One of the California Attorney General’s many responsibilities includes the rendering of legal opinions to state and local officials and government agencies concerning legal questions relating to their offices. Cal. Gov’t Code § 12519. Recently, Assembly Member Jeff Gorell requested an opinion on the following question:
Under what circumstances does an owner-operated business with no employees nevertheless constitute a “place of employment” under Labor Code section 6404.5, which prohibits smoking in a workplace?
Although I’m no fan of smoking, the Attorney General’s response seems to fly in the face of common sense and even plain English:
An owner-operated business with no employees nevertheless constitutes a “place of employment” under Labor Code section 6404.5 when employment of any kind is carried on at the business location—that is, even when such employment is carried on by persons who are employed by someone other than the business owner.
How can a business with no employees be a “place of employment”? The Attorney General came to her conclusion by reasoning that even though the owner had no direct employees, the owner could be “a ‘secondary’ or ‘special’ employer with respect to persons who work for the business but are directly employed by someone else—e.g., those performing ’temp’ clerical or accounting services, janitorial or maintenance services, or repair services.” Applying this logic, every business constitutes a “place of employment”.
To reach this conclusion, the Attorney General resorted to grammatical analysis, finding the Legislature’s use of the passive voice in Section 6404.5 not just important but “critical”:
Thus “employment” is defined as ‘the carrying on’ of a wide variety of work activities. . . . By its use of the passive voice, the Legislature evinced a belief that the “carrying on” of employment at a place is more relevant to the statute’s purpose than are the specifics of the employment relationship. [footnote omitted]
The only problem with this analysis is that the word “carrying” as used in the statute, Labor Code § 6303(b), is not in the passive voice. Technically, “carrying” is a verbal noun, or gerund. In the statute, “carrying” has an object (work activities), and thus performs in the active, not passive voice. In the passive voice, the statute would read as follows: “employment includes work activities being carried on . . .”.
Does the distinction between passive and active voice make a difference? The Attorney General said that it does and even cited two cases supporting the use of the passive voice in statutory interpretation: Rey v. Madera Unified School Dist., 203 Cal. App. 4th 1223, 1233 (2012), quoting Dean v. United States, 556 U.S. 568, 572 (2009) (legislative use of the passive voice suggests that, “It is whether something happened—not how or why it happened— that matters”); and Capo for Better Representation v. Kelley, 158 Cal. App. 4th 1455, 1463 (2008) (Legislature’s use of the passive voice suggests focus on the thing to be done rather than on the person doing it). If she’s correct about the importance of grammatical voice, then she may want to rethink her opinion.