Bill Text: CA AB2364 | 2023-2024 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Property service worker protection.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2024-09-22 - Chaptered by Secretary of State - Chapter 394, Statutes of 2024. [AB2364 Detail]

Download: California-2023-AB2364-Amended.html

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Amended  IN  Senate  August 15, 2024

Amended  IN  Assembly  May 20, 2024

Amended  IN  Assembly  March 21, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 2364

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Introduced by Assembly Member Luz Rivas

February 12, 2024

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An act to amend Sections 1420, 1429, 1429.5, and 1430 of, and to add Section 1435 to, 1420 and 1429.5 of, and to add and repeal Section 1429.6 of, the Labor Code, relating to employment.

LEGISLATIVE COUNSEL'S DIGEST

AB 2364, as amended, Luz Rivas. Property service worker protection.

Existing law requires every employer of janitors to register annually with the Labor Commissioner and requires the Division of Labor Standards Enforcement to enforce the provisions relating to the registration of those employers. Existing law requires those employers to keep records for 3 years that include, among other information, hours worked daily by each employee and the wage and wage rate paid each payroll period. Existing law prohibits the division from approving the registration of any employer unless the employer has executed a written application, sworn by the employer, that contains specified information, including attestation that a specified sexual violence and harassment prevention training was completed.

This bill would require, beginning January 1, 2028, the annual application for registration to include whether, in the preceding year, the employer complied with specified regulations adopted pursuant to a prescribed process. In this connection, the bill would require the division to establish a 7-person advisory committee, composed of specified members, to develop proposed regulations establishing janitorial standards and submit those proposed regulations to the Office of Administrative Law for review and approval, in accordance with certain timeframes.

Existing law requires an employer to use a qualified organization, as specified, to provide the sexual violence and harassment prevention training, and to pay the qualified organization $65 per participant, except as specified.

This bill would instead require the employer, until January 1, 2026, to pay the qualified organization $200 per participant for training sessions having less than 10 participants, and $80 per participant for training sessions with 10 or more participants, except as specified. Each year thereafter, the employer would be required to increase the rate of payment, as specified.

Existing law prohibits the division from registering an employer under specified circumstances, including the employer failing to satisfy specified judgments or to remit specified contributions related to unemployment insurance, social security, or the Medicare Program.

This bill would revise the list of circumstances under which the division is prohibited from registering an employer to include, among other things, the employer failing, refusing, or being unable to attest under penalty of perjury that, in the preceding year, the employer has complied with any regulations adopted pursuant to the above-described process. By expanding the crime of perjury, the bill would impose a state-mandated local program.

This bill would also make nonsubstantive and technical changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

This bill would require the division to direct one or more of specified programs and departments of the University of California to conduct a study evaluating opportunities to improve worker safety and safeguard employment rights in the janitorial industry, and would require the entity or entities of the University of California to timely conduct the study. The bill would require an employer to provide to the entity or entities of the University of California access to the place of employment, as specified. The bill would require the division to convene an advisory committee that includes representatives from, among others, the University of California, the Civil Rights Department, and a collective bargaining agent that represents janitorial workers throughout the state. The bill would require the advisory committee, no later than March 1, 2025, to make recommendations regarding the scope of the study, and would require the division, on or before January 1, 2026, to submit a report to the advisory committee and specified legislative committees. The bill would require the University of California entity or entities and the division, in developing that report, to consider and be guided by the recommendations of the advisory committee. The bill would make technical and conforming changes.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YESNO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 1420 of the Labor Code is amended to read:

1420.

 For purposes of this part:

(a) “Commissioner” means the Labor Commissioner of the Division of Labor Standards Enforcement of the department.

(b) (1) “Covered worker” means a janitor, including any individual predominantly working, whether as an employee, independent contractor, or franchisee, as a janitor, as that term is defined in the Service Contract Act Directory of Occupations maintained by the United States Department of Labor.

(2) “Covered worker” does not include any individual whose work duties are predominantly final cleanup of debris, grounds, and buildings near the completion of a construction, alteration, demolition, installation, or repair work project, including, but not limited to, street cleaners.

(c) “Current and valid registration” means an active registration pursuant to this part that is not expired or revoked.

(d) “Department” means the Department of Industrial Relations.

(e) “Director” means the Director of Industrial Relations.

(f) “Division” means the Division of Labor Standards Enforcement.

(g) (1) “Employer” means any person or entity that employs at least one covered worker or otherwise engages by contract, subcontract, or franchise agreement for the provision of janitorial services by one or more covered workers. The term “employer” includes the term “covered successor employer,” but does not include an entity that is the recipient of the janitorial services.

(2) “Covered successor employer” means an employer who meets one or more of the following criteria:

(A) Uses substantially the same equipment, supervisors, and workforce to offer substantially the same services to substantially the same clients as a predecessor employer, unless the employer maintains the same workforce pursuant to Chapter 4.5 (commencing with Section 1060) of Part 3. In addition, an employer who has operated with a current and valid registration for at least the preceding three years shall not be considered a covered successor employer for using substantially the same equipment, supervisors, and workforce to substantially the same clients, if all of the following apply:

(i) The individuals in the workforce were not referred or supplied for employment by the predecessor employer to the successor employer.

(ii) The successor employer has not had any interest in, or connection with, the operation, ownership, management, or control of the business of the predecessor employer within the preceding three years.

(B) Shares in the ownership, management, control of the workforce, or interrelations of business operations with the predecessor employer.

(C) Is an immediate family member of any owner, partner, officer, licensee, or director of the predecessor employer or of any person who had a financial interest in the predecessor employer. “Immediate family member” means a spouse, parent, sibling, son, daughter, uncle, aunt, niece, nephew, grandparent, grandson, granddaughter, mother-in-law, father-in-law, brother-in-law, sister-in-law, or cousin.

(h) “Production rates” means the average number of square feet the employee cleaned each hour during their shift, calculated by dividing the cleanable square footage of the property cleaned by the total hours worked to clean that square footage.

(h)

(i) “Shift” means designated hours of work by an employee, with a designated beginning time and quitting time.

(i)

(j) “Square footage” means a unit of area equal to a square one foot long on each side.

(j)

(k) “Supervisor” has the same meaning as in subdivision (t) of Section 12926 of the Government Code.

SEC. 2.Section 1429 of the Labor Code is amended to read:

1429.

The Division of Labor Standards Enforcement shall not approve the registration of any employer until all of the following conditions are satisfied:

(a)The employer has executed a written application, in a form prescribed by the commissioner and subscribed and sworn to by the employer, containing all of the following:

(1)The name of the business entity and, if applicable, its fictitious or “doing business as” name.

(2)The form of the business entity and, if a corporation, all of the following:

(A)The date of incorporation.

(B)The state in which incorporated.

(C)If a foreign corporation, the date the articles of incorporation were filed with the California Secretary of State.

(D)Whether the corporation is in good standing with the California Secretary of State.

(3)The federal employer identification number (FEIN) and the state employer identification number (SEIN) of the business.

(4)The address of the business and the telephone number and, if applicable, the addresses and telephone numbers of any branch locations, and the name of any subcontractor or franchise servicing the contracts.

(5)Whether the application is for a new or renewal registration and, if the application is for a renewal, the prior registration number.

(6)The names, residential addresses, telephone numbers, and social security or taxpayer identification numbers of the following persons:

(A)All corporate officers, if the business entity is a corporation.

(B)All persons exercising management responsibility in the applicant’s office, regardless of form of business entity.

(C)All persons, except bona fide covered workers on regular salaries, who have a financial interest of 10 percent or more in the business, regardless of the form of business entity, and the actual percent owned by each of those persons.

(7)The policy number, effective date, expiration date, and name and address of the carrier of the applicant business’ current workers’ compensation coverage for all applicants who employ one or more employees and are required to secure workers’ compensation insurance under Section 3700.

(8)(A)Whether the employer and any persons named in response to subparagraph (A), (B), or (C) of paragraph (6) presently:

(i)Owe any unpaid wages.

(ii)Have unpaid wage and hour final judgments outstanding or have not fully satisfied the terms of any administrative settlement pursuant to the Civil Rights Department processes or a final judicial decree for any final judgment for a violation of the California Fair Employment and Housing Act.

(iii)Have any wage and hour liens or suits pending in court against them or pending California Fair Employment and Housing Act claims.

(iv)Owe any unpaid and outstanding payroll taxes, or personal, partnership, or corporate income taxes, Social Security taxes, or disability insurance.

(B)An applicant who answers affirmatively to any item described in subparagraph (A) shall provide, as part of the application, additional information on the unpaid amounts, including the name and address of the party owed, the amount owed, and any existing payment arrangements.

(9)(A)Whether the employer and any persons named in response to subparagraph (A), (B), or (C) of paragraph (6) have ever been cited or assessed any penalty for violating any provision of this code.

(B)An applicant who answers affirmatively to any item described in subparagraph (A) shall provide additional information, as part of the application, on the date, nature of citation, amount of penalties assessed for each citation, and the disposition of the citation, if any. The application shall describe any appeal filed. If the citation was not appealed, or if it was upheld on appeal, the applicant shall state whether the penalty assessment was paid.

(10)Beginning January 1, 2028, whether in the year immediately preceding the date of the application, the employer complied with any regulations adopted pursuant to the process described in Section 1435.

(11)Effective January 1, 2020, all new applications for registration and renewal of registration shall demonstrate completion of the sexual violence and harassment prevention training requirements prescribed by the division and developed pursuant to Section 1429.5 by providing written attestation to the commissioner that the training has been provided as required. Effective January 1, 2022, the attestation shall include whether the training was provided by a peer trainer and an explanation as to why a peer trainer was not used if a peer trainer did not provide the required training.

(12)Such other information as the commissioner requires for the administration and enforcement of this part.

(b)The employer has paid a registration fee to the Division of Labor Standards Enforcement pursuant to Section 1427.

(c)Notwithstanding any other law, violation of this section shall not be a crime.

SEC. 3.SEC. 2.

 Section 1429.5 of the Labor Code is amended to read:

1429.5.

 (a) The Division of Labor Standards Enforcement shall establish by January 1, 2019, a biennial in-person sexual violence and harassment prevention training requirement to be provided by employers governed by this part for nonsupervisory covered workers and supervisors of nonsupervisory covered workers. The training content and qualifications for trainers for supervisory workers shall be consistent with the training requirements of Section 12950.1 of the Government Code and subsequent amendments to those requirements. The training content for nonsupervisors shall also be consistent with the requirements of Section 12950.1 of the Government Code and subsequent amendments to those requirements. The qualifications for trainers for nonsupervisors are set forth in this section. The training required under this section shall be in lieu of, and not in addition to, the requirements for training under Section 12950.1 of the Government Code, as long as the training pursuant to this section meets or exceeds the requirements for training under Section 12950.1 of the Government Code, apart from the aforementioned distinction regarding trainer qualification for nonsupervisory training.

(b) To assist in developing these standards, the director shall convene a training advisory committee to recommend requirements for a sexual harassment prevention training program. The training advisory committee shall be composed of representatives of the Division of Labor Standards Enforcement, the Division of Occupational Safety and Health, and the Civil Rights Department, and shall also include representatives from a recognized or certified collective bargaining agent that represents janitorial workers, employers, labor-management groups in the janitorial industry, sexual assault victims advocacy groups, and other related subject matter experts. The director shall convene the training advisory committee by July 1, 2017. The training advisory committee shall consider the requirements of Section 12950.1 of the Government Code when developing the recommended standard. The Division of Labor Standards Enforcement shall propose the requirements for the sexual violence and harassment prevention training requirement by January 1, 2018.

(c) The director shall convene a training advisory committee to assist in compiling a list of qualified organizations that shall provide to employers the qualified peer trainers that employers shall use to provide the required training to nonsupervisors, as described below. The training advisory committee shall be composed of representatives from a recognized or certified collective bargaining agent that represents janitorial workers, representatives of janitorial workers, janitorial employers, and sexual assault victims advocates. By January 1, 2021, the department shall make available on its internet website the list of qualified organizations that employers shall use to locate a qualified peer trainer in a particular county to provide the required nonsupervisory training. The qualified organization shall provide to the Division of Labor Standards Enforcement the name, contact information, and service area of the qualified organization for inclusion on the website.

(d) The Division of Labor Standards Enforcement shall require employers covered by this part subject to the biennial training requirement to provide the training content developed by the Labor Occupational Health Program (LOHP) under the direction of the director, or as amended in the future by the director.

(e) (1) Employers covered by this part subject to the biennial training requirement shall use a qualified organization from the list maintained by the director to provide the required training to nonsupervisors. Qualified organizations shall provide qualified peer trainers that employers covered by this part shall use to provide the required training to nonsupervisors.

(2) Until January 1, 2026, unless an alternative payment option has been agreed to under a collective bargaining agreement, the employer shall pay the qualified organization as follows:

(A) Eighty dollars ($80) per participant for training sessions having 10 or more participants.

(B) Two hundred dollars ($200) per participant for training sessions having fewer than 10 participants.

(3) On and after January 1, 2026, and each year thereafter, the rates the employer shall pay the qualified organization shall increase by the percentage reflected in the most recent annual average California Price Index Changes - California (All Urban Consumers) report issued by the Department of Industrial Relations.

(4) A covered employer shall document compliance with the training requirement by completing and signing a form, to be developed by the Division of Labor Standards Enforcement, certifying that the training was conducted and that the qualified organization was paid in full, and the form shall be produced upon request of the Division of Labor Standards Enforcement. A covered employer shall also document compliance with the training requirement by ensuring that each participant sign in and sign out on a sign-in sheet, using printed writing and signature, at the commencement and completion of training, in addition to any regulatory documentation retention requirements adopted by the Division of Labor Standards Enforcement.

(f) The training advisory committee shall recommend the qualified organizations to the director. A qualified organization shall be a nonprofit corporation as described in subsection (c) of Section 501 of the Internal Revenue Code of the United States (26 U.S.C. 501(c)), that on its own or through its training partners complies with all of the following:

(1) Have and maintain at least 30 qualified peer trainers who are available to provide training to nonsupervisors covered workers as required under this part.

(2) Have access to local and regional sexual violence-related trauma services and resources for local referrals documented through letters of acknowledgment from service providers.

(3) Be committed to ongoing education and development as documented by a minimum of 10 hours of professional development each year for qualified organization staff and peer trainers in areas of research and strategies to prevent and respond to sexual assault and sexual harassment.

(4) Have seven years of demonstrated experience working with employers to provide training to employees both on and off the worksite in the janitorial industry, including seven years demonstrated experience working with immigrant low-wage workers.

(g) To be qualified as a peer trainer under this section, a person shall have the training, knowledge, and experience necessary to train nonsupervisory covered workers and shall, at the minimum, have all of the following qualifications:

(1) At least a cumulative 40 hours of sexual assault advocate training in the following areas:

(A) Survivor-centered and trauma-informed principles and techniques.

(B) The long-term effects of sexual trauma and the intersection of discrimination, oppression, and sexual violence.

(C) The availability of local, state, and national resources for survivors of sexual violence.

(D) Interactive teaching strategies that engage across multiple literacy levels.

(E) Conducting discrimination, retaliation, and sexual harassment prevention training.

(F) Responding to sexual harassment complaints or other discrimination complaints.

(G) Employer responsibility to conduct investigations of sexual harassment complaints.

(H) Advising covered workers regarding discrimination, retaliation, and sexual harassment prevention.

(2) Have two years of nonsupervisory work experience in the janitorial or property service industry.

(3) Be culturally competent and fluent in the language or languages that the relevant covered workers understand.

(h) The director shall maintain the list of qualified organizations. The list shall be updated by the director with assistance from the training advisory committee at least once every three years. The director may approve qualified organizations on an ongoing basis, if they meet the qualifications required by subdivision (f). The fee per participant may be adjusted by the Labor Commissioner as needed.

(i) The training advisory committee shall meet at least once every three years to review and update the list of qualified organizations and qualified peer trainers.

(j) A qualified organization may work with a training partner to provide the required training, provided that the qualified organization has entered into a written partnership agreement with the training partner. As used in this subdivision, “training partner” means a nonprofit, worker center, or labor organization with at least two years of demonstrated experience in addressing workplace sexual abuse, immigrants’ rights advocacy, and worker rights advocacy.

(k) (1) If the internet website list of qualified organizations that provide peer trainers to employers required to provide training to nonsupervisors under this section indicates there is no qualified peer trainer available to provide training in a specific county, or if none of the qualified trainers are available to meet an employer’s training needs, an employer may use a trainer as prescribed by the Civil Rights Department with respect to sexual harassment training and education to provide training to covered workers working in that specific county.

(2) An employer governed by this part shall be deemed to be in compliance with the requirement to use a peer trainer to provide the required training if they contracted with a qualified organization that was listed on the department’s internet website at the time of the training.

SEC. 4.Section 1430 of the Labor Code is amended to read:

1430.

The Division of Labor Standards Enforcement shall not register or renew the registration of an employer in any of the following circumstances:

(a)The employer has not fully satisfied any final judgment for unpaid wages due to an employee or former employee of a business for which the employer is required to register under this chapter.

(b)The employer has failed to remit the proper amount of contributions required by the Unemployment Insurance Code or the Employment Development Department has made an assessment for those unpaid contributions against the employer that has become final and the employer has not fully paid the amount of delinquency for those unpaid contributions.

(c)The employer has failed to remit the amount of Social Security and Medicare tax contributions required by the Federal Insurance Contributions Act (FICA) to the Internal Revenue Service and the employer has not fully paid the amount or delinquency for those unpaid contributions.

(d)The employer has not fully satisfied the terms of any administrative settlement pursuant to the Civil Rights Department processes or a final judicial decree agreed upon with an employee or former employee of a business for which the employer is required to register under this part for any final judgment for a violation of Section 12940 of the Government Code.

(e)The employer has not fully satisfied any final judgment for failing to secure valid workers’ compensation coverage as required by Section 3700.

(f)The division has determined the employer or its agents have, in their capacity as the employer or as an agent of the employer, committed any act, or caused any act to be done, that constitutes a crime involving moral turpitude, or the effect of which causes any act to be done that constitutes a crime involving moral turpitude under any law of the State of California.

(g)Beginning January 1, 2028, the employer fails, refuses, or is unable to attest under penalty of perjury that, in the year immediately preceding submission of the application, the employer complied with any regulations adopted pursuant to the process described in Section 1435.

(h)The division has determined the employer misrepresented or falsified one or more responses in the application for registration.

(i)The division has determined the employer failed or refused to comply with any provision of this part or regulations adopted pursuant to this part.

SEC. 5.Section 1435 is added to the Labor Code, immediately following Section 1434, to read:

1435.

(a)No later than July 1, 2025, the Division of Labor Standards Enforcement shall establish a seven-person advisory committee, composed of all of the following members:

(1)One representative from the Division of Labor Standards Enforcement.

(2)Two representatives from a recognized or certified collective bargaining agent that represents janitorial workers.

(3)Two representatives from the janitorial industry.

(4)Two representatives from joint labor-management groups in the janitorial industry.

(b)By January 1, 2026, the advisory committee shall approve, through a majority vote, a comprehensive set of recommended regulations establishing janitorial standards for the purpose of protecting the health and safety of workers.

(c)In developing the proposed regulations, the advisory committee shall consider, weigh, and be guided by relevant municipal ordinances and collective bargaining agreements and determine the time it reasonably takes workers to properly clean a given space without a high risk of incurring repetitive motion injuries, considering all of the following factors:

(1)Standard of cleaning, such as daily, interim, or restorative.

(2)Type of facility.

(3)Tools and equipment.

(4)Level of training.

(5)Square footage to be cleaned.

(6)The combination of tasks assigned throughout the shift.

(d)By no later than July 1, 2026, the Division of Labor Standards Enforcement shall submit proposed regulations to the Office of Administrative Law for review and approval that are consistent with the advisory committee’s recommendations.

SEC. 6.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

SEC. 3.

 Section 1429.6 is added to the Labor Code, to read:

1429.6.

 (a) The division shall direct one or more of the following entities, as appropriate, to conduct a study evaluating opportunities to improve worker safety and safeguard employment rights in the janitorial industry: the University of California through its Labor Centers; the Labor Occupational Health Program, University of California Berkeley; the University of California San Francisco, Division of Occupational, Environmental, and Climate Medicine; the University of California, Berkeley, School of Public Health, Division of Environmental Health Sciences; and the University of California Ergonomics Research and Graduate Training Program. The entity or entities so directed shall timely conduct the study in the manner described in this section.

(b) No later than February 1, 2025, the division shall convene an advisory committee comprised of representatives from the division; the Division of Occupational Safety and Health; the Division of Workers’ Compensation; the Civil Rights Department; a recognized or certified collective bargaining agent that represents janitorial workers throughout the state; employers and labor management groups in the janitorial industry; the University of California entity or entities responsible for conducting the study pursuant to subdivision (a); and other relevant subject matter experts.

(c) No later than March 1, 2025, the advisory committee shall make recommendations regarding the scope of the study required pursuant to subdivision (a).

(d) (1) The division shall submit a report in writing to the members of the advisory committee and the Chairs of the Assembly Committee on Labor and Employment and the Senate Committee on Labor, Public Employment and Retirement, on or before January 1, 2026, with the results of the study conducted pursuant to subdivision (a). The report shall include, but not be limited to, all of the following:

(A) Typical production rates in the janitorial industry based on cleaning frequency and the type of public and private sector facility being cleaned. Where available, the information shall be derived in part from janitorial service contracts pertaining to the largest state and local government facilities, public university and community college facilities, and the largest commercial real estate and high-tech and biotech facilities. The names of the contracting entity and the janitorial contractor may be omitted in the report.

(B) Production rates before, during, and after the COVID-19 public health emergency.

(C) Assessment of the risk of ergonomic and other injuries associated with cleaning frequencies and production rates.

(D) Analysis of California workers’ compensation data in the janitorial industry showing types of injury, frequency of reporting, and cost of treatment over the last 10 years.

(E) The prevalence of wage theft in the janitorial industry and how it impacts production rates and worker recruitment and retention.

(F) Whether production rates and the prevalence of wage theft differ between employers that are signatories to collective bargaining agreements and those that are not.

(G) The impacts of gender, race, national origin, disability, and age on production rates and compliance with labor laws.

(2) The report required pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.

(e) In developing the report required pursuant to subdivision (d), the University of California entity or entities responsible for the study and the division shall consider and be guided by the recommendations of the advisory committee.

(f) An employer shall provide to the University of California entity or entities responsible for the study described in subdivision (a) access to the place of employment that is provided to the Division of Occupational Safety and Health, or its designee, as required by Chapter 1 (commencing with Section 6300) of Part 1 of Division 5, and that is provided to the Labor Commissioner pursuant to Section 90, for the purpose of completing the study described in subdivision (a).

(g) This section shall remain in effect only until January 1, 2027, and as of that date is repealed.