California Law: Pay volunteers [Left wing union workers vs. left wing environmentalists.]

abetterearth.org ^ | Sam Wardle

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http://www.abetterearth.org/article.php/742.html

Conservation Efforts

California Law: Pay volunteers

by Sam Wardle

Very few people in their right (or left) minds would argue that volunteerism is a bad thing. Strangely enough, though, that is exactly what the California Department of Industrial Relations (DIR) did last summer when they fined the Sacramento Watersheds Action Group (SWAG) almost $50,000 for, what else, using volunteers and students to clean up Sulphur Creek in the city of Redding. In a bizarre mix of bureaucratic fumbling and union resentment, it has apparently become illegal in the state of California to do work that you are not paid for. Under the letter of the arcane Labor Code, if anyone at all involved in what can be defined as a ‘Public Works Project’ gets paid, then everyone has to. Or else somebody’s getting slapped with a big fat fine.

In the case of SWAG, Local Union 185 representative Gary Sharette complained to the DIR when he said that some volunteers and students were (gasp!) using heavy machinery to clear a brush-choked streambed. Environmentalists and activists statewide were summarily outraged by the DIR’s fining of SWAG, but Sharette remains unapologetic. “They had a lot of heavy equipment,” he told the San Francisco Gate. “That’s union work.” Sharette’s complaint set off a chain of events that would have resulted in all work being halted (had they not finished) on the Sulphur Creek project and the DIR’s fining of SWAG for noncompliance and back wages, to be paid to its ‘volunteers.’

The justification for the DIR’s universally criticized fining is to be found deep in the California Labor Code, in the sections dealing with the definition of Public Works Projects. In a nutshell, renovations and rehabilitations, environmental or otherwise that fall under the domain of Public Works Projects are required to adhere to certain regulations. Sounds fair enough, until you hear what some of the regulations are. If anyone gets paid on a Public Works Project, even if it is only one director or coordinator (which most nonprofits like SWAG have), then under Labor Code rules everyone working on the project must be paid market wages, or, to put it bluntly, union wages. Thus the DIR’s decision to assess back wages to the Shasta College students who were working for class credit and local volunteers. So what exactly is a volunteer worth these days? Twelve to fifty dollars an hour, according to the ruling.

The case with SWAG, though it has generated the most attention, is not the first time that someone has been penalized for using volunteer labor. The precedent was set in 1999, when the Partnership for Academic Excellence, a nonprofit organization, used some volunteers to help build the educational Lewis Center for Earth Sciences in Apple Valley. The Partnership for Academic Excellence was fined and forced to pay back wages to its volunteers. And then later, in the city of Santee, student volunteers were assessed wages for their work in clearing space for a baseball field. Their crime? Hiring an electrical engineer to design lighting.

Environmentalists all over California have been very vocal in their opposition to these rulings, and with national attention on the case growing, they have every reason to be. Rick Rice, a spokesman for the DIR, recently told aBetterEarth that, “until the law is changed, it will have a wide impact on volunteerism in California,” affecting not only watershed restoration efforts but also possibly halting work on low-income housing charities done by the likes of Habitat for Humanity. “A lot of grant money is getting caught up in this issue,” Rice said, “and a number of environmental projects have been affected.” Most of the detriment seems to have come on the grant level, with one official in charge of assigning grants saying publicly that he has simply stopped, and will not be able to begin again until the law is changed. Since most community-improvement projects rely heavily on grants (SWAG’s was for $273,000), this is not good.

In February and March, California agencies sent out letters to watershed restorers all over the state, warning of the government’s new position. Currently, if an organization wants to use volunteers without fear of breaking the law, they must submit to a set of guidelines that, given the fact that they apply to people trying to improve the environment and their communities, seem rather Draconian. Under Labor Code, volunteers on Public Works Projects may only be used in cases where: no one is paid at all, as mentioned earlier; the project is run by a community-based organization; it will have no affect on local employment (how that is decided is anyone’s guess); and it has been reviewed by the Director of the DIR for up to 45 days. The law also prevents students from volunteering for projects and receiving class credit in return. They seem dead set that people receive hard cash for their work, or they don’t work at all.

Neither Rice nor a SWAG spokeswoman were aware of how many projects have been put on hold or scrapped altogether by the new law, but the impact has been significant enough to warrant a general uproar within the environmental community, dozens of articles from local and national publications, and two letters to Governor Arnold Schwarzenegger from Michael Wellborn, President of the California Watershed Network. In the first letter, Wellborn complained that many parts of the California Labor Code actually promote volunteerism, thus creating a contradiction in the law.

“As word (of the penalty levied against SWAG) spreads,” Wellborn wrote, “the community distress will both disrupt the work at hand and create confusion and paralysis among the new grant applicants.” Wellborn went on to warn that if the Labor Code remains unchanged, volunteerism in California will effectively cease on many levels, costing California millions of dollars. Governor Schwarzenegger’s office could not be reached for comment on the case, but a noncommittal letter from a state official was sent to the California Watershed Network in reply, offering up the lame hope that everything could be resolved to everyone’s satisfaction.

With all the negative attention this case is generating, the Labor Code’s attack on volunteerism is beginning to appear to be impossible to defend. And, in fact, it is impossible to find someone outside of a union who is willing to publicly stand up for it. State Senator Richard Alarcon (D-Sun Valley), author of the law in question, recently said that this particular application of the law was never intended and should be changed. As to how that will happen, Sen. Alarcon is reluctant to do it himself, suggesting instead that the Governor should intercede on a higher level. That does not appear to be happening at the moment. Even DIR spokesman Rice seemed frustrated by the law and the ensuing media storm that has put his department in such a villainous light.

“Our hands are tied,” he told aBetterEarth. “The Department of Industrial Relations has no choice over which laws it enforces. The problem is with the law itself.”

So, if everyone from activists to the people enforcing it disagree with this law, why hasn’t it been immediately changed? That would appear to be the sensible thing to do. The DIR’s stance that it has no choice over the laws it enforces seems a little weak, given the strict and swift measures they have taken against volunteerism. Couldn’t they just ‘look the other way’ and allow these people to continue their good work while speedily expediting an amended version of the Labor Code, rather than enforcing a universally despised regulation? Obviously, somebody somewhere is benefiting enough from this law to want to keep it around.

And here’s where the unions come into the picture. A state government official who asked not to be identified told aBetterEarth recently that the real reason for the existence of this law is simple pressure from organized labor. To understate it, most evidence does seem to point in that direction, from the stipulations that volunteer efforts not interfere with local jobs in the Labor Code to the simple fact that SWAG’s noncompliance was reported by a union worker. In fact, the prevailing wage law that the relevant parts of the Labor Code are based on was written originally to prevent non-union contractors from underbidding unions for Public Works Projects. And really, that is exactly what volunteerism does, in the eyes of the unions behind this law.

The problem, however, is that the grants given to nonprofits that use volunteer and student labor are much too small to pay anything more than a few directors’ wages. The unions are turning themselves into the proverbial selfish kid next door who breaks your toy because if he doesn’t get to play with it, no one should be able to. The simple fact is that many environmental projects will not get done without volunteer work. “Bottom line – this project would not have been able to afford a full scale Union operating out there along with prevailing wage workers,” Debra Donato of SWAG told aBetterEarth.

The California Conference of Carpenters Union recently presented Governor Schwarzenegger with a letter from the Sierra Club’s California director, requesting that watershed restoration be exempted from the law. So unions don’t necessarily have a natural aversion to volunteer labor. That is, if one can really even define ‘volunteer’ anymore, a conflict that is at the heart of the current debate. It seems simple enough, but the unions are taking issue with it. Jim Lewis, a trade union spokesman, claims that the people he represents have no problem with volunteers, as long as they aren’t doing something that someone else might get paid for. Seems a little silly, since most environmental and community volunteer work is effective because the volunteers do something for free because, for whatever reason, the money isn’t there to pay for a noble cause in these dire financial times.

"We are working with (California Assembly member) Loni Hancock and the other parties involved to make sure if there is work that requires the use of skilled labor, heavy equipment and so on, that that work is reimbursed under the prevailing wage law, as it has been for the last 70 years," Lewis told the Sacramento Bee’s Daniel Weintraub. "If there is work that is legitimate volunteer work, that is possible as well." Lewis and the unions have been stymieing efforts at all levels to fix the law with that deceptively simple- looking issue of what is ‘legitimate’ volunteer work. It’s come to the point where local Rotary Club members in Redding are afraid to volunteer to spruce up a new neighborhood park, for fear of breaking the law. Imagine the stereotypical union worker wearing a wide-brimmed flowered hat with his coveralls instead of a hardhat, on his hands and knees with a spade, planting tulips beside a park bench. It probably will never happen, but that is in effect what Lewis is arguing for.

The implications of a law like this probably will not be as far-reaching as they are outrageous, given the amount of opposition to the law, so the impact on ecological stewardship nationally will be negligible at worst, or a learning experience for lawmakers at best. Twenty two other states have similar laws to California’s, but this is the only time on record that they have been enforced in such a bizarre manner.

Currently, Assembly member Loni Hancock is trying to introduce legislation that will amend the law, and if it is passed with a two thirds majority, it will be a candidate for immediate introduction. DIR spokesman Rice could not say how likely this is to happen, but between Hancock’s legislation and the general distaste of the public, things will probably change sooner or later. According to Rice, there is even a good possibility that SWAG won’t have to pay their fine. Just a good possibility, though. As Weintraub suggested, it is also likely that Governor Schwarzenegger will come to his senses and realize that the people of California elected him to fix bureaucratic mishaps like this. (Knock on wood.)

Sam Wardle is a freelance journalist and writer in Asheville, NC.

[RS]

Some time ago a group of parents got together to clean up a school - cut the grass, trim bushes, etc when the school district put it off to save money.
The union gardeners sued, and got paid for the work done by the volunteers.

[rockrr]

“They had a lot of heavy equipment,” he told the San Francisco Gate. “That’s union work.”

Then get off your brain and volunteer yourself, lard-ass!