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The Ugly Battle Behind California’s Prop 11

On November 6, 2018, California voters approved Proposition 11 by a margin of 61%–39%. In simple terms Prop 11 requires EMTs who work for private companies to stay on duty to respond to calls during their meal and rest breaks, just as they do now. 

The background behind Prop 11, however, is anything but simple. For instance, private-sector EMS giant AMR (American Medical Response) paid to get Prop 11 on the ballot. AMR then spent nearly $30 million to support the campaign.

To be precise, “Californians for Emergency Preparedness and Safety, sponsored by American Medical Response (AMR)” paid $29,925,785.96 (Jan. 1–Oct. 20) to back the “Yes on 11” campaign, according to the state’s Cal-Access site on election financing.

“AMR was not the sole donor, but unions opposing Prop 11 still spent more than AMR on their own initiatives, including $34 million spent by the Service Employees International Union supporting the ‘Yes on Prop 8’ campaign, and over $40 million by unions opposing Prop 6,” says Jason Sorrick, director of communications and government relations for AMR’s West Region. 

Critics of Prop 11—among them the United EMS Workers (UEMSW) union, a Bay Area affiliate of the American Federation of State, County, and Municipal Employees (AFSCME)—say AMR only pushed the measure to protect itself from paying out millions in lawsuits.

“Requiring private-sector EMTs to be on call during their meal breaks is technically a violation of the California labor code,” says UEMSW Executive Director Jason Bollini. “AMR is experiencing three different lawsuits alleging those violations. Prop 11 retroactively rewrites the labor law, releasing AMR from $100 million in potential liability. Spending $30 million to save $100 million is a smart business move.”

“Voters were fully informed of the retroactive nature of Prop 11 in the voter guide,” notes Sorrick. “In fact, in the official voter guide and on the actual ballot itself, the title for Prop 11 prominently stated in large capitalized letters: Requires private-sector emergency ambulance employees to remain on-call during work breaks. Eliminates certain employer liability… Voters agreed that patient safety was best served by requiring all EMTs and paramedics to remain on call regardless of whether they work for a public or private entity, and that no liability should attach to this practice.”

Prop 11 Explained 

According to an analysis by the California Legislative Analyst’s Office (LAO)—a state-funded agency that’s the California legislature’s nonpartisan fiscal and policy analyst—a yes vote on this measure means: Private ambulance companies could continue their current practice of having emergency medical technicians (EMTs) and paramedics stay on duty during their meal and rest breaks in order to respond to 9-1-1 calls. Private ambulance companies would attempt to reschedule meal and rest breaks that are interrupted by a 9-1-1 call.

In contrast, a no vote on this measure means: Private ambulance companies would be subject to labor laws for this industry. Based on a recent court decision, these laws likely would require ambulance companies to provide EMTs and paramedics with off-duty meal and rest breaks that cannot be interrupted by a 9-1-1 call. 

According to LAO one fiscal effect of passing Prop 11 would be potential avoidance of one-time costs: Proposition 11 seeks to limit costs ambulance companies might face as a result of active lawsuits regarding meal and rest break violations. (The companies could owe payments to workers due to these violations.) Whether the measure limits these costs would likely be determined by the courts. If the measure does eliminate these costs, ambulance companies would avoid unknown, but potentially large, one-time costs.

Find the full text of LAO’s Prop 11 analysis here.

Why AMR Promoted Prop 11

Sorrick is adamant that Prop 11 is all about putting public safety first. 

“In 2016 a California Supreme Court decision (Augustus vs. ABM Security Services) stated that private security guards could no longer be contacted or reachable during their breaks—even during an emergency,” he says. “Under Augustus, all communication devices must be turned off while on break. Trial lawyers and unions quickly filed suit against private ambulance companies seeking to apply the ruling to private EMTs, paramedics, and emergency life flight helicopter crews.

“California had already exempted publicly employed EMTs, paramedics, firefighters, and police officers from the Augustus ruling and shielded their government employers from any legal liability from requiring their workforce to remain on call throughout their shift, which has been the practice for over 50 years for both public and private EMTs and paramedics, as well as all other public safety personnel. Prop 11 simply applies the same protections to private employers of 9-1-1 emergency medical crews that the state has provided public employers.”

AB-263

This argument doesn’t fly with California Assembly member Freddie Rodriguez. He is a 29-year veteran EMT and coauthor of AB-263, a bill entitled “Emergency Medical Services Workers: Rights and Working Conditions” that has been working its way through the California legislature. Using input from AMR and other industry players, AB-263 would provide the kind of exemption from lawsuits the company achieved with Prop 11, but without retroactive protection against suits already in progress.

Its text: An employer that provides emergency medical services as part of an emergency medical services system or plan…shall authorize and permit its employees engaged in prehospital emergency services to take rest periods. During the authorized rest period…an employer shall relieve an employee of all duties and relinquish control over how the employee spends his or her time, except that an employer may require employees to monitor pagers, radios, station alert boxes, intercoms, cellular telephones, or other communication methods during rest or recovery periods, to provide for the public health and welfare.

To date AB-263 is not law in California. Back in 2017 “the bill was moving pretty good through the process,” says Rodriguez. “But once the bill got over to the Senate side, we learned about the pending lawsuit regarding the meal and rest breaks not being paid. Because of the pending litigation, I had discussions with AMR and the California Ambulance Association that we would just hold the bill—because if the bill passed and got to the governor, he would probably veto it due to the pending litigation.

“We all agreed to just stand back and let this pending litigation take its course,” Rodriguez adds. “But for some reason AMR didn’t think it was reasonable, and they came up with this ballot initiative.”

“We were working with AMR in a legislative solution to off-duty meal periods for private-sector companies that provide public safety,” echoes Bollini. “But without the liability portion, they walked away from the table and authored Prop 11.” 

AMR’s Response

AMR disputes the assembly member’s version of events. “Since Mr. Rodriguez was an AMR employee at the time he introduced AB-263, and therefore a potential future plaintiff on this issue, it would have been unethical for us to make such an agreement,” says Sorrick. “Not only was no such agreement ever made, AB-263 was still an active bill for almost a year after Prop 11 was submitted to the attorney general. Mr. Rodriguez could have put AB-263 up for vote at any time but chose not to because he could not get the votes to pass it, since it put the interests of trial lawyers above patient care.”

In a statement that calls the motivations of AMR’s EMTs into question, Sorrick also says, “What Mr. Rodriguez and the unions really wanted was to not be on call during breaks and to not be interrupted for an emergency, even if that meant a patient’s life was at risk.”

The Takeaway

The notion that AMR’s EMTs would rather put a patient’s life at risk than be disturbed on their breaks is one that runs counter to the ethics of EMTs in general. (It also seems unlikely that AMR’s recruiters would hire EMTs who have a fundamental disregard for their company’s published mission statement: Our mission is to be patient focused, customer-centered and caregiver-inspired—making a difference by caring for people in need.)

This said, backing Prop 11 does appear to put AMR in a better position to deal with its lawsuits. If so, spending $30 million to save $100 million could prove to be a very good business decision indeed.

James Careless is a freelance writer and frequent contributor to EMS World.

Comments

Submitted byjwarman on 02/19/2019

Ask Jason Sorrick how much time he has ever spent working on an ambulance.

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