BILL ANALYSIS Ó SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Jerry Hill, Chair 2015 - 2016 Regular Bill No: AB 1042 Hearing Date: June 22, 2015 ----------------------------------------------------------------- |Author: |Cooper | |----------+------------------------------------------------------| |Version: |May 18, 2015 | ----------------------------------------------------------------- ---------------------------------------------------------------- |Urgency: |No |Fiscal: |No | ---------------------------------------------------------------- ----------------------------------------------------------------- |Consultant|Janelle Miyashiro | |: | | ----------------------------------------------------------------- Subject: Proprietary security services. SUMMARY: Expands the definition of a proprietary private security officer (PSO) by requiring only one of the two specified criteria to be met and includes examples of a PSO's duties that are likely to involve interacting with the public. Existing law: 1) Provides for the licensure and regulation of proprietary private security officers (PSOs) and proprietary private security employers (PPSEs) by the Bureau of Security and Investigative Services (Bureau) in the Department of Consumer Affairs (DCA) under the Proprietary Security Services Act (Act). (Business and Professions Code (BPC) § 7574 et. seq.) 2) Defines a PSO as an unarmed individual who is employed exclusively by any one employer whose; primary duty is to provide security services for his or her employer, services are not contracted to any other entity or person, and meets both of the following criteria: a) Is required to wear a distinctive uniform clearly identifying the individual as a security officer. b) Is likely to interact with the public while performing his or her duties. (BPC § 7574.01) AB 1042 (Cooper) Page 2 of ? 3) Prohibits any who is not registered with the Bureau from engaging in the business of a PSO. (BPC § 7574.10) 4) Requires a person registered and hired as a PSO to complete training in security officer skills within six months of his or her employment with a PPSE. (BPC § 7574.18) 5) Defines a PPSE as a person who has one or more employees who provide security services for the employer and only for the employer. A person who employs PSOs pursuant to this chapter at more than one location shall be considered a single employer. (BPC § 7574.01(e)) This bill: 1) Changes the definition of a PSO to require only one of the two specified criteria. 2) Gives examples of a PSO's duties when interacting with the public which include, but are not limited to, acting to prevent unapproved or unlawful entry, directing persons causing a disturbance to leave a facility, ensuring that persons removing property from a facility are acting within appropriate policy requirements, observing and reporting incidents or suspicious activity to management and other public safety authorities as appropriate, and responding to or reporting incidents of fire, medical emergency, hazardous materials, and other incidents or conditions following procedures established by the PSO's employer. FISCAL EFFECT: None. This bill is keyed "nonfiscal" by Legislative Counsel. However, the Senate Appropriations Committee has specifically requested to hear this measure. COMMENTS: 1. Purpose. This bill is sponsored by the California Association of Licensed Security Agencies, Guards and AB 1042 (Cooper) Page 3 of ? Associates (CALSAGA) . According to the Author, "AB 1042 updates the definition of Proprietary Private Security Officer (PSO) to further professionalize the industry and protect the general public. The bill expands the definition of PSO to include either a person who wears a distinctive security uniform or primarily provides a security function, so that those who meet the definition will be required to obtain a background check and receive some basic level of training." 2. Background. Private security is a growing industry. According to a report prepared for the U.S. Department of Justice (DOJ) by the National Criminal Justice Reference Service (NCJRS), the private security industry plays an important role in the nation's security and safety. The report highlights the major responsibilities of private security today, including the protection of our nation's institutions and critical infrastructure systems, such as industry and manufacturing, utilities, transportation, and health and educational facilities. According to a 2006 report by the U.S. Government Accountability Office, private industry controls more than 85% of the nation's critical infrastructure. That number is thought to have substantially risen today. However, private security services are not only employed to protect vital infrastructure, but also in a wide range of commercial and residential markets. The NCJRS report asserts that both contract and proprietary security guards will continue to be necessary to protect both people and property in light of growing concerns about crime, vandalism, and domestic terrorism, especially in light of reduced local government law enforcement budgets. 3. PSO Distinction. There are two specific categories of licensed security guards regulated by the Bureau; those who work in-house for a specific employer (PSOs), and those who are employed by a contract security firm to provide security services for a third party (security guards). Both PSOs and security guards play a role in three broad types of security: physical, information, and employment-related. Physical security involves physical measures designed to safeguard people and to prevent AB 1042 (Cooper) Page 4 of ? unauthorized access to equipment, facilities, material, and documents, as well as to safeguard these materials against a security incident. Physical security may include perimeter and interior space protection through the use of barriers, locks, lights, sensors, and guards. Information security is the protection of confidential information such as mailing lists, research and development documentation, and financial information that can be maintained in hard copy or electronic format. Employment-related security services involve record keeping and understanding essential information about employees (both permanent and temporary) that might impact an employee's job performance, possible breaches of security, or subject the organization or company to liability. These employment-related security services are utilized through job applicant screening or protecting executives or other individuals through bodyguard services. Although there may be some overlap in the responsibilities of PSOs and security guards in these three broad types of security services, there is a distinctive difference in licensure and training requirements as well as the scope of duties for each guard category. Security guards are employed through private patrol operators (PPOs), who must also be registered and licensed with the Bureau. Security guards protect persons and/or property and prevent theft on premises owned or controlled by those companies contracting with a PPO, the contract security firm, or by the guard's employer. Security guards must be at least 18 years of age, undergo a criminal history background check through the DOJ and the Federal Bureau of Investigation (FBI), and complete a 40-hour course of required training. The training and exam may be administered by any PPO or by a certified training facility. Security guards may also apply for and obtain a Bureau issued Firearms Permit after fulfilling other specified requirements. A PSO is defined as a generally unarmed individual who is employed by a single employer not contracted to any other entity or person and whose primary duty is to provide security services for that employer. PSOs must be at least 18 years of age and undergo a criminal history background check through the DOJ and the FBI before registering with the Bureau. A PSO must possess a valid PSO registration document, which can include a screen-print from the Bureau's AB 1042 (Cooper) Page 5 of ? website, and a valid photo identification while placed on assignment. While PSO registration candidates do not need to provide proof of training to the Bureau, their employers must have proof of the PSOs completion of 16 hour of training within the first six months of receiving the PSO registration or six months from date of hire by the PSO employer in the employee's file. PPSEs are prohibited from subletting PSOs to another person, business, or entity. PSOs are prohibited from carrying firearms or batons while on duty. California peace officers, retired peace officers, and patrol special police officers are exempt from PSO and PPSE registration requirements. According to the Bureau's 2014 Sunset Review Report, there were approximately 594 PPSEs, 6,201 PSOs, and 2,765 PPOs (for the fiscal year 2013/2014). 4. Unlicensed Activity. In the past, PSOs in California received little state oversight, instead relying on standards of conduct and duties set by their employers. California companies that hired unlicensed PSOs incurred no penalty. To address this issue, SB 741 (Maldonado, Chapter 361, Statutes of 2009) was passed in order to regulate these PSOs and those employing these security services. This new oversight authority went into effect January 1, 2011. These regulations included PSO and PPSE registration with the DCA and a new required training within 6 months of registration. Licensees could incur penalties between $250 and $1,000 for noncompliance. Although this somewhat recent new oversight authority by the Bureau has greatly helped to professionalize the proprietary security industry, there are still concerns that the current definition of a PSO is too narrow. The Author asserts that the definition of a PSO should include persons not wearing a distinctive uniform, but does primarily act in a security capacity. This new definition would bring bouncers and other plain-clothes individuals employed for security purposes under the umbrella of a PSO and would require their licensure and registration with the Bureau. This issue was raised in response to a violent incident involving an Oceanside club bouncer and a patron in December of 2014. Following the Oceanside club incident, a news report by NBC AB 1042 (Cooper) Page 6 of ? was release in February 2015, claiming that there was an "underground industry" of unlicensed, untrained security guards and bouncers in San Diego County, and that many of the security officers were not licensed properly. According to a DCA spokesman quoted in the story, "?for proprietary security guards, the ones that work for restaurants and bars and those sorts of things, unlicensed activity can be a vexing problem because not every bar that springs up is aware of the licensing requirement?It's not so much underground as they are unaware." The DCA spokesman also noted another issue relating to these unlicensed security personnel, which is that the security officer only needs to be licensed if the employee is wearing clothing that identified him or her as security; if the person is not wearing a uniform, but performing the same duties, no license is required. As a result, those individuals would not be required to register with the Bureau, have a background check, or meet any other training requirements for a PSO. This bill seeks to close this loophole and change the definition of a PSO to require only one of the two specified criteria. This bill also gives specific examples of some of the duties a PSO would have when interacting with the public to ensure that those operating as a PSO are properly licensed and regulated by the Bureau. The Author argues that these changes will ensure greater public and consumer protection by assisting the Bureau to curb unlicensed activity. 5. Related Legislation This Year. SB 468 (Hill, 2015) would extend the operation of the Bureau of Security and Investigative Services and the Alarm Company Act, Locksmith Act, Private Investigator Act, Private Security Services Act, Proprietary Security Services Act, and Collateral Recovery Act until January 1, 2020; subject the Bureau to review by the appropriate committees of the Legislature; and make various changes to provisions in the aforementioned Acts to improve the oversight, enforcement and regulation by the Bureau of licensees under each Act. ( Status : This bill is in the Assembly Business & Professions Committee.) 6. Prior Related Legislation. SB 741 (Maldonado, Chapter 361, Statutes of 2009) revised and re-casted the existing AB 1042 (Cooper) Page 7 of ? regulation of proprietary private security officers to require both proprietary private security officers and proprietary private security employers, as defined, to register with the Bureau of Security and Investigative Services, and establishes training and enforcement provisions. SB 666 (Maldonado, Chapter 721, Statutes of 2007) required PSOs to complete security officer skills training as they begin employment and to undergo an annual review of this training. SB 666 also required the Bureau to establish a training curriculum by regulation, with the assistance of an advisory committee. SB 194 (Maldonado, Chapter 655, Statutes of 2005) enacted the Act and required a PSO as defined, to meet specified requirements and register with the DCA. 7. Arguments in Support. Writing in support of the bill, the California Association of Licensed Security Agencies, Guards and Associates (CALSAGA) states, "this bill would expand the definition of a proprietary private security officer by instead requiring only one of the two specified criteria to be met. This change in definition would insure that certain individuals that are hired to interact with the public while performing his or her duties are properly trained and certified to perform those duties?AB 1042 would provide greater consumer protection by ensuring that certain duties, which at times may involve dangerous situations, are carried out by licensed and certified professionals." 8. Proposed Author Amendments. The Author indicates that in order to address an existing problem surrounding the pay schedule for employees of private security companies, he will be amending the bill to redefine the work week specific to security guards in the Labor Code (LC). Recently, a court case in Santa Clara County determined that private security companies are "temporary services employers". Temporary services employers are defined in the LC as employing units that contract with clients to supply workers to perform services for those clients. Temporary services employers negotiate with clients where and when services will be provided, type of work, working conditions, AB 1042 (Cooper) Page 8 of ? assignments or reassignments of workers. These temporary services employers also set the rate of pay for their workers and pay these workers from their own accounts. Section 201.3 of the LC requires temporary services employers to pay their employees weekly, according to the calendar week schedule, which is defined by the Division of Labor Standards Enforcement (DLSE) as a week extended from Sunday to Saturday. Section 500 of the LC defines "workweek" and "week" as any seven consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven consecutive 24-hour periods. According to the Author, most security services firms define the workweek as Friday to Thursday. The Author states that many companies choose to define their workweek in this fashion due to the business needs of the company, and adds that this is the most efficient way to process payroll from operational, financial and information technology perspectives. Most companies operate on a Monday to Friday business/administrative schedule, as that enables employees to work Monday to Friday and take weekends off. The Author states that there are many reasons for this, including family and religious observances. However, use of a calendar week schedule would require administrative employees to work on weekends in order to process payroll for a Saturday pay-day. The Author seeks to amend the LC to redefine the work week specific to security guards. The Author states that this effort is not an attempt to change the weekly payroll rule but that this new change will allow these temporary services employers to pay their employees on a weekly, Friday to Thursday schedule, ensuring that payment of wages to employees follows the same timeline as the current Sunday to Saturday schedule. The Author asserts that the Sunday to Saturday pay schedule does not have an inherent value or benefit to employees, as there is no legislative history as to why the weekly pay requirement was defined in this manner originally. The Author argues that likewise, a Friday to Thursday pay schedule does not negatively impact employees. In both schedules employees must wait the same period of time in order to be paid. AB 1042 (Cooper) Page 9 of ? The proposed Author's amendments will redefine the work week for security guard companies, which fall under the temporary services employers category, to allow these companies to pay their employees on a Friday to Thursday pay schedule. On page 3, in line 6, add SECTION 2. Section 201.3 of the Labor Code is amended to read: 201.3 (b) (1) (A) Except as provided in paragraphs (2) to (5), inclusive, if an employee of a temporary services employer is assigned to work for a client, that employee's wages are due and payable no less frequently than weekly, regardless of when the assignment ends, and wages for work performed during any calendar week shall be due and payable not later than the regular payday of the following calendar week. A temporary services employer shall be deemed to have timely paid wages upon completion of an assignment if wages are paid in compliance with this subdivision. (B) Except as provided in paragraphs (2) to (5), inclusive, if an employee of a temporary services employer is employed in the security services industry as a security officer who is registered pursuant to Chapter 11.5 (commencing with Section 7580) of Division 3 of the Business and Professions Code, is employed by a private patrol operator registered pursuant to that chapter, and is assigned to work for a client, that employee's wages are due and payable no less frequently than weekly, regardless of when the assignment ends, and wages for work performed during any workweek, as defined under Section 500, shall be due and payable not later than the regular payday of the following workweek. SUPPORT AND OPPOSITION: Support: California Association of Licensed Security Agencies, Guards and Associates (Sponsor) Opposition: None on file as of June 16, 2015. AB 1042 (Cooper) Page 10 of ? -- END --