Amended in Assembly April 13, 2016

Amended in Assembly March 15, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 1978

Introduced by Assembly Member Gonzalez

February 16, 2016

An act to begin delete amend Section 90.5 of end delete begin insert add Part 4.2 (commencing with Section 1420) to Division 2 of end insert the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1978, as amended, Gonzalez. Employment: begin delete Department of Industrial Relations: wage claims and retaliation complaints. end delete begin insert property service workers. end insert

Existing law establishes begin delete within end delete the Department of Industrial Relations begin insert in the Labor and Workforce Development Agency to foster, promote, and develop the welfare of the wage earners of California, to improve their working conditions, and to advance their opportunities for profitable employment. Existing law establishes within the department end insert the Division of Labor Standards Enforcement, which is vested with the general duty of enforcing labor laws, including those relating to wage claims and employer retaliation. Existing law requires the Labor Commissioner, defined as the Chief of the Division of Labor Standards Enforcement, to establish and maintain a field enforcement unit in order to ensure that minimum labor standards are met. begin delete Existing law requires the commissioner to report annually to the Legislature, not later than March 1, concerning the effectiveness of the field enforcement unit, as specified. end delete

begin insert

The California Occupational Safety and Health Act of 1973 establishes certain safety and other responsibilities of employers and employees, including a requirement that every employer establish, implement, and maintain an effective injury prevention program. The act requires the program to be written, except as specified, and to include certain elements.

end insert

This bill would begin delete require the Labor Commissioner to include in the commissioner’s report to the Legislature, as described above, specified information on the status of wage claims and retaliation complaints, including the average amount of time it takes for a wage claim to receive a preliminary hearing and the current backlog of claims and complaints. end delete begin insert establish specific standards and protections for property service workers, to be known as the Property Service Workers Protection Act, and define terms for its purposes. end insert

begin insert

The bill would require the department, no later than July 1, 2017, to develop worker and supervisor materials for a prescribed 4-hour training regarding sexual harassment, sexual violence, and human trafficking and to make those materials available to employers, covered workers, and the public through, among other means, posting on its Internet Web site. The bill would require the department by that date to establish requirements for employers who provide janitorial services to require that covered workers and supervisors, at least annually, receive prescribed in-person training on sexual harassment and sexual assault. The bill would require the department to establish standards and requirements for trainers and recordkeeping relating to training. The bill would require the department by that date to establish a toll-free hotline for reporting of complaints and incidents of workplace sexual harassment, sexual violence, and human trafficking and require workplace notice to employees of existing rights in this area.

end insert begin insert

The bill would require the Occupational Safety and Health Standards Board, by July 1, 2017, to adopt standards developed by the Division of Occupational Safety and Health that require an employer to adopt a workplace sexual violence and sexual harassment prevention plan as a part of its injury and illness prevention plan, to protect covered workers from sexual violence and harassment.

end insert begin insert

The bill would require the registration of employers conducting janitorial business, as prescribed, and establish specific authority for the Director of Industrial Relations to enforce and implement that requirement. The bill would set application and renewal fees. The bill would prohibit an employer, on or after January 1, 2018, from conducting any janitorial business without a valid registration. The bill would require an employer to include specific information in the registration application, subscribed and sworn to under penalty of perjury, thereby imposing a state-mandated local program by expanding the scope of the crime of perjury. The bill would prohibit the granting of registration under specific circumstances, authorize the director to revoke, suspend, or place a registration on probation, as prescribed, and would void a registration in certain circumstances. The bill would require the director, on and after February 1, 2018, to maintain on the department’s Internet Web site a regularly updated, searchable database of registered employers, and, on and after July 1, 2018, a searchable database regarding the compliance and enforcement activities of the department.

end insert begin insert

The bill would establish various compliance and enforcement provisions, including a requirement that the director establish a Property Services Compliance Unit to enforce the act. The bill would establish civil fines and provide for labor compliance agreements, stop order authority, audits, and investigations. The bill would impose a state-mandated local program by making it a crime to conduct any janitorial business without a valid registration, or to fail to observe a stop order. The bill would establish specific protections against discrimination and retaliation for engaging in conduct delineated in the bill, including civil and criminal penalties and a right to take civil action.

end insert begin insert

The bill would require the deposit of registration fees and specific civil fines in the State Janitorial Contractor Registration Fund, which the bill would create, and make the moneys in the fund available, upon appropriation, for the reasonable costs of administering the registration of janitorial contractors and the costs and obligations associated with the administration and enforcement of the bill by the department. The bill, to provide adequate cash flow for those purposes, would authorize the Director of Finance, with the concurrence of the Secretary of the Labor and Workforce Development Agency, to approve a short-term loan each fiscal year from the Labor and Workforce Development Fund to the State Janitorial Contractor Registration Fund.

end insert begin insert

The bill would require the department, before July 1, 2017, to develop certain standards and procedures regarding violations of the bill.

end insert begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete no end delete begin insert yes end insert .

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Part 4.2 (commencing with Section 1420) is added
to Division 2 of the end insert begin insert Labor Code end insert begin insert , to read: end insert

begin insert

 

PART  begin insert 4.2. end insert   Property Service Workers Protection
Act

 

Chapter   begin insert 1. end insert General

 

begin insert 1420. end insert   

(a) The Legislature finds and declares that in the
janitorial industry in this state:

(1) Workers are widely victimized by wage theft, sexual
harassment and assault, failure to provide workers’ compensation
insurance, and other “low-road” practices perpetrated by
unscrupulous employers that fail to comply with existing labor
standards laws.

(2) Contractors are often undercapitalized, change names, and
abuse their corporate identity; making it difficult for victimized
workers to secure meaningful legal relief.

(3) While some “high-road” employers comply with labor
standards laws and invest in training and retaining a more skilled
workforce, these employers are undercut by low-road competitors
in a continual race to the bottom.

(4) It is in the public interest that employers compete primarily
on the basis of quality, efficiency, and innovation, and not through
a race to the bottom that perpetuates substandard working
conditions and lack of compliance with labor standards laws.

(5) Despite the state’s efforts over the years to bring
underground economy practices in the janitorial industry under
control, these practices persist.

(6) Absent additional regulation of labor standards by the state
to prevent the undercutting of high-road employers, the current
situation is unlikely to change.

(7) Workers in janitorial occupations often work alone at night,
making them vulnerable to sexual violence and harassment while
on the job, a condition that is exacerbated by low pay, low job
mobility, and poor training. Adopting standards to protect workers
from sexual violence and sexual harassment should be an
obligation of all janitorial industry employers.

(b) It is the intent of the Legislature in enacting this part to:

(1) Direct the department to develop worker and supervisor
education materials regarding sexual harassment and sexual
violence that are tailored to the janitorial industry in the languages
and literacy levels appropriate to the janitorial workforce, and to
establish requirements for the frequency of that training for
supervisors and workers, and standards for trainers who are to
deliver training.

(2) Direct the Occupational Safety and Health Standards Board
to require janitorial industry employers to include the training as
part of their injury and illness prevention plans.

(3) Establish a system of janitorial contractor registration to
encourage labor standards compliance and to establish prompt
and effective sanctions for violating this part.

begin insert 1421. end insert   

This part shall be known, and may be cited, as the
Property Service Workers Protection Act.

begin insert 1422. end insert   

For purposes of this part:

(a) “Covered laws” means Chapter 10 (commencing with
Section 690.020) of Division 1 of Title 9 of Part 2 of the Code of
Civil Procedure, Article 1 (commencing with Section 12940) of
Chapter 6 of Part 2.8 of Division 3 of Title 2 of the Government
Code, and the Labor Code, including, but not limited to, Sections
96.8, 98, 238 to 238.5, inclusive, 558.1, and 2810, and Chapter
4.5 (commencing with Section 1060) of Part 3.

(b) “Covered worker” means a janitor, including any individual
working, whether as an employee, independent contractor, or a
franchisee, as a janitor, as that term is defined in the federal
Service Contract Act Directory of Occupations. If an individual’s
work duties are predominantly those of a janitor as defined therein,
that person shall be deemed a janitor for purposes of this part.

(c) (1) “Employer” means any person or entity that employs
at least one employee and one or more covered workers and that
enters into contracts, subcontracts, or franchise arrangements to
provide janitorial services. The term “employer” includes the term
“covered successor employer.”

(2) “Covered successor employer” means an employer who
meets one or more of the following criteria:

(A) Uses substantially the same facilities, equipment,
supervisors, and workforce to offer substantially the same services
to substantially the same clients as a predecessor employer. An
employer that has operated with a valid registration for at least
the preceding three years shall not be considered a covered
successor employer for using substantially the same facilities,
equipment, supervisors, and workforce to substantially the same
clients, if all of the following apply:

(i) The individuals in the workforce were not referred or
supplied for employment by the predecessor employer to the
successor employer.

(ii) The successor employer has not had any interest in, or
connection with, the operation, ownership, management, or control
of the business of the predecessor employer within the preceding
three years.

(iii) The successor employer has not been determined to have
violated any of the covered laws.

(B) Shares in the ownership, management, control of the
workforce, or interrelations of business operations with the
predecessor employer.

(C) Is an immediate family member of any owner, partner,
officer, licensee, or director of the predecessor employer or of any
person who had a financial interest in the predecessor employer.
“Immediate family member” means a spouse, parent, sibling, son,
daughter, uncle, aunt, niece, nephew, grandparent, mother-in-law,
father-in-law, brother-in-law, sister-in-law, or cousin.

(d) “State Janitorial Contractor Registration Fund” or “fund”
means the State Janitorial Contractor Registration Fund
established in Chapter 5 (commencing with Section 1445).

(e) “Standards board” means the Occupational Safety and
Health Standards Board.

(f) “Supervisor” means any individual having the authority, in
the interest of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline workers,
or the responsibility to direct them, or to adjust their grievances,
or effectively to recommend that action, if, in connection with the
foregoing, the exercise of that authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.

 

Chapter   begin insert 2. end insert Protections Against Workplace Sexual
Violence and Harassment

 

begin insert 1425. end insert   

(a) The department, no later than July 1, 2017, shall do
all of the following:

(1) Develop worker and supervisor agendas, handouts,
facilitation guides, and other materials for a four-hour training
regarding sexual harassment, sexual violence, and human
trafficking that are appropriate for the janitorial industry and the
languages and literacy levels of covered workers.

(A) Training materials shall include information related to:
definitions of workplace sexual harassment, sexual assault, and
human trafficking; employers’ legal obligations to prevent sexual
harassment and assault; potential legal and disciplinary
consequences for employers and perpetrators of workplace sexual
harassment and assault; community, mental health, and legal
resources locally available for survivors of workplace sexual
harassment or assault; legal protections available to immigrant
workers subjected to workplace sexual harassment or sexual
assault, including, but not limited to, the federal U nonimmigrant
status known as U visa, and protections for victims of human
trafficking; prevention, protection, and reporting strategies for
workplace sexual harassment, sexual assault, or human trafficking;
information on filing administrative complaints with the
appropriate state and federal agencies; antiretaliation and other
legal protections for those who have experienced sexual
harassment and sexual assault; information regarding the Injury
and Illness Protection Program of the Division of Occupational
Safety and Health, and other topics as the director deems necessary
for janitorial workers and supervisors.

(B) The department shall provide these materials in all
languages that are the language spoken at home of at least 500
janitors (ACS Occupation Code 4220) who reside in this state, as
determined by the most recent American Community Survey of the
United States Census Bureau.

(C) The department shall update these materials on or before
July 1 of each year and make them available to employers, covered
workers, and the public through, among other means, posting on
its Internet Web site.

(2) Establish requirements that employers shall require all
covered workers and supervisors to, at least annually, receive
comprehensive, accurate and appropriate in-person training
lasting at least four hours regarding sexual harassment and sexual
assault that provides an opportunity for interactive questions and
answers. These mandatory trainings shall use the worker and
supervisor training materials in paragraph (1) of subdivision (a)
and shall be delivered in the primary language spoken by at least
25 percent of the employer’s covered workers. Employers shall
provide these in-person trainings at no cost to all covered workers
and to all supervisors of covered workers on at least an annual
basis and within 30 days of hire. Employers shall pay employees
and supervisors at their regular rate of pay for participating in
these trainings or, if required by law, at their overtime rate of pay.

(3) Establish minimum qualification standards for trainers who
may deliver training, including but not limited to, a minimum of
five years of experience conducting adult education with the
demographics of the janitorial workforce. The collective bargaining
agent that represents the employer’s covered workers or the
designee of the collective bargaining agent may deliver trainings.

(4) Establish requirements for employers to maintain accurate
records documenting the delivery of training by qualified trainers
which includes: sign-in sheets with the participants’ and qualified
trainer’s signatures; a listing of the names, addresses, and
telephone numbers of the participants and of the qualified trainers;
and a copy of the materials provided and used in the training.

(5) Establish a toll-free hotline for the reporting of complaints
and incidents of workplace sexual harassment, sexual assault, and
human trafficking to the Division of Occupational Safety and
Health, the Department of Fair Employment and Housing, and to
the National Human Trafficking Resource Center. The hotline
shall provide service in all the languages that meet the
requirements of subparagraph (B) of paragraph (1).

(6) Require employers to post and display prominently a notice,
of a size, form, and content as the director prescribes, in a
conspicuous place where it may be read by covered workers during
work hours, and in all places where notices to covered workers
are posted both physically and electronically. The notice shall
inform covered workers of their rights under the sexual harassment
and human trafficking laws, contain examples of illegal employer
conduct, provide the hotline number in paragraph (5) and provide
the contact information for local resources to assist those who
have experienced sexual harassment and human trafficking. Where
a significant portion of the employer’s workforce of covered
workers is not proficient in English, the employer shall provide
the notice in the language the covered workers speak. The
department shall develop an approved notice in all languages that
meet the requirements of subparagraph (B) of paragraph (1) and
make that notice available on its Internet Web site.

(7) Appoint an advisory group of stakeholders to assist the
department in carrying out its responsibilities under this
subdivision. The advisory group shall include representatives from
a nonprofit organization that advocates for standards to protect
workers in the janitorial industry from workplace sexual
harassment and assault and from a labor organization that
represents covered workers.

(8) Adopt regulations as the department determines to be
necessary to carry out this subdivision.

(b) The standards board, by no later than July 1, 2017, shall
adopt standards developed by the Division of Occupational Safety
and Health that require an employer to adopt a workplace sexual
violence and sexual harassment prevention plan, as a part of its
injury and illness prevention plan, to protect covered workers from
sexual violence and harassment.

(c) The standards adopted pursuant to subdivision (b) shall
include all of the following:

(1) A requirement that the workplace sexual violence and sexual
harassment prevention plan shall be in written form for all
employers.

(2) A requirement that the workplace sexual violence and sexual
harassment prevention plan include specific means for janitors
who work during the nighttime or early morning hours to work in
pairs, or to have an equivalent form of protection.

(3) A requirement that the workplace sexual violence and sexual
harassment prevention plan include specific protections for janitors
against violence and sexual harassment from clients, coworkers,
and outsiders.

(4) A requirement that all workplace sexual violence and sexual
harassment prevention plans be developed in conjunction with
covered workers, including their recognized collective bargaining
agents, if any.

(5) A requirement that all workplace sexual violence and sexual
harassment prevention plans include the training of all covered
workers and supervisors of covered workers consistent with
subdivision (a).

(6) A requirement that employers maintain records of complaints
and incidents of workplace sexual violence and sexual harassment,
including the date, number of employees involved, nature of the
claim or incident, worksite location, investigation steps and results
of the employer’s investigation.

(7) A requirement that employers screen supervisors for
convictions of any of the acts listed in subdivision (c) of Section
290 of the Penal Code, for being listed on the registered sex
offender database under the Sex Offender Registration Act
(Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1
of the Penal Code), and for any civil judgments for having
committed sexual harassment.

(8) A requirement for the reporting of complaints and incidents
of workplace sexual violence and sexual harassment to appropriate
agencies including, but not limited to, the Department of Fair
Employment and Housing, the Division of Occupational Safety
and Health, and the National Human Trafficking Resource Center.

(d) This section does not limit the authority of the standards
board to adopt standards to protect employees from workplace
violence or harassment. Nothing in this section shall be interpreted
to preclude the standards board from adopting standards that
require other employers to adopt plans to protect employees from
workplace violence or harassment. Nothing in this section shall
be interpreted to preclude the standards board from adopting
standards that require an employer subject to this section, or any
other employer, to adopt a workplace violence or harassment
prevention plan that includes elements or requirements additional
to, or broader in scope than, those described in this section.

 

Chapter   begin insert 3. end insert Registration of Janitorial Contractors

 

begin insert 1430. end insert   

(a) The director shall have broad authority to enforce
and implement this part. This authority includes, but is not limited
to:

(1) Maintaining the janitorial contractor registry, list, and
Internet Web site.

(2) Negotiating, monitoring and enforcing labor compliance
agreements.

(3) Conducting random and nonrandom audits or investigations
of complaints, or both audits and investigations.

(4) Issuing, renewing, denying renewal of, suspending, revoking,
or placing on probation an employer’s registration.

(5) Issuing civil fines and stop orders.

(6) Other powers as determined by the director that are
necessary to interpret, implement, and enforce this chapter.

(b) The director may establish through the adoption of
regulations any procedures it determines to be necessary to carry
out this part.

begin insert 1431. end insert   

(a) On and after January 1, 2018, no employer may
conduct any janitorial business without a valid registration under
this section, and all employees shall be registered with the
department pursuant to this section.

(b) To qualify for a certificate of registration or for a certificate
of registration renewal under this section, an employer shall, in
a manner prescribed by the director, do all of the following:

(1) Beginning July 1, 2017, register with the department and
pay an initial nonrefundable application fee of one thousand
dollars ($1,000) and an annual renewal fee of one thousand dollars
($1,000) on or before July 1 of each year thereafter. The director
may adjust the initial registration and renewal fees no more than
annually to support the costs specified in Section 1445.

(2) Execute a written application, subscribed and sworn to by
the employer under penalty of perjury under the laws of this state
that contains all of the following:

(A) The name of the employer and, if applicable, its fictitious
business name.

(B) The form of the employer and, if a corporation, all of the
following:

(i) The date of incorporation.

(ii) 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
California Secretary of State.

(E) The federal employer identification number (FEIN) and the
state employer identification number (SEIN) of the employer.

(F) The employer’s business address, telephone number, fax
number, and email address.

(G) The name and title of the manager, officer, or shareholder
who will serve as the qualifying individual to meet the examination
requirements in paragraph (4).

(H) The names, residential addresses, business addresses,
telephone numbers, email addresses and Social Security numbers,
federal employer identification number (FEIN) or the state
employer identification number (SEIN) of the following persons:

(i) All corporate officers, if the employer is a corporation.

(ii) All persons exercising management responsibility in the
employer’s office, regardless of the form of the business entity.

(iii) The franchisor, if the employer is a franchise.

(iv) All shareholders holding at least 10 percent of the
outstanding voting shares of the employer, if the employer has
shareholders, and the actual percent owned by each of those
shareholders.

(v) All persons who have a financial interest of 10 percent or
more in the employer’s business, regardless of the form of business
entity, and the actual percentage owned by each of those persons.

(I) The total number of covered workers who are employees of
the employer.

(J) The total number of covered workers who are independent
contractors of the employer.

(K) The employer’s total annual payroll-related expenses over
the last 12 months.

(L) Whether the employer uses a professional employer
organization or leasing employer.

(M) Whether the employer has instituted an alternative work
week pursuant to Section 511.

(N) Name, address and telephone number of any recognized
collective bargaining agent representing the covered workers.

(O) Whether the application is for a new or renewal registration
and, if the application is for a renewal, the prior registration
number.

(P) Whether the employer is also a covered successor employer,
and if so, the information in subparagraphs (A) to (C), inclusive,
(E), and (F) for the predecessor employer.

(Q) Certification that the information submitted to the director
under this subparagraph and paragraph (3) is complete.

(R) A written pledge under penalty of perjury under the laws of
this state that the employer shall:

(i) Comply with all applicable federal, state, and local laws and
regulations during the upcoming year, including, but not limited
to, laws regarding health and safety, labor and employment, wage
and hour, and licensing laws that affect workers.

(ii) Timely notify the director as required by paragraphs (1)
and (2) of subdivision (c).

(S) Such other information as the director requires for the
administration and enforcement of this chapter.

(3) Provide evidence, disclosures under penalty of perjury under
the laws of this state, or releases as are necessary to establish all
of the following:

(A) Workers’ compensation coverage that complies with
Division 4 (commencing with Section 3200) and includes sufficient
coverage for any covered worker. Coverage may be evidenced by
a current and valid certificate of workers’ compensation insurance
or certification of self-insurance required under Section 7125 of
the Business and Professions Code.

(B) The employer does not have any delinquent liability to a
worker or the state for any assessment of back wages or related
damages, interest, fines, or penalties pursuant to any final
judgment, order, or determination by a court or any federal, state,
or local administrative agency, including a confirmed arbitration
award. However, for purposes of this subparagraph, the employer
shall not be disqualified for any judgment, order, or determination
that is under appeal, provided that the employer has secured the
payment of any amount eventually found due through a bond or
other appropriate means.

(C) Any administrative merits determinations, arbitral awards
or decisions, civil judgments, or criminal judgments rendered
against the employer within the preceding three-year period for
violating covered laws. A covered successor employer shall provide
this information both for itself and for its predecessor employer.
At minimum, the employer shall provide:

(i) The law violated.

(ii) The case number, inspection number, charge number, docket
number, or other unique identification number.

(iii) The date rendered.

(iv) The name of the court, arbitrator, agency, board, or
commission rendering the determination or decision.

(v) A copy of the administrative merits determination, arbitral
award or decision, or civil or criminal judgment document.

(D) A sexual violence and sexual harassment prevention plan
that meets the requirements of subdivision (b) of Section 1425.

(E) Within the last 12 months, the employer has screened all
supervisors for convictions of any of the acts listed in subdivision
(c) of Section 29 of the Penal Code, for being listed on the
registered sex offender database under the Sex Offender
Registration Act (Chapter 5.5 (commencing with Section 290) of
Title 9 of Part 1 of the Penal Code), and for any civil judgments
for having committed sexual harassment.

(F) Other information as the director requires for the
administration and enforcement of this chapter.

(4) Designate a qualifying individual as described in
subparagraph (G) of paragraph (2), to take a written examination
that demonstrates an essential degree of knowledge of the current
state laws and regulations that apply to employers as the director
deems necessary for the safety and protection of employers,
covered workers, and the public, including the identification and
prevention of sexual harassment in the workplace. To successfully
complete the examination, the qualifying individual shall correctly
answer at least 85 percent of the questions. The examination may
only be taken a maximum of three times per calendar year. The
examination shall include a demonstration of the current laws and
regulations regarding wages, hours, and working conditions,
workplace discrimination and sexual harassment, collective
bargaining, workers’ compensation, health and safety, the
Displaced Janitor Opportunity Act (Chapter 4.5 (commencing
with Section 1060) of Part 3), Section 2810, and penalties and
enforcement of those laws.

(c) After an employer is registered or has renewed its
registration, the employer shall:

(1) Notify the director within 30 calendar days of all
administrative merits determinations, arbitral awards or decisions,
and civil or criminal judgments rendered against the employer for
violating any covered laws.

(2) Provide the director within 30 calendar days updated
responses to the written registration or renewal application if any
change occurs that would change any response contained within
the completed written application.

begin insert 1432. end insert   

The employer shall:

(a) After July 1, 2017, maintain records of the sign-in sheets
and materials consistent with paragraph (4) of subdivision (a) of
Section 1425. These records shall be available for inspection by
the department and shall be maintained in a manner that meets
the requirements issued by the department under subdivision (a)
of Section 1425.

(b) Post and display prominently in a conspicuous place where
it may be read by covered workers during work hours, and in all
places where notices to covered workers are posted both physically
and electronically:

(1) By July 1, 2017, the notice in paragraph (6) of subdivision
(a) of Section 1425.

(2) By January 1, 2018, a copy of the employer’s current
certificate of registration.

begin insert 1433. end insert   

(a) The director shall not grant registration or renewal
of registration:

(1) To any employer who has a record of serious, repeated,
willful, or pervasive violations of covered laws, including any
covered successor employer who either alone or in combination
with its predecessor employer has such a record, unless the
employer has remediated the violation by entering into and
fulfilling the terms of a labor compliance agreement as described
in Section 1436.

(2) To any employer who has failed to provide the director
evidence of workers’ compensation coverage that meets the
requirements of subparagraph (A) of paragraph (3) of subdivision
(b) of Section 1431 or who lacks that coverage.

(3) To any employer who has failed to provide the director
evidence that it does not have any delinquent liability to a worker
or to the state as described in subparagraph (B) of paragraph (3)
of subdivision (b) of Section 1431, or who has such liability.

(4) To any employer who has failed to provide the director
evidence of a sexual violence and sexual harassment prevention
plan that meets the requirements of subdivision (b) of Section 1425,
or who lacks such a plan.

(5) To any employer whose qualifying individual has not
achieved a passing score on the written examination in paragraph
(4) of subdivision (b) of Section 1431.

(6) To any employer who has not submitted the complete fees,
application, information, and evidence as required by subdivision
(b) of Section 1431.

(7) To any employer who willfully made false statements in its
application.

(b) The director may revoke, suspend, or place a registration
on probation if:

(1) The employer has violated or failed to comply with any
provision of this chapter.

(2) The employer has made any misrepresentations or false
statements in his or her registration or registration renewal
application, or in response to the director’s request for
information.

(3) The employer has failed to respond to the director’s request
for information within 10 days of such a request.

(4) The employer has failed to notify the director or to provide
the director with updated responses within 30 days as required by
paragraphs (1) or (2) of subdivision (c) of Section 1431.

(5) The employer has not complied with its labor compliance
agreement.

(6) The conditions under which the registration was issued have
changed or no longer exist.

(7) The employer has not complied with the posting and
recordkeeping requirements of Section 1432.

(8) An employer’s registration has been revoked within three
years from the date of application.

(c) When determining whether to suspend, revoke, or place a
registration on probation, the director shall take into consideration
as a mitigating factor whether the employer has entered into or
otherwise fulfilled the terms of a labor compliance agreement as
described in Section 1436.

(d) An employer’s registration is void when:

(1) The employer ceases conducting any janitorial business.

(2) The employer changes its form of legal entity.

(3) The employer transfers its registration.

(4) The director revokes an employer’s registration.

(e) At least 30 days prior to the expiration of each employer’s
registration, the director shall mail or email a renewal notice to
the last known mailing or email address of the employer. However,
omission of the director to provide the renewal notice in
accordance with this subdivision shall not excuse an employer
from making timely application for renewal of registration, shall
not be a defense in any action or proceeding involving failure to
renew registration, and shall not subject the director to any legal
liability.

(f) Fees received pursuant to this section shall be deposited in
the fund established in Chapter 5 (commencing with Section 1445)
and shall be used only for the purposes specified in that chapter.

begin insert 1434. end insert   

(a) On and after February 1, 2018, on the department’s
Internet Web site, the director shall maintain a regularly updated,
searchable database of registered employers. The database will
have the capability to search all data, at minimum, for the past 10
years, and shall include all the following information:

(1) The name, address, telephone number, and registration
number of the employer.

(2) If the employer is a successor employer, the registration
number of any predecessor employers.

(3) The business addresses, telephone numbers, and email
addresses of the persons that the employer submitted under
subparagraph (H) of paragraph (2) of subdivision (b) of Section
1431, and, if the employer’s application listed anyone in clauses
(iv) and (v), the percent financial interest owned by that person
or shareholder.

(4) The current status and effective dates of the employer’s
registration.

(5) The identity of the employer’s recognized collective
bargaining agent, if any.

(6) A listing of any past denials, revocations, or suspensions of
the employer’s registration, including the effective dates of those
past denials, revocations, or suspensions, as well as the basis for
them

(7) A listing of any civil fines or stop orders issued against the
employer under this part, including the dates of those fines or stop
orders, and the basis for them.

(8) A listing of all labor compliance agreements the employer
has executed, and their effective dates.

(9) A copy of all labor compliance agreements the employer
has executed.

(10) Other information as deemed necessary by the director.

(b) On and after July 1, 2018, on the department’s Internet Web
site, the director shall maintain a searchable database regarding
its compliance and enforcement activities. The department shall
update this information on or before July 1 of every year. The
database shall have the capability to search all data, at minimum,
for the past 10 years and shall include all the following
information:

(1) The total number of employers with current, valid
registration that meets the requirements under Section 1431.

(2) The total number of employers whose registration was
revoked or suspended, or who have been placed on probation
within the last 12 months, categorized by the basis of that
revocation, suspension, or probation.

(3) The total number of employers who have entered into a labor
compliance agreement with the director within the last 12 months.

(4) The total amount of fines and the total number of employers
that the department has cited under Section 1437 within the last
12 months, categorized by the basis of those fines.

(5) The total number of employers who have been issued stop
orders under Section 1438 over the last 12 months, categorized
by the basis of those stop orders.

(6) The total number of audits initiated and completed by the
department under Section 1439, within the last 12 months.

(7) The total number of complaints investigated by the
department under Section 1440, within the last 12 months.

(8) Other information as deemed necessary by the director.

 

Chapter   begin insert 4. end insert Enforcement

 

begin insert 1435. end insert   

The director shall establish a Property Services
Compliance Unit to enforce this part, including, but not limited
to:

(a) Maintaining the janitorial contractor registry, list, and
Internet Web site.

(b) Negotiating and enforcing labor compliance agreements.

(c) Conducting audits and investigating complaints.

begin insert 1436. end insert   

Whenever an employer has a record of serious, willful,
or pervasive violations of the laws or has violated one or more
provisions of this part, the director may seek to negotiate and enter
into a labor compliance agreement with the employer. The labor
compliance agreement addresses appropriate remedial measures,
compliance assistance, and any steps to resolve issues to increase
compliance with covered laws, the requirements of this part, or
other related matters. The employer shall comply with the terms
of the labor compliance agreement. Covered workers affected by
an employer’s record of serious, willful, or pervasive violations
of the laws or who have initiated a complaint against an employer
for its violations of this part shall have an opportunity to
participate in the development and monitoring of such labor
compliance agreements. If the covered workers are represented
by a collective bargaining agent, their collective bargaining agent
shall have that opportunity as well. The director may seek to
engage a labor-management cooperation committee established
pursuant to the federal Labor Management Cooperation Act of
1978 (Section 175a of Title 29 of the United States Code) whose
members include a collective bargaining agent that represents
covered workers in the development and monitoring of any labor
compliance agreement.

begin insert 1437. end insert   

(a) An employer that meets any of the following
requirements is subject to the following civil fines, either
individually or in combination with one another:

(1) An employer that pursuant to this part, fails to register or
to renew its registration is subject to a civil fine of not more than
two hundred dollars ($200) for each calendar day, or portion
thereof, that the employer conducts any janitorial business without
registering or renewing its registration.

(2) An employer that fails to submit correct information to the
department or that fails to provide information requested by the
department within 10 days of such a request, is subject to a civil
fine of not more than two hundred dollars ($200) for each calendar
day, or portion thereof, that the employer conducts any janitorial
business without submitting the correct information to the
department or providing the information requested by the
department.

(3) An employer that fails to comply with its labor compliance
agreement, is subject to a civil fine of not more than two hundred
dollars ($200) for each calendar day, or portion thereof, that the
employer conducts any janitorial business without complying with
its labor compliance agreement.

(4) An employer that fails to notify the director within 30
calendar days as required in paragraph (1) of subdivision (c) of
Section 1431, is subject to a civil fine of not more than two hundred
dollars ($200) for each calendar day, or portion thereof, that the
employer conducts any janitorial business without notifying the
director.

(5) An employer that fails to provide the director with updated
responses within 30 calendar days as required in paragraph (2)
of subdivision (c) of Section 1431, is subject to a civil fine of not
more than two hundred dollars ($200) for each calendar day, or
portion thereof, that the employer conducts any janitorial business
without notifying the director.

(b) The amount of the civil fine or fines in subdivision (a) shall
be determined by the director based on consideration of the
following:

(1) Whether the failure of the employer was a good faith mistake,
and, if so, whether the error was promptly and voluntarily
corrected when brought to the attention of the employer.

(2) Whether the employer has a prior record of failing to comply
with the requirements in this chapter.

(3) Whether the employer has entered into and has currently
fulfilled the terms of a labor compliance agreement under Section
1436.

(4) For each individual violation, the fine may not be less than:

(A) One hundred dollars ($100) for each calendar day, or
portion thereof, unless the failure of the employer was a good faith
mistake, and, if so, the error was promptly and voluntarily
corrected when brought to the attention of the employer.

(B) One hundred fifty dollars ($150) for each calendar day, or
portion thereof, if the employer has been assessed fines or a stop
order within the previous three years for failing to meet the
requirements of this part, unless those fines were subsequently
withdrawn or overturned.

(C) Two hundred dollars ($200) for each calendar day, or
portion thereof, if the department determines that the violation
was willful.

(c) An employer who violates the posting and recordkeeping
requirements of Section 1432 shall be subject to civil fines of up
to seven thousand dollars ($7,000) per violation.

(d) The determination by the director as to the amount of the
fines shall be reviewable only for abuse of discretion.

(e) These civil fines may be assessed under a citation issued by
the Labor Commissioner and the procedures for issuing, contesting,
and enforcing judgments shall be the same as those set forth in
Section 1197.1.

begin insert 1438. end insert   

If an employer is conducting business without a valid
registration under Section 1431, the Labor Commissioner may
issue and serve on that employer a stop order prohibiting the use
of labor by that employer until the employer acquires a valid
registration, provided that the stop order would not compromise
or imperil public safety or the life, health, and care of vulnerable
individuals. The stop order shall also prohibit the employer from
continuing to provide services by conducting business using the
labor of another business, contractor, or subcontractor. The stop
order shall become effective immediately upon the service of the
order. Any worker affected by the work stoppage shall be paid by
the employer for such time lost, not exceeding 10 days, pending
compliance by the employer. The employer may protest the stop
order by making and filing with the Labor Commissioner a written
request for a hearing within 20 days after service of the stop order.
The hearing shall be held within five days from the date of filing
the request. The Labor Commissioner shall notify the employer of
the time and place of the hearing by mail. At the conclusion of the
hearing, the stop order shall be immediately affirmed or dismissed,
and within 24 hours thereafter, the Labor Commissioner shall
issue and serve on all parties to the hearing by registered or
certified mail a written notice of findings, accompanied by written
findings. A writ of mandate may be taken from the findings to the
appropriate superior court. The writ shall be taken within 45 days
after the mailing of the notice of findings accompanied by written
findings. The Labor Commissioner may file an action in superior
court for injunctive and other appropriate relief to enforce the
stop order and shall be entitled to recovery of costs and attorney’s
fees if any relief is obtained by the Labor Commissioner.

begin insert 1439. end insert   

(a) On its Internet Web site, the department shall
maintain and update annually a list of known janitorial employers
in California. The list shall be based on information provided to
the department pursuant to Section 1431, and on any other sources
of information available.

(b) In a manner prescribed by the director, the department shall
select employers as audit subjects for the purpose of determining
compliance with this part. The department shall select each
employer from the list of known janitorial employers at least once
every five years. Audit subjects may be selected in any order, and
routine audits may be scheduled in a manner to best minimize
travel expenses and use audit personnel efficiently.

(c) The department may select audit subjects using random and
nonrandom selection methods. At least half of the audit subjects
shall be selected at random from the department’s listing of known
janitorial employers. The final selection of audit subjects shall be
within the discretion of the department.

(d) The department may investigate information or complaints
in addition to conducting an audit.

begin insert 1440. end insert   

The department shall conduct a reasonable and timely
investigation upon receiving a complaint regarding a potential
violation of the requirements of this part from a covered worker,
a collective bargaining agent that represents covered workers, or
a labor management cooperation committee established pursuant
to the federal Labor Management Cooperation Act of 1978 (Section
175a of Title 29 of the United States Code) whose members include
a collective bargaining agent that represents covered workers.
The department shall make a written determination regarding the
disposition of each complaint within 30 days, which can be
extended by good cause by the director.

begin insert 1441. end insert   

(a) Any employer that conducts any janitorial business
after its registration has been suspended, revoked, or denied
reissuance is guilty of an offense punishable by a fine of not less
than ten thousand dollars ($10,000), or by imprisonment for not
less than six months and no more than one year, or both.

(b) Any employer, owner, director, officer, or managing agent
of the employer who fails to observe a stop order issued and served
upon him or her pursuant to Section 1438 is guilty of a
misdemeanor punishable by imprisonment in county jail not
exceeding 60 days or by a fine not exceeding ten thousand dollars
($10,000), or both. For the purposes of this section, the term
“managing agent” has the same meaning as in subdivision (b) of
Section 3294 of the Civil Code.

begin insert 1442. end insert   

After January 1, 2018, any person or entity that hires
an employer that does not have a current, valid registration under
Section 1431 on the date the person or entity enters into or renews
a contract or subcontract for janitorial services with the employer,
shall share with that employer all civil legal responsibility and
civil liability for all violations of Article 1 (commencing with
Section 12940) of Chapter 6 of Part 2.8 of Division 3 of Title 2 of
the Government Code.

begin insert 1443. end insert   

(a) A person or entity shall not discharge an individual
or in any manner discriminate, retaliate, or take an adverse action
against any individual because the individual engaged in any
conduct delineated in this part.

(b) Any individual who is discharged, threatened with discharge,
demoted, suspended, retaliated against, subject to an adverse
action, or in any other manner discriminated against in the terms
or conditions of his or her work because the individual engaged
in any conduct delineated in this part, shall be entitled to
reinstatement and reimbursement for lost wages and work benefits.

(c) Any person or entity who willfully refuses to hire, promote,
or otherwise restore an individual, including a current or former
worker, who has been determined to be eligible for rehiring or
promotion by a grievance procedure, arbitration, or hearing
authorized by law, is guilty of a misdemeanor.

(d) Any applicant for work who is refused work, or who in any
other manner is discriminated against in the terms and conditions
of any offer of work because the applicant engaged in any conduct
delineated in this part, shall be entitled to work and reimbursement
for lost wages and work benefits.

(e) Any worker aggrieved by any violation of this section may
bring a civil action for injunctive relief or damages, or both,
against a registered or nonregistered employer who violates this
section, and, upon prevailing, shall recover reasonable attorney’s
fees and costs, including expert witness fees.

(f) In addition to other remedies available, a person or entity
who violates this section is liable for a civil penalty not exceeding
ten thousand dollars ($10,000) per individual for each violation
of this section, to be awarded to the individual or individuals who
suffered this violation.

 

Chapter   begin insert 5. end insert State Janitorial Contractor Registration
Fund

 

begin insert 1445. end insert   

(a) The State Janitorial Contractor Registration Fund
is hereby created as a special fund in the State Treasury to be
available upon appropriation of the Legislature for the purposes
established in subdivision (b). All registration fees collected
pursuant to Section 1431, all civil fines collected pursuant to
Section 1437, and any other moneys as are designated by statute
or order shall be deposited in the fund.

(b) Moneys in the fund shall be used only for the following
purposes:

(1) The reasonable costs of administering the registration of
janitorial contractors pursuant to Section 1431.

(2) The costs and obligations associated with the administration
and enforcement of this part by the department.

(c) The annual employer registration renewal fee specified in
subdivision (b) of Section 1431, and any adjusted application
renewal fee, shall be set in amounts that are sufficient to support
the annual appropriation approved by the Legislature for the fund
and not result in a year-end fund balance greater than 25 percent
of the appropriation. Any year-end balance in the fund greater
than 25 percent of the appropriation shall be applied as a credit
when determining any fee adjustments for the subsequent fiscal
year.

(d) To provide adequate cash flow for the purposes specified
in subdivision (b), the Director of Finance, with the concurrence
of the Secretary of the Labor and Workforce Development Agency,
may approve a short-term loan each fiscal year from the Labor
and Workforce Development Fund to the State Janitorial
Contractor Registration Fund.

(1) The maximum amount of the annual loan allowable may be
up to, but shall not exceed, 50 percent of the appropriation
authority of the fund in the same year in which the loan was made.

(2) For the purposes of this section, a “short-term loan” is a
transfer that is made subject to both of the following conditions:

(A) Any amount loaned is to be repaid in full during the same
fiscal year in which the loan was made, except that repayment may
be delayed until a date not more than 30 days after the date of
enactment of the annual Budget Act for the subsequent fiscal year.

(B) Loans shall be repaid whenever the funds are needed to
meet cash expenditure needs in the loaning fund or account.

 

Chapter   begin insert 6. end insert Standards and Procedures

 

begin insert 1447. end insert   

Before July 1, 2017, the director shall develop all the
following standards and procedures:

(a) For the determination whether administrative merits
determinations, arbitral awards or decisions, or civil or criminal
judgments of covered laws are for serious, repeated, willful, or
pervasive violations. Those standards shall:

(1) Where available, incorporate existing statutory standards
for assessing whether a violation is serious, repeated, or willful.

(2) Where no statutory standards exist, develop standards that
take into account the following for determining whether a violation
is:

(A) “Serious”-- the number of workers affected, the degree of
risk posed or actual harm done by the violation to the health,
safety, or well-being of a worker, the amount of damages incurred
or fines or penalties assessed with regard to the violation, and
other considerations as the director finds appropriate.

(B) “Repeated”-- whether the entity has had one or more
additional violations of the same or a substantially similar
requirement in the past five years.

(C) “Willful”-- whether the entity knew of, showed reckless
disregard for, or acted with plain indifference to whether its
conduct was prohibited by covered laws.

(D) “Pervasive”-- the number of violations of a requirement
or the aggregate number of violations of requirements in relation
to the size of the entity.

(b) For a covered worker, a collective bargaining agent
representing covered workers, or a labor management cooperation
committee established pursuant to the federal Labor Management
Cooperation Act of 1978 (29 U.S.C. Sec. 175a), the membership
of which includes a collective bargaining agent that represents
covered workers, to file a complaint regarding an employer’s
failure to comply with the requirements of this part, and for the
department to investigate and issue a written determination
regarding each complaint within 30 days, which period may be
extended for good cause.

(c) For the suspension, revocation, or placement into
probationary status of an employer’s registration.

(d) For the department to negotiate and for the director to enter
into labor compliance agreements with employers as described in
Section 1436.

(e) For the director to conduct random and nonrandom audits
or investigations, or both audits and investigations.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert

begin delete

SECTION 1.  

Section 90.5 of the Labor Code is amended to
read:

90.5.  

(a) It is the policy of this state to vigorously enforce
minimum labor standards in order to ensure employees are not
required or permitted to work under substandard unlawful
conditions or for employers that have not secured the payment of
compensation, and to protect employers who comply with the law
from those who attempt to gain a competitive advantage at the
expense of their workers by failing to comply with minimum labor
standards.

(b) In order to ensure that minimum labor standards are
adequately enforced, the Labor Commissioner shall establish and
maintain a field enforcement unit, which shall be administratively
and physically separate from offices of the division that accept
and determine individual employee complaints. The unit shall have
offices in Los Angeles, San Francisco, San Jose, San Diego,
Sacramento, and any other locations that the Labor Commissioner
deems appropriate. The unit shall have primary responsibility for
administering and enforcing those statutes and regulations most
effectively enforced through field investigations, including Sections
226, 1021, 1021.5, 1193.5, 1193.6, 1194.5, 1197, 1198, 1771,
1776, 1777.5, 2651, 2673, 2675, and 3700, in accordance with the
plan adopted by the Labor Commissioner pursuant to subdivision
(c). Nothing in this section shall be construed to limit the authority
of this unit in enforcing any statute or regulation in the course of
its investigations.

(c) The Labor Commissioner shall adopt an enforcement plan
for the field enforcement unit. The plan shall identify priorities for
investigations to be undertaken by the unit that ensure the available
resources will be concentrated in industries, occupations, and areas
in which employees are relatively low paid and unskilled, and
those in which there has been a history of violations of the statutes
cited in subdivision (b), and those with high rates of noncompliance
with Section 3700.

(d) The Labor Commissioner shall annually report to the
Legislature, not later than March 1, concerning the following:

(1) The effectiveness of the field enforcement unit. This part of
the report shall include, but not be limited to, all of the following:

(A) The enforcement plan adopted by the Labor Commissioner
pursuant to subdivision (c), and the rationale for the priorities
identified in the plan.

(B) The number of establishments investigated by the unit, and
the number of types of violations found.

(C) The amount of wages found to be unlawfully withheld from
workers, and the amount of unpaid wages recovered for workers.

(D) The amount of penalties and unpaid wages transferred to
the General Fund as a result of the efforts of the unit.

(2) The status of wage claims and retaliation complaints. This
part of the report shall include, but not be limited to, all of the
following:

(A) The average amount of time it takes for a wage claim to
receive a preliminary hearing.

(B) The number of determinations issued, the number of
investigative hearings held, the number of complaints dismissed,
and the number of complaints found valid, grouped by the year in
which the complaints were filed.

(C) An update on the division’s current backlog of wage claims
and retaliation complaints.

(e) The report required by subdivision (d) shall be provided in
compliance with Section 9795 of the Government Code.

end delete