of this accusation is that fast food restaurants allegedly mistreat their employees more than other industries so the legislature must yield to alternative means to provide those employees more protections. Coincidently, one of those means would be to make it easier for those employees to unionize.
The common theme: if there is an argument that unions can point to that supports unionization–even if that argument is false–it will likely be a part of this bill’s debate.
This article was originally published on the California Franchise Network.
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Thomas O’Connell – Tom O’Connell is a Shareholder at Buchalter APC, where he serves as Chair of the firm’s Franchise Law Practice and Chair of Litigation for the firm’s San Diego office.
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