BILL NUMBER: AB 2213 ENROLLED
BILL TEXT
PASSED THE ASSEMBLY AUGUST 25, 2004
PASSED THE SENATE AUGUST 23, 2004
AMENDED IN SENATE AUGUST 18, 2004
AMENDED IN SENATE JULY 15, 2004
AMENDED IN ASSEMBLY MAY 20, 2004
INTRODUCED BY Assembly Member Goldberg
(Coauthor: Assembly Member Koretz)
FEBRUARY 18, 2004
An act to add and repeal Part 9.5 (commencing with Section 2550)
of Division 2 of the Labor Code, relating to janitorial service
contractors.
LEGISLATIVE COUNSEL'S DIGEST
AB 2213, Goldberg. Janitorial service contractors.
Existing law regulates various aspects of workplace and employee
safety and health.
This bill would, until January 1, 2010, regulate the janitorial
service industry by providing specific recordkeeping requirements
that employers of janitors must implement with regard to janitorial
wages, hours, and working conditions. The bill would require
employers of janitors to register with the Labor Commissioner and pay
a specified registration fee. Failure to register pursuant to these
provisions would subject the employer to a civil fine of $100 for
each calendar day of violation, not to exceed $10,000. These fines
and registration fees would be deposited in the Janitorial Worker
Restitution Fund and the Janitorial Registration Fund, which this
bill would create, for disbursement by the commissioner, upon
appropriation by the Legislature.
The bill would state the intent of the Legislature to require the
Labor Commissioner to report on labor law violations and enforcement
in the janitorial service industry.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) California is home to thousands of full-time janitorial
service contractors that employ tens of thousands of janitors.
(b) The work performed by janitors is laborious and potentially
hazardous.
(c) Janitors work long hours and may service several buildings on
any given workday.
(d) According to various legal advocates, the janitorial industry
is plagued with labor law violations, including minimum wage,
overtime, and rest and meal period violations.
(e) Some janitorial employees are paid below the minimum wage and
not paid at an overtime rate for overtime hours worked.
(f) A number of janitors have been harassed, intimidated, and
mistreated by their employers because of their immigration status.
(g) As a result of low wages and widespread labor law violations,
some janitors are forced to work in substandard working conditions.
(h) Existing labor laws and enforcement efforts have failed to
remedy these problems.
(i) Therefore, it is the intent of the Legislature, in enacting
this act, to establish a system of registration, bonding
requirements, and enforcement to impose prompt and effective civil
sanctions for the violation of the provisions set forth in this act
or any provision of law applicable to the employment of workers in
the janitorial service industry.
SEC. 2. Part 9.5 (commencing with Section 2550) is added to
Division 2 of the Labor Code, to read:
PART 9.5. JANITORIAL SERVICE CONTRACTORS
CHAPTER 1. GENERAL PROVISIONS
2550. The enactment of this part is an exercise of the police
power of the State of California for the protection of the public
welfare, prosperity, health, safety, and peace of its people. The
civil penalties provided by this chapter are in addition to any other
penalty provided by law.
2551. As used in this part:
(a) "Janitorial service" means the contracted or subcontracted
cleaning of the interior space of nonresidential properties,
including vacuuming, dusting, trash removal, restroom cleaning,
carpet and floor maintenance, and like services to clean and restore
the occupied space of buildings.
(b) "Employer" means any individual, partnership, corporation,
limited liability company, joint venture, or association engaged in
the business of providing janitorial service that engages any other
individual in providing those services.
(c) "Employee" means any person, including an alien or minor, who
renders actual janitorial services in any business for an employer
for wages, whether the wages are reported as required by state and
federal law, and whether wages are calculated by time, piece, task,
commission, or other method of calculation, and whether the services
are rendered on a commission, concessionaire, or other basis.
(d) "Commissioner" means the Labor Commissioner.
2552. Every employer shall keep accurate records for three years,
showing all of the following:
(a) The names and addresses of all employees engaged in rendering
actual services for any business of the employer.
(b) The hours worked daily by each employee, including the times
the employee begins and ends each work period.
(c) The wage and wage rate paid each payroll period.
(d) The age of all minor employees.
(e) Any other conditions of employment.
2553. The Division of Labor Standards Enforcement shall enforce
this chapter. The commissioner may adopt any regulations necessary
to carry out the provisions of this chapter.
CHAPTER 2. REGISTRATION
2554. Every employer shall register with the commissioner
annually.
2555. The commissioner may not permit any employer to register,
nor may the commissioner permit any employer to renew registration,
until all of the following conditions are satisfied:
(a) The employer has applied for registration to the commissioner
by presenting proof of compliance with the local government's
business licensing or regional regulatory requirements, if any.
(b) The employer has obtained a surety bond issued by a surety
company admitted to do business in this state. The principal sum of
the bond shall be not less than ten thousand dollars ($10,000). The
employer shall file a copy of the bond with the commissioner.
(1) The bond required by this section shall be in favor of, and
payable to the people of the State of California and shall be for the
benefit of any employee damaged by his or her employer's failure to
pay wages, interest on wages, or fringe benefits.
(2) Thirty days prior to the cancellation or termination of any
surety bond required by this section, the surety shall send written
notice to both the employer and the commissioner, identifying the
bond and the date of the cancellation or termination.
(3) An employer may not conduct any business until the employer
obtains a new surety bond and files a copy of it with the
commissioner.
(c) The employer has documented that a current workers'
compensation insurance policy is in effect for all employees.
(d) The employer has paid the fee required pursuant to Section
2559.
2556. When a certificate of registration is originally issued or
renewed under this chapter, the commissioner shall provide related
and supplemental information to the registrant regarding business
administration and applicable labor laws.
2557. Proof of registration shall be by an official Division of
Labor Standards Enforcement registration form. Each employer shall
post the registration form where it may be read by the employees
during the workday.
2558. At least 30 days prior to the expiration of each registrant'
s registration, the commissioner shall mail a renewal notice to the
last known address of the registrant. However, omission of the
commissioner to provide the renewal notice in accordance with this
section may not excuse a registrant from making timely application
for renewal of registration, may not be a defense in any action or
proceeding involving failure to renew registration, and may not
subject the commissioner to any legal liability.
2559. Each employer shall pay the commissioner a registration fee
of four hundred dollars ($400). The commissioner may periodically
adjust the registration fee for inflation to ensure that the fee is
sufficient to fund all costs to administer and enforce the provisions
of this part.
2560. No employer may conduct business without complying with the
registration and bond requirements of this chapter.
2561. The commissioner may 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, subscribed, and sworn by the
employer, containing the following:
(1) The name of the business entity and, if applicable, all
fictitious or "doing business as" names.
(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 Secretary
of State.
(3) The federal employer identification number (FEIN) and the
state employer identification number (SEIN) of the business.
(4) The business' address and telephone number and, if applicable,
the addresses and telephone numbers of any office locations of the
employer.
(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 numbers of the following persons:
(A) All corporate officers, if the business entity is a
corporation.
(B) All persons, except bona fide employees 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.
(8) Whether any persons named in response to subparagraph (A) or
(B) of paragraph (6) presently:
(A) Owe any unpaid wages.
(B) Have unpaid judgments outstanding.
(C) Have any liens or suits pending in court against himself or
herself.
(D) Owe payroll taxes, or personal, partnership, or corporate
income taxes, Social Security taxes, or disability insurance.
An applicant who answers affirmatively to any item described in
this paragraph 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) Whether any persons named in response to subparagraph (A) or
(B) of paragraph (6) have ever been cited or assessed any penalty for
violating any provision of this code.
An applicant who answers affirmatively to any item described in
this paragraph 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.
(b) The employer has paid a registration fee to the commissioner
pursuant to Section 2559.
2562. The commissioner may 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 an
assessment made by the Employment Development Department for those
unpaid contributions against the employer 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.
2563. The Labor Commissioner shall post on the Web site of the
Department of Industrial Relations a list of registered janitorial
service businesses, including the name, address, registration number,
and effective dates of registration.
2564. (a) An employer who fails to register pursuant to Section
2554 is subject to a civil fine of one hundred dollars ($100) for
each calendar day, not to exceed ten thousand dollars ($10,000), the
employer conducts janitorial service while unregistered.
(b) The appeal of any citation issued pursuant to subdivision (a)
shall follow the procedures prescribed in Section 226.5.
2565. (a) (1) The Janitorial Worker Restitution Fund is
established in the State Treasury. Fifty dollars ($50) of each
registrant's annual registration fee required pursuant to Section
2559 shall be deposited into this fund. In addition, the fines
collected pursuant to Section 2564 shall be deposited into the fund.
(2) Moneys from the fund shall be disbursed, upon appropriation by
the Legislature, only to persons determined by the commissioner to
have been damaged by the failure to pay wages, penalties, and other
related damages by any employer, to ensure the payment of wages,
penalties, and other related damages. Any disbursed funds
subsequently recovered by the commissioner shall be returned to the
fund.
(3) The Department of Industrial Relations may establish through
regulation any procedures necessary to carry out the provisions of
this section.
(b) The Janitorial Registration Fund is established in the State
Treasury. The remainder of the registrant's annual registration fee
collected pursuant to Section 2559 shall be deposited into this fund
and, upon appropriation by the Legislature, applied to costs incurred
by the commissioner in administering the provisions of this part and
enforcement and investigation of the janitorial service industry.
CHAPTER 3. SUCCESSORSHIP
2566. A successor to any employer that is engaged in janitorial
service that owed wages and penalties to the predecessor's former
employee or employees is liable for those wages and penalties if the
successor meets any of the following criteria:
(a) Uses substantially the same facilities or workforce or same
customer base to offer substantially the same services as the
predecessor employer.
(b) Shares in the ownership, management, or control of the labor
relations or interrelations of business operations with the
predecessor employer.
(c) Employs in a managerial capacity any person who directly or
indirectly controlled the wages, hours, or working conditions of the
affected employees of the predecessor employer.
(d) Is an immediate family member of any owner, partner, officer,
or director of the predecessor employer, or of any person who had a
financial interest in the predecessor employer.
CHAPTER 4. OPERATION
2567. This part shall remain in effect only until January 1,
2010, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2010, deletes or extends
that date.
SEC. 3. It is the intent of the Legislature to instruct the Labor
Commissioner, prior to January 1, 2010, to study and report to the
Legislature on the status of labor law violations and enforcement in
the janitorial service industry.