This op-ed appeared on the California Globe website
These days, it is hard to avoid headlines about the latest businesses going under and more lost jobs due to COVID-19 in California. But not only are California’s businesses suffering like most across the country, we have it even worse for one reason: lawmakers did virtually nothing last session to protect our businesses against California’s worsening lawsuit abuse problem. With everyone back in Sacramento, my hope is that issue will seriously be considered this year.
Let’s start with California lawmakers’ failure to curb the oncoming wave of COVID-19-related frivolous lawsuit, while in fact creating more ways in which businesses can be sued. Did you know that businesses must actually prove they did not give a customer or employee COVID-19 instead of plaintiffs providing any evidence of their own? They are required to spend precious resources on discovering who may have gotten sick and where, even if they were following all appropriate public health guidelines. If this seems backwards, it is. And it’s the perfect storm for lawyers looking to turn a buck via lawsuit settlements – a recipe for disaster for our state’s struggling family business owners. And this is only one of the ways that our lawmakers let our business community down during this past session.
Then there is the issue of California’s notorious Private Attorneys General Act (PAGA), which allows any “aggrieved employee” to sue on behalf of the state for the most trivial “violations” imaginable, such as a typo in an employee’s paystub or a clerical error on a timesheet. Why are these utterly useless lawsuits continuously filed in the Golden State? Because under PAGA, there is the potential for a huge payout, which – as usual – attracts the state’s aggressive trial attorneys.
Under PAGA, 75 percent of penalties paid by non-compliant employers goes to the state. Therefore, the employees who bring the suit are left with 25 percent, a third or more of which goes to the lawyers. In the most classic example of why this needs to be changed, a 2019 PAGA lawsuit against Uber resulted in a $7.75 million settlement – $2.3 million of which went to the plaintiff’s counsel. This left a little over $1 to the average Uber driver.
In addition, the threat of PAGA lawsuits prevents employers from working with their employee’s need. As an example, Jim comes to work at 6:00am, so is required by state law to have lunch at 11:00am. All of Jim’s friends at the business have their lunch at noon, so Jim would like to put his lunch off an hour so he can join them. The employer must say no, the law won’t allow that and you could sue me if I OK it. Another example, Sue would like to skip her afternoon break so she can be there for the start of her son’s little league game. Again, the employer must say no, for the same reasons.
It’s senseless laws like this like this that allow trial attorneys to reap the benefits of our broken legal system, while leaving our businesses owners to suffer the consequences. As the Executive Director of the Family Business Association of California, I know that our lawsuit abuse problem is hurting struggling, family-owned businesses. If we want to ensure we actually have an economy to come back to once this crisis is over, lawmakers must prioritize protecting, rather than harming, the employers in this state, and ending these unwarranted lawsuits.
By Ken Monroe, FBA Chairman and president of Holt of California
The following commentary was posted on Fox & Hounds on October 21, 2020
Proposition 15, the split-roll property tax measure on the November ballot, would seriously affect family businesses throughout the state by raising taxes on commercial property by an estimated $11.5 billion a year. As the owners of family-owned Holt of California and chairman of the Family Business Association of California, I know how hard it will impact our companies.
The measure’s proponents were arguing that the state faced a financial crisis and needed to double or even triple taxes on businesses large and small even before the COVID-caused recession hit and the economy was doing well.
In fact, this supposed financial crisis is not new and it’s never been solved to the satisfaction of public employee unions and their supporters in Sacramento despite a long line of tax increases.
Proposition 98 in 1988 (mandatory education spending) wasn’t enough, so then there was Proposition 30 in 2012 (“temporary” taxes to fund state programs). But that wasn’t enough, either, so along came Proposition 55 in 2018 (which made those “temporary” taxes permanent). But even that wasn’t enough, so now comes Proposition 15. Will this be the end? No, and if it passes and causes property taxes for commercial property to skyrocket, you can be sure that a push to increase residential property taxes won’t be far behind.
So what crisis are we facing? Proponents of Proposition 15 say they want to provide a better education for our children. But the funds would really be used to bridge the gap between available funds and what’s needed to pay for government employees’ generous retirement benefits. Only about 30% of the new taxes would go to schools – and could be used for pension obligations. The rest would go to state and local governments, which could spend the money however they choose.
A large part would undoubtedly be spent to backfill that multi-billion dollar unfunded pension liability. Because retirement spending has grown faster than revenues, funding for many government programs have grown more slowly. Absent reform, retirement spending will continue to grow faster than revenues even after the recession ends.
Before we add another tax to California family businesses, let’s see structural retirement spending reforms.
Proposition 15 would hit almost every business hard. Proponents say it exempts agricultural land, but it would increase taxes on improvements to farmland such as barns, buildings, processing areas and even some of the crops grown. They also say it would exempt small business, but that’s simply not true. The triple-net leases commonly used to rent stores and offices require tenants to pay real estate tax, building insurance and maintenance cost increases. If property taxes go up, so does the businesses’ rent.
If Proposition 15 passes, most family businesses will be forced to reassess our budgets and find ways to pay the higher taxes. But family businesses can’t simply wave a magic wand and increase sales or raise prices to cover those increases, so there will be less money available for employee raises and company growth. We will have to restructure our businesses to survive and compete, unlike the public employee unions that will not budge when it comes to reforms.
California businesses already have the highest tax bills in the country and imposing a massive tax increase like this means many long-time family businesses will not just think about leaving the state, they will do so.
And that would cause the public employee unions to look for other revenue sources to “solve” the Never-Ending Financial Crisis. Please vote no on Proposition 15 and let family business grow and provide the jobs California needs to expand the economic good for all.
FBA has taken positions on four ballot initiatives that will have an impact on family businesses.
No on Prop 15 — an $11-12 billion tax increase at the worst possible time. Public employee unions always want more money. The property tax on property owned 10 years or more could double or triple if Prop 15 passes.
No on Prop 19 — the California Association of Realtors want to see more people sell their homes and accomplish this with a $1-2 billion tax on parents transferring homes to their children.
No on Prop 21 — rent control is just bad public policy, period!
Yes on Prop 22 — FBA views any change to AB 5 as positive and many of our members use app- based delivery services. People should be free to decide if they want to be employees or contractors, not have the state decide for them.
If you would like more information on any of the 12 initiatives on the November ballot contact Robert Rivinius.
The Family Business Association of California today issued the following statement expressing disappointment in Gov. Gavin Newsom’s decision to support Proposition 15, the measure on the November ballot that would create an $11.5 billion tax increase on businesses.
“The Family Business Association is composed of family-owned businesses that have been investing in California for decades. Our members have a long-term view. We create jobs and opportunities for thousands of Californians. COVID-19 has hit us hard. Global, offshore competition has narrowed our margins. Asking us to now pay in many cases two or three times the amount in property taxes that we have historically paid means higher wages will be deferred and what limited job growth there is will stop and any new jobs likely will be created in other states. Proposition 15 is a terrible idea, especially during these difficult times. We are very disappointed by Governor Newsom’s endorsement of this proposition that will seriously harm our businesses and our employees’ job security.”
By Ken Monroe, FBA Chairman
California’s 1.4 million family-owned businesses are in the fight of their lives.
Some have been shuttered since March, still waiting nervously for an all-clear from state officials. While their revenue stopped, the bills kept coming. And many voluntarily kept paying wages, health benefits and other costs to take care of their greatest asset: their employees.
Other businesses benefited from the “essential” tag (or so they thought) and were allowed to continue operations. But staying open during the stay-at-home order meant limited operations and large drops in revenue, yet higher costs to modify how we work to protect workers and customers.
The point is regardless of the size or industry, few businesses have made it through the past few months without major harm.
With California reopening, there seems to be a light at the end of the tunnel. The question now at hand is this: will state lawmakers allow that light to shine and help business power an economic comeback? Or will our prospects dim under short-sighted policies that throw more burdens and new costs on employers, slow job creation and kill future growth?
There are several areas where lawmakers can show whether they are friend or foe to family-owned businesses, including how they deal with new taxes, restrictive contracting rules and predatory lawsuits.
Another threshold test will be workers’ compensation. California employers have historically paid among the highest costs for workers’ compensation insurance. A lot of these costs do not benefit the workers who truly need it – instead money is skimmed away by lawsuits and outright fraud.
As a result of COVID-19, a new workers’ compensation threat has emerged: a “presumption” that all COVID-19 cases should be blamed on work and, therefore, eligible for workers’ compensation benefits.
Let me be clear: employers support – and pay for – our workers’ compensation system as an important safety net. We do our best to keep workers safe and healthy. When accidents or illnesses occur because of work, our workers should get the medical care and benefits they need.
Presumptions turn the system inside out. Instead of providing these benefits for work-related injuries or illnesses, employers will pay for any instance when a worker gets sick – even if the illnesses was caught a home from a family member or out in public from a stranger.
In early May, Gov. Gavin Newsom enacted an emergency presumption, when most of our state was still closed down.
As Californians get back to work – and back to their own personal lives – blaming all COVID-19 cases on work is unfair and unjustifiable. Worse, it will cost employers billions of dollars to pay benefits that have nothing to do with work.
If lawmakers expand or extend the workers’ compensation presumption – as several have proposed – it would deal a devastating blow to family-owned businesses. Jobs will be lost, or not brought back. Economic recovery and growth will be dampened. And, ironically, it will depress the tax revenue our state leaders need to restore public services, such as education and community health.
Business will be the engine of the economic recovery. For state lawmakers, the choice is clear: are they friend or foe?
Ken Monroe is president and CEO of Holt of California, a major Central Valley Caterpillar dealer, and chairman of the Family Business Association of California. This op-ed first appeared in the Bakersfield Californian.
Two months into California’s economic lockdown, it’s time to start working on creating a V-shaped economic recovery.
Gov. Gavin Newsom has shown strong leadership during the past couple months in response to the coronavirus outbreak. Now he needs to unleash the power of private enterprise to protect our livelihoods.
He made the right decision in moving the state into a shelter-in-place strategy at a time when many people were still not convinced COVID-19 was that serious a threat. As a result, the virus has not had the same impact here as it has in many other large states.
It is also important that we continue to take prudent precautions to prevent a spike in cases or a later second wave of illnesses.
However, the unemployment statistics are beyond alarming. Nearly 4.6 million California workers have filed for unemployment benefits since March, and Newsom projects the state’s unemployment rate will peak north of 24.5%. In comparison, the jobless rate peaked at “just” 12.3% during the Great Recession in 2010.
While many counties are easing their shelter-in-place mandates and businesses are trying to reopen, many sectors of the economy remain shut down. And most businesses that are open or are trying to do so have had to radically rethink their operations to allow employees and customers to practice safe social distancing.
As a result, many of the state’s 1.4 million family businesses are struggling, even with the influx of federal assistance. If the strict quarantine lasts much longer, many of these businesses – and the 7 million jobs they provide – will be gone.
Needless to say, billions of dollars in tax revenues that state and local officials were counting on to provide the wide array of government services are gone as well. If the economy doesn’t rebound, the loss in tax dollars will be far greater, resulting in even more painful cuts.
We will not be going back to “business as usual” any time soon, but there are four things the governor could do to jumpstart the economy and help family businesses in particular before it’s too late for many of us to resume operations.
First and foremost, he should urge backers of the so-called split-roll initiative to stand down. Now is not the time to make dramatic changes to Proposition 13and burden struggling businesses with an additional $12 billion in commercial property taxes. Even in the best of times, raising business taxes by this huge amount would cause many companies to fail and cause many others to downsize or relocate out of state. Doing so now would be devastating to the economy.
Second, he should suspend AB 5. The prohibitions against independent contractors are so restrictive that they will make it hard for many family businesses to get back on their feet.
Third, he should work with lawmakers to provide protection during the rest of the year for employers against wage and hour lawsuits authorized by the Private Attorneys General Act. These lawsuits filed by trial lawyers can cost employers hundreds of thousands of dollars for paperwork violations even when workers incur no damages. Family businesses will need as much flexibility as possible to rebuild operations after this shutdown.
Finally, the governor has the authority to suspend the mandated minimum wage increases if economic conditions warrant it – and clearly they do. Holding off further increases until our family businesses can recover would be extremely helpful.
The governor has shown Californians leadership to prevent the coronavirus from causing a public health catastrophe. It’s now time for him to show the same leadership to prevent an economic catastrophe that could last for years.
Ken Monroe is chair of the Family Business Association of California, email@example.com. He wrote this commentary for CalMatters.