Amended in Assembly May 18, 2015

Amended in Assembly May 14, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 359


Introduced by Assembly Member Gonzalez

(Principal coauthor: Assembly Member Ridley-Thomas)

(Principal coauthor: Senator Leyva)

(Coauthors: Assembly Members Bonilla, Bonta,begin delete and Chiuend deletebegin insert Chiu, Eduardo Garcia, Gatto, Holden, end insertbegin insertO‘Donnell, and Rendonend insert)

February 17, 2015


An act to add Part 9.5 (commencing with Section 2500) to Division 2 of the Labor Code, relating to grocery workers.

LEGISLATIVE COUNSEL’S DIGEST

AB 359, as amended, Gonzalez. Grocery workers.

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

This bill, upon a change inbegin delete control, as defined,end deletebegin insert controlend insert of a grocery establishment, would require an incumbent grocerybegin delete employer, as defined,end deletebegin insert employerend insert to prepare a list of specified eligible grocerybegin delete workers, as defined,end deletebegin insert workersend insert for a successor grocery employer,begin delete as defined,end delete and would require the successor grocery employer to 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, prohibit the successor grocery employer from discharging those workersbegin insert without causeend insert during that period, and, upon the close of that period, require the successor grocery employer to consider offering continued employment to those workers.begin delete 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.end delete 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.

This bill would provide that its provisions are severable.

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

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

P2    1

SECTION 1.  

Part 9.5 (commencing with Section 2500) is
2added to Division 2 of the Labor Code, to read:

3 

4PART 9.5.  Grocery Workers

5

 

6

2500.  

(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
20begin delete will ensureend deletebegin insert ensuresend insert stability throughout the state for these vital
21workers, which, in turn,begin delete will resultend deletebegin insert resultsend insert in preservation of health
22and safety standards.

23

2502.  

For purposes of this part, the following definitions shall
24apply:

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 person
5who controls the incumbent grocery employer or any grocery
6establishment under the operation or control of either the incumbent
7grocery employer or any person who controls the incumbent
8grocery 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
25of fresh produce, meats, poultry, fish, deli products, dairy products,
26canned 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 at the time of the
31change in 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 in
39control.

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

3

2504.  

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

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 the
14successor 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 of
18that 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

2506.  

(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 agreement,
29if 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 incumbent
33grocery employer, the successor grocery employer shall retain
34eligible grocery workers by seniority within each job classification
35to the extent that comparable job classifications exist or pursuant
36to the terms of a relevant collective bargaining agreement, if any.
37Nonclassified eligible grocery workers shall be retained by
38seniority and according to experience or pursuant to the terms of
39a 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

2508.  

(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, and
24the 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.

begin delete
29

2510.  

(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 plan.

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

end delete
12

2512.  

Parties subject to this part may, by collective bargaining
13agreement, provide that the agreement supersedes the requirements
14of this part.

15

2516.  

This part shall not apply to grocery establishments that
16will be located in geographic areas designated by the United States
17Department of Agriculture as a food desert, based on the original
18food desert measure contained in the Food Access Research Atlas,
19provided that both of the following apply:

20(a) More than six years have elapsed since the most recent
21grocery establishment was located in the area designated as a food
22desert.

23(b) The grocery establishment stocks and during normal business
24hours sells fresh fruit and vegetables in amounts and of a quality
25that is comparable to what the establishment sells in its three
26geographically closest stores, which are located outside of the food
27 desert.

28

2518.  

This part shall not be construed to limit an eligible
29grocery worker’s right to bring legal action for wrongful
30termination.

31

2520.  

This part does not preempt any city, county, or city and
32county ordinances that provide equal or greater protection to
33eligible grocery workers.

34

2522.  

The provisions of this part are severable. If any provision
35of this part or its application is held invalid, that invalidity shall
36not affect other provisions or applications that can be given effect
37without the invalid provision or application.



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