Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 359


Introduced by Assembly Member Gonzalez

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(Principal coauthor: Assembly Member Ridley-Thomas)

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(Principal coauthor: Senator Leyva)

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(Coauthors: Assembly Members Bonilla, Bonta, and Chiu)

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February 17, 2015


begin delete An act to amend Section 2800 of the Labor Code, relating to employment. end deletebegin insertAn act to add Part 9.5 (commencing with Section 2500) to Division 2 of the Labor Code, relating to grocery workers.end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 359, as amended, Gonzalez. begin deleteEmployer obligations: indemnification. end deletebegin insertGrocery workers.end insert

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Existing law regulates various aspects of the workplace and employee safety and health.

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This bill would require, upon a change in control, as defined, of a grocery establishment, that an incumbent grocery employer, as defined, prepare a list of specified eligible grocery workers, as defined, for a successor grocery employer, as defined, and would require that the successor grocery employer hire from this list during a 90-day transition period. The bill would require the successor grocery employer to retain eligible grocery workers for a 90-day period, during which time an employee may only be discharged for cause, and, upon the close of that period, the successor grocery employer would be required to consider offering continued employment to these workers. The bill would additionally authorize eligible grocery workers to bring a cause of action against an incumbent or successor grocery employer for a violation of these provisions, and would specify what may be awarded pursuant to this cause of action. The bill would exempt a grocery establishment located in a food desert from the bill’s requirements, as provided. The bill would provide that a collective bargaining agreement may supersede these requirements and that these provisions do not preempt any local ordinances that provide equal or greater protection to eligible grocery workers.

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This bill would provide that its provisions are severable.

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Existing law requires an employer to indemnify his or her employee for losses caused by the employer’s want of ordinary care.

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This bill would make nonsubstantive changes to that provision.

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Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

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

P2    1begin insert

begin insertSECTION 1.end insert  

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begin insertPart 9.5 (commencing with Section 2500) is added
2to Division 2 of the end insert
begin insertLabor Codeend insertbegin insert, to read:end insert

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3 

4PART begin insert9.5.end insert  Grocery Workers

5

 

6

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(a) Supermarkets and other grocery retailers are the
7primary points of distribution for food and other daily necessities
8for the residents of California and are therefore essential to the
9vitality of every California community.

10(b) The state has a compelling interest in ensuring the welfare
11of the residents of its communities through the maintenance of
12health and safety standards in grocery establishments.

13(c) Experienced grocery retail workers with knowledge of proper
14sanitation procedures, health regulations and laws, and an
15experience-based understanding of the clientele and communities
16in which the retailer is located are essential in furthering this
17interest and the state’s investments in health and safety.

18(d) A transitional retention period for grocery retail workers
19upon change of ownership, control, or operation of grocery stores
20ensures stability throughout the state for these vital workers, which,
21in turn, results in preservation of health and safety standards.

22

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For purposes of this part, the following definitions shall
23apply:

P3    1(a) “Change in control” means any sale, assignment, transfer,
2contribution, or other disposition of all or substantially all of the
3assets or a controlling interest, including by consolidation, merger,
4or reorganization, of the incumbent grocery employer or any
5person who controls the incumbent grocery employer or any
6grocery establishment under the operation or control of either the
7incumbent grocery employer or any person who controls the
8incumbent grocery employer.

9(b) “Eligible grocery worker” means any individual whose
10primary place of employment is at the grocery establishment
11subject to a change in control, and who has worked for the
12incumbent grocery employer for at least six months prior to the
13execution of the transfer document. “Eligible grocery worker”
14does not include a managerial, supervisory, or confidential
15employee.

16(c) “Employment commencement date” means the date on which
17an eligible grocery worker retained by the successor grocery
18employer pursuant to this part commences work for the successor
19grocery employer in exchange for benefits and compensation under
20the terms and conditions established by the successor grocery
21employer and as required by law.

22(d) “Grocery establishment” means a retail store in this state
23that is over 15,000 square feet in size and that sells primarily
24household foodstuffs for offsite consumption, including the sale of
25fresh produce, meats, poultry, fish, deli products, dairy products,
26 canned foods, dry foods, beverages, baked foods, or prepared
27foods. Other household supplies or other products shall be
28secondary to the primary purpose of food sales.

29(e) “Incumbent grocery employer” means the person that owns,
30controls, or operates the grocery establishment prior to the change
31in control.

32(f) “Person” means an individual, corporation, partnership,
33limited partnership, limited liability partnership, limited liability
34company, business trust, estate, trust, association, joint venture,
35agency, instrumentality, or any other legal or commercial entity,
36whether domestic or foreign.

37(g) “Successor grocery employer” means the person that owns,
38controls, or operates the grocery establishment after the change
39in control.

P4    1(h) “Transfer document” means the purchase agreement or
2other document effecting the change in control.

3

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(a) The incumbent grocery employer shall, within 15
4days after the execution of the transfer document, provide to the
5successor grocery employer the name, address, date of hire, and
6employment occupation classification of each eligible grocery
7worker.

8(b) The successor grocery employer shall maintain a preferential
9hiring list of eligible grocery workers identified by the incumbent
10grocery employer pursuant to subdivision (a) and shall hire from
11that list for a period beginning upon the execution of the transfer
12document and continuing for 90 days after the grocery
13establishment is fully operational and open to the public under
14the successor grocery employer.

15(c) If the successor grocery employer extends an offer of
16employment to an eligible grocery worker pursuant to this part,
17the successor grocery employer shall retain written verification
18of that offer for at least three years after the date of the offer. The
19verification shall include the name, address, date of hire, and
20employment occupation classification of each eligible grocery
21worker.

22

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(a) A successor grocery employer shall retain each
23eligible grocery worker hired pursuant to this part for at least 90
24days after the eligible grocery worker’s employment
25commencement date. During this 90-day transition employment
26period, eligible grocery workers shall be employed under the terms
27and conditions established by the successor grocery employer and
28pursuant to the terms of a relevant collective bargaining
29agreement, if any.

30(b) If, within the period established in subdivision (b) of Section
312504, the successor grocery employer determines that it requires
32fewer eligible grocery workers than were required by the
33incumbent grocery employer, the successor grocery employer shall
34retain eligible grocery workers by seniority within each job
35classification to the extent that comparable job classifications exist
36or pursuant to the terms of a relevant collective bargaining
37agreement, if any. Nonclassified eligible grocery workers shall be
38retained by seniority and according to experience or pursuant to
39the terms of a relevant collective bargaining agreement, if any.

P5    1(c) During the 90-day transition employment period, the
2successor grocery employer shall not discharge without cause an
3eligible grocery worker retained pursuant to this part.

4(d) At the end of the 90-day transition employment period, the
5successor grocery employer shall make a written performance
6evaluation for each eligible grocery worker retained pursuant to
7this part. If the eligible grocery worker’s performance during the
890-day transition employment period is satisfactory, the successor
9grocery employer shall consider offering the eligible grocery
10worker continued employment under the terms and conditions
11established by the successor grocery employer and as required by
12law. The successor grocery employer shall retain a record of the
13written performance evaluation for at least three years.

14

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(a) The incumbent grocery employer shall post public
15notice of the change in control at the location of the affected
16grocery establishment within five business days following the
17execution of the transfer document. Notice shall remain posted
18during any closure of the grocery establishment and until the
19grocery establishment is fully operational and open to the public
20under the successor grocery employer.

21(b) Notice shall include, but not be limited to, the name of the
22incumbent grocery employer and its contact information, the name
23of the successor grocery employer and its contact information,
24and the effective date of the change in control.

25(c) Notice shall be posted in a conspicuous place at the grocery
26establishment in a manner to be readily viewed by eligible grocery
27workers and other employees, customers, and members of the
28public.

29

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(a) Eligible grocery workers may bring a cause of action
30in a superior court of the relevant county against the incumbent
31grocery employer or the successor grocery employer for a violation
32of this part and may be awarded any of the following:

33(1) Hiring and reinstatement rights pursuant to this part,
34whereupon the 90-day transition employment period shall not
35commence until the eligible grocery worker’s employment
36commencement date with the successor grocery employer.

37(2) Front pay or back pay for each day during which the
38violation continues, and which shall be calculated at a rate of
39compensation not less than the higher of either:

P6    1(A) The average regular rate of pay received by the eligible
2grocery worker during the last three years of the eligible grocery
3worker’s employment in the same occupation classification.

4(B) The most recent regular rate received by the eligible grocery
5worker while employed by either the incumbent grocery employer
6or the successor grocery employer.

7(3) The value of the benefits the eligible grocery worker would
8have received under the successor grocery employer’s benefit
9plan.

10(b) If the eligible grocery worker is the prevailing party in any
11legal action taken pursuant to this section, the court shall award
12reasonable attorney’s fees and costs as part of the costs
13recoverable.

14

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Parties subject to this part may, by collective bargaining
15agreement, provide that the agreement supersedes the requirements
16of this part.

17

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This part shall not apply to grocery establishments that
18will be located in geographic areas designated by the United States
19Department of Agriculture as a food desert, based on the original
20food desert measure contained in the Food Access Research Atlas,
21provided that both of the following apply:

22(a) More than six years have elapsed since the most recent
23grocery establishment was located in the area designated as a
24food desert.

25(b) The grocery establishment stocks and during normal business
26hours sells fresh fruit and vegetables in amounts and of a quality
27that is comparable to what the establishment sells in its three
28geographically closest stores, which are located outside of the
29food desert.

30

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This part shall not be construed to limit an eligible
31grocery worker’s right to bring legal action for wrongful
32termination.

33

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This part does not preempt any city, county, or city and
34county ordinances that provide equal or greater protection to
35eligible grocery workers.

36

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The provisions of this part are severable. If any provision
37of this part or its application is held invalid, that invalidity shall
38not affect other provisions or applications that can be given effect
39without the invalid provision or application.

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SECTION 1.  

Section 2800 of the Labor Code is amended to read:

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2800.  

An employer shall indemnify his or her employee for
3losses caused by the employer’s want of ordinary care.

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