Bill Text: CA AB2374 | 2023-2024 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Displaced janitors.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed) 2024-08-15 - In committee: Held under submission. [AB2374 Detail]
Download: California-2023-AB2374-Introduced.html
If an An awarding authority notifies a contractor that the service contract between the awarding authority and the contractor has been terminated or will be terminated, the awarding authority shall indicate in that notification whether a successor service contract has been or will be awarded in its place and, if so, shall identify the name and address of the successor contractor. shall notify in writing the
contractor, the union that represents the employees, and the employees within five days of making the decision to terminate a service contract. The notice shall specify the date the service contract shall terminate, the date the successor contractor starts, and the identity and contact information for the successor contractor. The terminated contractor shall, within three working days after receiving that notification, provide to the representing union and successor contractor identified by the awarding authority, the name, phone number, date of hire, and job classification of each employee currently employed at the site or sites covered by the terminated service contract at the time of the contract termination.
contract.An (1) The Labor Commissioner may enforce this chapter, including investigating an alleged violation and ordering appropriate temporary relief to mitigate the violation pending the completion of an investigation or hearing, through the procedures set forth in Section 98.3, 98.7, 98.74, or 1197.1, including by issuing a citation against an employer who violates this section or by filing a civil action.
Bill Title: Displaced janitors.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed) 2024-08-15 - In committee: Held under submission. [AB2374 Detail]
Download: California-2023-AB2374-Introduced.html
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 2374
| Introduced by Assembly Member Haney |
February 12, 2024 |
An act to amend Sections 1060, 1061, and 1062 of the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2374, as introduced, Haney.
Displaced janitors.
Existing law, the Displaced Janitor Opportunity Act, requires contractors and subcontractors, as defined, that are awarded contracts or subcontracts, on and after January 1, 2002, for janitorial or building maintenance services at a particular job site or sites, to retain, for a period of 60 days, certain employees who were employed at that site by the previous contractor or subcontractor. Under the act, a “contractor” means any person that employees 25 or more individuals and that enters into a service contract with the awarding authority. Existing law requires employees retained for that 60-day period to be offered continued employment if their performance during that 60-day period is satisfactory.
This bill would, instead, define the term “contractor” to mean any person that employs janitor employees and that enters into a service contract with
the awarding authority. The bill would make related changes to various definitions used in the act.
This bill would extend the above-described timeframe for which a successor contractor or subcontractor is required to retain employees of a terminated contractor or subcontractor to 90 days. The bill would require the successor contractor or subcontractor, during the 90-day transition period, to maintain a preferential hiring list of eligible covered employees by seniority within job classifications. The bill would also require employees retained for the 90-day period to be offered continued employment if their performance during that 90-day period is satisfactory. The bill would require that offer to be contemporaneously shared with the union representing the employees, if applicable.
Among other changes, the bill would require an awarding authority that enters into contracts or subcontracts for janitorial or building
services to provide written notification to the union that represents the employees and the employees within 5 days of making the decision to terminate a service contract, and would prescribe specified elements to be included in that notification, including the termination date of the service contract. Additionally, the bill would require a successor contractor or subcontractor to maintain the same work schedules and pay the same wages and benefits as those of the prior contractor or subcontractor. The bill would further provide that a successor contractor would be bound by the collective bargaining agreement of the former contractor.
Existing law authorizes an employee who was not offered employment or was discharged in violation of these provisions to bring an enforcement action against a successor contractor or successor subcontractor in a court of competent jurisdiction. Existing law requires a court to award backpay to an employee if the court finds that the
contractor or subcontractor has violated the act, in addition to other specified remedies.
The bill would also authorize a union representing janitors under the act to bring an enforcement action pursuant to these provisions. The bill would require a court to award treble damages for a violation, if it finds that a party’s violation of the act was willful. The bill would additionally authorize the Labor Commissioner to enforce these provisions and to recover specified remedies on behalf of an aggrieved employee, including hiring and reinstatement rights. The bill would make an employer, agent of any employer, or other person who violates these provisions subject to specified civil penalties and liquidated damages, and would require the liquidated damages to be deposited into the Labor and Workforce Development Fund and paid to the employee as compensatory damages. The bill would authorize the Labor Commissioner to promulgate and enforce rules and regulations and to
issue determinations and interpretations.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 1060 of the Labor Code is amended to read:1060.
The following definitions shall apply throughout this chapter:(a) “Awarding authority” means any person that awards or otherwise enters into contracts for janitorial or building maintenance services performed within the State of California, including any subcontracts for janitorial or building maintenance services.
(b) “Contractor” means any person that employs 25 or more individuals and janitor employees and that enters into a service contract with the awarding authority.
(c) “Employee” means any person employed as a service employee of a contractor or subcontractor who works at least 15 hours per week and
contractor, subcontractor, or in house janitorial service whose primary place of employment is in the State of California under a contract or agreement to provide janitorial or building maintenance services. “Employee” does not include a person who is a managerial, supervisory, or confidential employee, including those employees who would be so defined under the federal Fair Labor Standards Act.
(d) “Person” means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ individuals or enter into contracts.
(e) “Service contract” means any contract that has the principal purpose of providing services through the use of service employees.
employees, including in-house janitorial services.
(f) “Subcontractor” means any person who is not an employee who enters into a contract with a contractor to assist the contractor in performing a service contract.
(g) “Successor service contract” means a service contract for the performance of essentially the same services as were previously performed pursuant to a different service contract at the same facility that terminated within the previous 30 days. A service contract entered into more than 30 days after the termination of a predecessor service contract shall be considered a “successor service contract” if its execution was delayed for the purpose of avoiding application of this chapter.
(h) “Union” means any union that represents janitors or maintenance workers.
SEC. 2.
Section 1061 of the Labor Code is amended to read:1061.
(a) (1)(2) If the terminated contractor has not learned the identity of the successor contractor, if any, the terminated contractor shall provide that information to the awarding authority, which shall be responsible for providing that information to the successor contractor as soon as that the name, phone number, date of hire, and job classification of each employee currently employed at the site or sites covered by the terminating service contract to the awarding authority, which shall provide that information to the successor contractor and, if the janitors are represented by a union, to that union, as soon as that successor contractor has been selected.
(3) The requirements of this section shall be equally applicable to all subcontractors of a terminated contractor.
(b) (1) A successor contractor or successor subcontractor shall retain, for a 60-day 90-day transition employment period, employees who have been employed by the terminated contractor or its subcontractors, if any, for the preceding four months or longer at the site or sites covered by the successor service contract unless the successor contractor or successor subcontractor has reasonable and substantiated cause not to hire a particular employee based on that employee’s performance or conduct while working under the terminated contract. This requirement shall be stated by awarding authorities in all initial
bid packages that are governed by this chapter.
(2) The successor contractor or successor subcontractor shall make a written offer of employment to each employee, as required by this section, in the employee’s primary language or another language in which the employee is literate. That offer shall state the time within which the employee must accept that offer, but in no case may that time be less than 10 days. Nothing in this section requires the The successor contractor or successor subcontractor to shall maintain the same work schedules, and pay the same wages or offer the same
and benefits as were provided by the prior contractor or prior subcontractor. The offer shall be contemporaneously shared with the union representing those employees, if applicable.
(3) If at any time the successor contractor or successor subcontractor determines that fewer employees are needed to perform services under the successor service contract or successor subcontract than were required by the terminated contractor under the terminated contract or terminated subcontract, the successor contractor or successor subcontractor shall retain employees by seniority within the job classification. classification at the site.
(c) The successor contractor or successor subcontractor, upon commencing service under the successor service contract, shall provide a list of its employees and a list of employees of its subcontractors providing services at the site or sites covered under that contract to the awarding authority. authority and to the union representing those employees, if applicable. These lists shall indicate which of these employees were employed at the site or sites by the terminated contractor or terminated subcontractor. The successor contractor or successor subcontractor shall also provide a list of any of the terminated contractor’s employees who were not retained either by the successor contractor or successor subcontractor, stating the reason these employees were not
retained.
(d) During the 60-day
90-day transition employment period, the successor contractor or successor subcontractor shall maintain a preferential hiring list of eligible covered employees by seniority within job classifications, not retained by the successor contractor or successor subcontractor from which the successor contractor or successor subcontractor shall hire additional employees until such time as all of the terminated contractor’s or terminated subcontractor’s employees have been offered employment with the successor contractor or successor subcontractor.
(e) During the initial 60-day 90-day transition employment period, the
successor contractor or successor subcontractor shall not discharge without cause an employee retained pursuant to this chapter. Cause shall be based only on the performance or conduct of the particular employee.
(f) At the end of the 60-day 90-day transition employment period, a successor contractor or successor subcontractor shall provide a written performance evaluation to each employee retained pursuant to this chapter. If the employee’s performance during that 60-day 90-day period is satisfactory, the successor contractor or successor subcontractor shall offer
the employee continued employment. Any employment after the 60-day 90-day transition employment period shall be at-will employment under which the employee may be terminated without cause.
(g) Any successor contractor shall be bound by the collective bargaining agreement of the former contractor.
SEC. 3.
Section 1062 of the Labor Code is amended to read:1062.
(a)(2) The Labor Commissioner may
recover any of the following remedies on behalf of an aggrieved employee:
(A) Hiring and reinstatement rights pursuant to this chapter.
(B) Front pay or back pay for each day during which the violation continues.
(C) The value of the benefits the employee would have received under any benefit plans.
(3) A person who violates this chapter may be subject to a civil penalty of five hundred dollars ($500) for each employee whose rights under these provisions are violated. An additional amount payable as liquidated damages in the amount of five hundred dollars ($500) per employee, for each day the rights of an employee under this chapter are violated and continuing until the violation is cured, not to exceed ten thousand dollars ($10,000) per employee, which
may be recovered by the Labor Commissioner, deposited into the Labor and Workforce Development Fund, and paid to the employee as compensatory damages.
(4) Citation procedures for issuing, contesting, and enforcing judgments for citations and civil penalties issued by the Labor Commissioner shall be the same as those set forth in Section 98.74 or 1197.1, as appropriate.
(5) In a civil action, the Labor Commissioner may also recover all remedies set forth in subdivision (d). In an administrative or civil action brought under this section, the Labor Commissioner or court shall award interest on all amounts due and unpaid at the rate of interest specified in subdivision (b) of Section 3289 of the Civil Code.
(b) A union representing janitors who have not been offered employment or who have been discharged, or an employee, who was not offered employment or who has been discharged in violation of this chapter by a successor contractor or successor subcontractor, or an agent of the employee may bring an action against a successor contractor or
contractor,
successor subcontractor subcontractor, in-house provider, or the awarding authority in any superior court of the State of California having jurisdiction over the successor contractor or successor subcontractor. action. Upon finding a violation of this chapter, the court shall award backpay, including the value of benefits, for each day during which the violation has occurred and continues to occur. Upon finding that a party’s violation of this chapter was willful, the court shall award treble damages. The amount
of backpay shall be calculated as the greater of either of the following:
(1) The average regular rate of pay received by the employee during the last three years of the employee’s employment in the same occupation classification multiplied by the average hours worked during the last three years of the employee’s employment.
(2) The final regular rate of pay received by the employee at the time of termination of the predecessor contract multiplied by the number of hours usually worked by the employee.
(b)
(c) The court may order a preliminary or
permanent injunction to stop the continued violation of this chapter.
(c)
(d) If the employee is the prevailing party in the legal action, the court shall award the employee reasonable attorney’s fees and costs as part of the costs recoverable.
(d)
(e) In the absence of a claim by an employee that he or she was
they were terminated in violation of this chapter, an employee may not maintain a cause of action under this chapter solely for the failure of an employer to provide a written performance evaluation.
(f) The remedies, penalties, and procedures provided under this section are cumulative.
(g) The Labor Commissioner may promulgate and enforce rules and regulations and issue determinations and interpretations consistent with and necessary for the implementation of this section.
