BILL ANALYSIS Ó
AB 359
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ASSEMBLY THIRD READING
AB
359 (Gonzalez)
As Amended May 18, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
| | | | |
| | | | |
|----------------+------+--------------------+--------------------|
|Labor |5-2 |Roger Hernández, |Harper, Patterson |
| | |Chu, Low, McCarty, | |
| | |Thurmond | |
| | | | |
|----------------+------+--------------------+--------------------|
|Judiciary |7-3 |Mark Stone, Alejo, |Wagner, Gallagher, |
| | |Chau, Chiu, |Maienschein |
| | |Cristina Garcia, | |
| | |Holden, O'Donnell | |
| | | | |
| | | | |
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SUMMARY: Establishes a worker retention requirement for the
change on ownership or control of grocery establishments, as
specified. Specifically, this bill:
1)Defines "grocery establishment" as a retail store that is over
15,000 square feet in size and that sells primarily household
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foodstuffs for offsite consumption, as specified.
2)Defines "incumbent grocery employer" as the person that owns,
controls, or operates a grocery establishment at the time of a
change in control.
3)Defines "successor grocery employer" as the person that owns,
controls, or operates a grocery establishment after a change in
control.
4)Defines "eligible grocery worker" to mean any individual whose
primary place of employment is at the grocery establishment
subject to a change in control and who has worked for the
incumbent grocery employer for at least six months prior to the
execution of the transfer document. "Eligible grocery worker"
does not include a managerial, supervisory, or confidential
employee.
5)Defines "change in control" to mean any sale, assignment,
transfer, contribution, or other disposition of all or
substantially all of the assets or a controlling interest,
including by consolidation, merger, or reorganization, of the
incumbent grocery employer or any person who controls the
incumbent grocery employer or any grocery establishment under
the operation or control of either the incumbent grocery
employer or any person who controls the incumbent grocery
employer.
6)Requires an incumbent grocery employer, within 15 days after the
execution of the transfer document, to provide to the successor
grocery employer the name, address, date of hire, and employment
occupation classification of each eligible grocery worker.
7)Requires the successor grocery employer to hire from the
aforementioned preferential hiring list for a period beginning
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upon execution of the transfer document and continuing for 90
days after the grocery establishment is fully operational and
open to the public under the successor grocery employer.
8)Requires a successor grocery employer to retain each eligible
grocery worker hired from the preferential hiring list for a
period of at least 90 days after the eligible grocery worker's
employment commencement date. During this 90-day transition
employment period, eligible grocery workers shall be employed
under the terms and conditions established by the successor
grocery employer and pursuant to the terms of a relevant
collective bargaining agreement, if any.
9)Provides that if the successor grocery employer determines that
it requires fewer workers than were required by the incumbent
grocery employer, it shall retain workers by seniority within
each job classification, as specified.
10)Provides that during the 90-day transition employment period,
the successor grocery employer shall not discharge without cause
an eligible grocery worker.
11)Provides that at the end of the 90-day transition employment
period, the successor grocery employer shall make a written
performance evaluation for each eligible grocery worker. If the
worker's performance during the 90-day period is satisfactory,
the successor grocery employer shall consider offering the
worker continued employment under the terms and conditions
established by the successor grocery employer and as required by
law.
12)Requires the incumbent grocery employer to post public notice
of the change in control, as specified.
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13)Specifies that parties subject to this bill may, by collective
bargaining agreement, provide that the agreement supersedes the
requirements of this bill.
14)Provides that this bill shall not apply to grocery
establishments that will be located in geographic areas
designated by the United States Department of Agriculture as a
"food desert," as specified, provided that both of the following
apply:
a) More than six years have elapsed since the most recent
grocery establishment was located in the area designated as a
food desert.
b) The grocery establishment stocks and during normal
business hours sells fresh fruits and vegetable in amounts
and of a quality that is comparable to what the establishment
sells in its three geographically closest stores, which are
located outside of the food desert.
15)Specifies that this bill does not preempt any city, county, or
city and county ordinances that provide greater protection to
eligible grocery workers.
16)Establishes specified recordkeeping requirements for the
incumbent grocery employer and successor grocery employer to
document compliance with these requirements.
17)Makes other related changes.
18)Makes related legislative findings and declarations.
FISCAL EFFECT: None. This bill is keyed non-fiscal by the
Legislative Counsel.
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COMMENTS: This bill is sponsored by the United Food and
Commercial Workers Union Western States Council (UFCW) and would
establish a worker retention requirement for specified grocery
establishments. UFCW indicates that this measure is modeled after
a grocery worker retention ordinance enacted by the City of Los
Angeles in 2005. In 2011, the California Supreme Court held that
the Los Angeles ordinance was not preempted as intruding upon
either matters of health and safety already regulated by the state
or matters of employee organization and collective bargaining
fully occupied by federal labor law. California Grocers
Association v. City of Los Angeles, 52 Cal. 4th 177 (2011). The
court also concluded that the ordinance was fully consistent with
both state and federal equal protection clauses. Id.
In addition, UFCW contends that this approach is consistent with
other grocery worker retention ordinances adopted in the City and
County of San Francisco, the City of Santa Monica, and the City of
Gardena, as well as worker retention ordinances for other
industries adopted in the City of San Jose (airport workers), the
City of Oakland (hospitality workers), the City of Emeryville
(hotel workers), and the City of Berkeley (marina workers).
The sponsor argues that, as the largest provider of food to the
nation, California should provide workers who sell groceries good
jobs - jobs that will allow their families to purchase and enjoy
that food themselves, and allow them to work in an appropriately
staffed, healthy, and safe environment. Retailers that offer
workers such an environment are the most successful in California;
others should follow their example.
A coalition of employers, including the California Chamber of
Commerce, oppose this bill and argues that it unfairly forces
grocery employers to hire a predecessor's employees, undermines
the at-will employment presumption in California, and ensures
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continued union representation.
Primarily, they argue that this bill denies employers the basic
choice of whom to hire in their workforce. Absent unlawful
conduct by the employer such as discrimination or retaliation, the
choice of whom an employer wants to hire and retain should be left
to the employer, not the government. In addition, opponents argue
that this bill undermines the at-will presumption in order to
protect the incumbent union. Similarly, opponents argue that this
bill forces an employer to adhere to terms of a contract to which
it is not a party.
In addition, the California Grocers Association states that their
experience with similar local ordinances has shown that similar
worker retention mandates have a chilling effect on commerce and
hamper efforts to transition current grocery businesses to new
ownership rather than close locations outright.
Analysis Prepared by:
Ben Ebbink / L. & E. / (916) 319-2091 FN: 0000447