BILL NUMBER: AB 1978 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 22, 2016
AMENDED IN ASSEMBLY MAY 31, 2016
AMENDED IN ASSEMBLY APRIL 13, 2016
AMENDED IN ASSEMBLY MARCH 15, 2016
INTRODUCED BY Assembly Member Gonzalez
(Coauthors: Assembly Members Campos, Chu, Cristina
Garcia, Lopez, McCarty, Rodriguez, Santiago, Thurmond, and
Weber)
( Coauthor: Senator Beall
)
FEBRUARY 16, 2016
An act to amend Section 12940 of the Government Code, and to amend
Section 1106 of, and to add Part 4.2 (commencing with Section 1420)
to Division 2 of the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1978, as amended, Gonzalez. Employment: property service
workers.
Existing law establishes the Department of Industrial Relations 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
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.
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.
This bill would 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.
The bill would require the Labor Commissioner, no later than July
1, 2018, to develop worker and supervisor materials for a prescribed
4-hour training regarding sexual violence and sexual harassment 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 commissioner, beginning
July 1, 2019, to update theses these
materials annually. The bill would, on and after July 1, 2018,
require employers who provide janitorial services to have a system to
require that covered workers and supervisors, at least annually,
receive prescribed in-person training on workplace sexual violence
and sexual harassment. The bill would require the commissioner to
establish standards and requirements for trainers and recordkeeping
relating to training. The bill would require the Labor Commissioner
to develop minimum qualifications for trainers who provide the
training.
The bill would require the Occupational Safety and Health
Standards Board, by January 1, 2018, to adopt standards developed by
the Division of Occupational Safety and Health, in consultation with
a specified advisory group, 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 workplace sexual violence and sexual harassment.
The bill would require the registration of employers conducting
janitorial business, as prescribed, and establish specific authority
for the Labor Commissioner to enforce and implement that requirement.
The bill would set application and renewal fees. The bill would
prohibit an employer, on or after January
July 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 deny, suspend, or void a
registration in certain circumstances. The bill would require the
commissioner, on and after July 1, 2018, to maintain on the
commissioner's Internet Web site a regularly updated, searchable
database of registered employers, and, on and after July 1, 2019, a
searchable database regarding the compliance and enforcement
activities of the department.
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 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 commissioner. 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.
The bill would make conforming changes regarding the definition of
an employer.
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.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12940 of the Government Code is amended to
read:
12940. It is an unlawful employment practice, unless based upon a
bona fide occupational qualification, or, except where based upon
applicable security regulations established by the United States or
the State of California:
(a) For an employer, because of the race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, genetic information, marital status, sex, gender,
gender identity, gender expression, age, sexual orientation, or
military and veteran status of any person, to refuse to hire or
employ the person or to refuse to select the person for a training
program leading to employment, or to bar or to discharge the person
from employment or from a training program leading to employment, or
to discriminate against the person in compensation or in terms,
conditions, or privileges of employment.
(1) This part does not prohibit an employer from refusing to hire
or discharging an employee with a physical or mental disability, or
subject an employer to any legal liability resulting from the refusal
to employ or the discharge of an employee with a physical or mental
disability, where the employee, because of his or her physical or
mental disability, is unable to perform his or her essential duties
even with reasonable accommodations, or cannot perform those duties
in a manner that would not endanger his or her health or safety or
the health or safety of others even with reasonable accommodations.
(2) This part does not prohibit an employer from refusing to hire
or discharging an employee who, because of the employee's medical
condition, is unable to perform his or her essential duties even with
reasonable accommodations, or cannot perform those duties in a
manner that would not endanger the employee's health or safety or the
health or safety of others even with reasonable accommodations.
Nothing in this part shall subject an employer to any legal liability
resulting from the refusal to employ or the discharge of an employee
who, because of the employee's medical condition, is unable to
perform his or her essential duties, or cannot perform those duties
in a manner that would not endanger the employee's health or safety
or the health or safety of others even with reasonable
accommodations.
(3) Nothing in this part relating to discrimination on account of
marital status shall do either of the following:
(A) Affect the right of an employer to reasonably regulate, for
reasons of supervision, safety, security, or morale, the working of
spouses in the same department, division, or facility, consistent
with the rules and regulations adopted by the commission.
(B) Prohibit bona fide health plans from providing additional or
greater benefits to employees with dependents than to those employees
without or with fewer dependents.
(4) Nothing in this part relating to discrimination on account of
sex shall affect the right of an employer to use veteran status as a
factor in employee selection or to give special consideration to
Vietnam-era veterans.
(5) (A) This part does not prohibit an employer from refusing to
employ an individual because of his or her age if the law compels or
provides for that refusal. Promotions within the existing staff,
hiring or promotion on the basis of experience and training, rehiring
on the basis of seniority and prior service with the employer, or
hiring under an established recruiting program from high schools,
colleges, universities, or trade schools do not, in and of
themselves, constitute unlawful employment practices.
(B) The provisions of this part relating to discrimination on the
basis of age do not prohibit an employer from providing health
benefits or health care reimbursement plans to retired persons that
are altered, reduced, or eliminated when the person becomes eligible
for Medicare health benefits. This subparagraph applies to all
retiree health benefit plans and contractual provisions or practices
concerning retiree health benefits and health care reimbursement
plans in effect on or after January 1, 2011.
(b) For a labor organization, because of the race, religious
creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital status,
sex, gender, gender identity, gender expression, age, sexual
orientation, or military and veteran status of any person, to
exclude, expel, or restrict from its membership the person, or to
provide only second-class or segregated membership or to discriminate
against any person because of the race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, genetic information, marital status, sex, gender,
gender identity, gender expression, age, sexual orientation, or
military and veteran status of the person in the election of officers
of the labor organization or in the selection of the labor
organization's staff or to discriminate in any way against any of its
members or against any employer or against any person employed by an
employer.
(c) For any person to discriminate against any person in the
selection, termination, training, or other terms or treatment of that
person in any apprenticeship training program, any other training
program leading to employment, an unpaid internship, or another
limited duration program to provide unpaid work experience for that
person because of the race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity,
gender expression, age, sexual orientation, or military and veteran
status of the person discriminated against.
(d) For any employer or employment agency to print or circulate or
cause to be printed or circulated any publication, or to make any
nonjob-related inquiry of an employee or applicant, either verbal or
through use of an application form, that expresses, directly or
indirectly, any limitation, specification, or discrimination as to
race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender
expression, age, sexual orientation, or military and veteran status,
or any intent to make any such limitation, specification, or
discrimination. This part does not prohibit an employer or employment
agency from inquiring into the age of an applicant, or from
specifying age limitations, where the law compels or provides for
that action.
(e) (1) Except as provided in paragraph (2) or (3), for any
employer or employment agency to require any medical or psychological
examination of an applicant, to make any medical or psychological
inquiry of an applicant, to make any inquiry whether an applicant has
a mental disability or physical disability or medical condition, or
to make any inquiry regarding the nature or severity of a physical
disability, mental disability, or medical condition.
(2) Notwithstanding paragraph (1), an employer or employment
agency may inquire into the ability of an applicant to perform
job-related functions and may respond to an applicant's request for
reasonable accommodation.
(3) Notwithstanding paragraph (1), an employer or employment
agency may require a medical or psychological examination or make a
medical or psychological inquiry of a job applicant after an
employment offer has been made but prior to the commencement of
employment duties, provided that the examination or inquiry is job
related and consistent with business necessity and that all entering
employees in the same job classification are subject to the same
examination or inquiry.
(f) (1) Except as provided in paragraph (2), for any employer or
employment agency to require any medical or psychological examination
of an employee, to make any medical or psychological inquiry of an
employee, to make any inquiry whether an employee has a mental
disability, physical disability, or medical condition, or to make any
inquiry regarding the nature or severity of a physical disability,
mental disability, or medical condition.
(2) Notwithstanding paragraph (1), an employer or employment
agency may require any examinations or inquiries that it can show to
be job related and consistent with business necessity. An employer or
employment agency may conduct voluntary medical examinations,
including voluntary medical histories, which are part of an employee
health program available to employees at that worksite.
(g) For any employer, labor organization, or employment agency to
harass, discharge, expel, or otherwise discriminate against any
person because the person has made a report pursuant to Section
11161.8 of the Penal Code that prohibits retaliation against hospital
employees who report suspected patient abuse by health facilities or
community care facilities.
(h) For any employer, labor organization, employment agency, or
person to discharge, expel, or otherwise discriminate against any
person because the person has opposed any practices forbidden under
this part or because the person has filed a complaint, testified, or
assisted in any proceeding under this part.
(i) For any person to aid, abet, incite, compel, or coerce the
doing of any of the acts forbidden under this part, or to attempt to
do so.
(j) (1) For an employer, labor organization, employment agency,
apprenticeship training program or any training program leading to
employment, or any other person, because of race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital status,
sex, gender, gender identity, gender expression, age, sexual
orientation, or military and veteran status, to harass an employee,
an applicant, an unpaid intern or volunteer, or a person providing
services pursuant to a contract. Harassment of an employee, an
applicant, an unpaid intern or volunteer, or a person providing
services pursuant to a contract by an employee, other than an agent
or supervisor, shall be unlawful if the entity, or its agents or
supervisors, knows or should have known of this conduct and fails to
take immediate and appropriate corrective action. An employer may
also be responsible for the acts of nonemployees, with respect to
sexual harassment of employees, applicants, unpaid interns or
volunteers, or persons providing services pursuant to a contract in
the workplace, where the employer, or its agents or supervisors,
knows or should have known of the conduct and fails to take immediate
and appropriate corrective action. In reviewing cases involving the
acts of nonemployees, the extent of the employer's control and any
other legal responsibility that the employer may have with respect to
the conduct of those nonemployees shall be considered. An entity
shall take all reasonable steps to prevent harassment from occurring.
Loss of tangible job benefits shall not be necessary in order to
establish harassment.
(2) The provisions of this subdivision are declaratory of existing
law, except for the new duties imposed on employers with regard to
harassment.
(3) An employee of an entity subject to this subdivision is
personally liable for any harassment prohibited by this section that
is perpetrated by the employee, regardless of whether the employer or
covered entity knows or should have known of the conduct and fails
to take immediate and appropriate corrective action.
(4) (A) For purposes of this subdivision only, "employer" means
any person regularly employing one or more persons or regularly
receiving the services of one or more persons providing services
pursuant to a contract, or any person acting as an agent of an
employer, directly or indirectly, the state, or any political or
civil subdivision of the state, and cities. The definition of
"employer" in subdivision (d) of Section 12926 applies to all
provisions of this section other than this subdivision.
(B) Notwithstanding subparagraph (A), for purposes of this
subdivision, "employer" does not include a religious association or
corporation not organized for private profit, except as provided in
Section 12926.2.
(C) For purposes of this subdivision, "harassment" because of sex
includes sexual harassment, gender harassment, and harassment based
on pregnancy, childbirth, or related medical conditions. Sexually
harassing conduct need not be motivated by sexual desire.
(D) For purposes of this subdivision, on and after July 1, 2018:
(i) Any person or entity that contracts with a janitorial employer
as defined by subdivision (d) of Section 1421 of the Labor Code who
lacks a current and valid registration under Part 4.2 (commencing
with Section 1420) of Division 2 of the Labor Code on the date the
person or entity enters into or renews a contract or subcontract for
janitorial services with the janitorial employer, is an "employer" as
defined by paragraph (4).
(ii) Any person or entity that contracts with a janitorial
employer, as defined by subdivision (d) of Section 1421 of the Labor
Code, who has a current and valid registration under Part 4.2
(commencing with Section 1420) of Division 2 of the Labor Code on the
date the person or entity enters into or renews a contract or
subcontract for janitorial services with the janitorial employer, is
presumed not to be an "employer" as defined by paragraph (4) of the
persons providing services pursuant to the contract or subcontract
for janitorial services.
(5) For purposes of this subdivision, "a person providing services
pursuant to a contract" means a person who meets all of the
following criteria:
(A) The person has the right to control the performance of the
contract for services and discretion as to the manner of performance.
(B) The person is customarily engaged in an independently
established business.
(C) The person has control over the time and place the work is
performed, supplies the tools and instruments used in the work, and
performs work that requires a particular skill not ordinarily used in
the course of the employer's work.
(k) For an employer, labor organization, employment agency,
apprenticeship training program, or any training program leading to
employment, to fail to take all reasonable steps necessary to prevent
discrimination and harassment from occurring.
(l) (1) For an employer or other entity covered by this part to
refuse to hire or employ a person or to refuse to select a person for
a training program leading to employment or to bar or to discharge a
person from employment or from a training program leading to
employment, or to discriminate against a person in compensation or in
terms, conditions, or privileges of employment because of a conflict
between the person's religious belief or observance and any
employment requirement, unless the employer or other entity covered
by this part demonstrates that it has explored any available
reasonable alternative means of accommodating the religious belief or
observance, including the possibilities of excusing the person from
those duties that conflict with his or her religious belief or
observance or permitting those duties to be performed at another time
or by another person, but is unable to reasonably accommodate the
religious belief or observance without undue hardship, as defined in
subdivision (u) of Section 12926, on the conduct of the business of
the employer or other entity covered by this part. Religious belief
or observance, as used in this section, includes, but is not limited
to, observance of a Sabbath or other religious holy day or days,
reasonable time necessary for travel prior and subsequent to a
religious observance, and religious dress practice and religious
grooming practice as described in subdivision (q) of Section 12926.
This subdivision shall also apply to an apprenticeship training
program, an unpaid internship, and any other program to provide
unpaid experience for a person in the workplace or industry.
(2) An accommodation of an individual's religious dress practice
or religious grooming practice is not reasonable if the accommodation
requires segregation of the individual from other employees or the
public.
(3) An accommodation is not required under this subdivision if it
would result in a violation of this part or any other law prohibiting
discrimination or protecting civil rights, including subdivision (b)
of Section 51 of the Civil Code and Section 11135 of this code.
(4) For an employer or other entity covered by this part to, in
addition to the employee protections provided pursuant to subdivision
(h), retaliate or otherwise discriminate against a person for
requesting accommodation under this subdivision, regardless of
whether the request was granted.
(m) (1) For an employer or other entity covered by this part to
fail to make reasonable accommodation for the known physical or
mental disability of an applicant or employee. Nothing in this
subdivision or in paragraph (1) or (2) of subdivision (a) shall be
construed to require an accommodation that is demonstrated by the
employer or other covered entity to produce undue hardship, as
defined in subdivision (u) of Section 12926, to its operation.
(2) For an employer or other entity covered by this part to, in
addition to the employee protections provided pursuant to subdivision
(h), retaliate or otherwise discriminate against a person for
requesting accommodation under this subdivision, regardless of
whether the request was granted.
(n) For an employer or other entity covered by this part to fail
to engage in a timely, good faith, interactive process with the
employee or applicant to determine effective reasonable
accommodations, if any, in response to a request for reasonable
accommodation by an employee or applicant with a known physical or
mental disability or known medical condition.
(o) For an employer or other entity covered by this part, to
subject, directly or indirectly, any employee, applicant, or other
person to a test for the presence of a genetic characteristic.
(p) Nothing in this section shall be interpreted as preventing the
ability of employers to identify members of the military or veterans
for purposes of awarding a veteran's preference as permitted by law.
SEC. 2. Section 1106 of the Labor Code is amended to read:
1106. For purposes of Sections 1102.5, 1102.6, 1102.7, 1102.8,
1104, and 1105, "employee" includes, but is not limited to, any
individual employed by the state or any subdivision thereof, any
county, city, city and county, including any charter city or county,
and any school district, community college district, municipal or
public corporation, political subdivision, or the University of
California, or any covered worker as defined in subdivision (a) of
Section 1421.
SEC. 3. Part 4.2 (commencing with Section 1420) is added to
Division 2 of the Labor Code, to read:
PART 4.2. Property Service Workers Protection Act
CHAPTER 1. GENERAL
1420. (a) The Legislature finds and declares that in the
janitorial industry in this state:
(1) Workers are widely victimized by wage theft, workplace sexual
violence and harassment, failure to provide workers' compensation
insurance, and other illegal practices perpetrated by unscrupulous
contractors that fail to comply with existing labor standards laws.
(2) 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 inadequate training. Adopting standards to protect workers from
sexual violence and sexual harassment must be an obligation of all
involved in the janitorial industry.
(3) Contractors, including subcontractors and franchisors, are
often undercapitalized, change names, and abuse their corporate
identity; making it difficult for victimized workers to secure
meaningful legal relief.
(4) While some contractors comply with labor standards laws and
invest in training and retaining a more skilled workforce, these
contractors are undercut by unscrupulous competitors in a continual
race to the bottom.
(5) It is in the public interest that contractors 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.
(6) Despite the state's many efforts over the years to bring
underground economy practices in the janitorial industry under
control, these practices persist.
(7) Absent additional regulation of labor standards by the state
to prevent the undercutting of law-abiding contractors, the current
situation is unlikely to change.
(b) It is the intent of the Legislature in enacting this part to:
(1) Direct janitorial contractors to post a notice regarding
workplace sexual violence and harassment and to establish a system to
require all janitorial workers and supervisors to at least annually
receive comprehensive in-person training regarding workplace sexual
violence and harassment tailored to the janitorial industry. It is
also the intent of the Legislature, in enacting this part, to direct
the Labor Commissioner, in consultation with labor organizations that
represent janitors and with nonprofits that advocate for policies
and standards to prevent workplace sexual violence and harassment in
the janitorial industry, to develop the notice and the worker and
supervisor education materials for these trainings in the languages
and literacy levels that are appropriate for the janitorial
workforce, and to establish standards for the trainers who are to
deliver these trainings.
(2) Direct the Occupational Safety and Health Standards Board to
require janitorial industry contractors to include the training,
indicated in paragraph (1) above, 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 act.
1421. This part shall be known, and may be cited, as the Property
Service Workers Protection Act.
1422. For purposes of this part:
(a) (1) "Covered worker" means a janitor, including any individual
predominantly 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.
(2) "Covered workers" does not include any individual whose work
duties are predominantly final cleanup of debris, grounds, and
buildings near the completion of a construction, alteration,
demolition, installation, or repair work project, including, but not
limited to, street cleaners.
(b) "Current and valid registration" means an active registration
pursuant to Chapter 3 (commencing with Section 1430) that is not void
or suspended.
(c) "Director" means the Director of the Department of Industrial
Relations.
(c) "Delinquent liability" means any unsatisfied final judgment,
order, assessment, or determination by a court or by any federal,
state, or local administrative agency, including a confirmed
arbitration award, or accord, for unpaid compensation or backpay, for
having committed sexual harassment of a covered worker or for having
violated any provision of this part, and for related damages,
interest, fines, and penalties. An employer shall not have any
delinquent liability for a final judgment, order, assessment,
determination, including a confirmed arbitration award, or accord
that is under appeal if the employer has secured the payment of any
amount eventually found due through a bond or other appropriate
means.
(d) "Department" means the Department of Industrial Relations.
(e) "Director" means the Director of Industrial Relations.
(e)
(f) (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 who has operated with a current and 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.
(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, grandson, granddaughter,
mother-in-law, father-in-law, brother-in-law, sister-in-law, or
cousin.
(f)
(g) "Labor Commissioner" means the Labor Commissioner
of the Division of Labor Standards Enforcement of the Department.
(g)
(h) "State Janitorial Contractor Registration Fund" or
"fund" means the State Janitorial Contractor Registration Fund
established in Chapter 5 (commencing with Section 1445).
(h)
(i) "Standards board" means the Occupational Safety and
Health Standards Board.
(i)
(j) "Supervisor" has the same meaning as in subdivision
(t) of Section 12926 of the Government Code.
CHAPTER 2. PROTECTIONS AGAINST WORKPLACE SEXUAL VIOLENCE AND
HARASSMENT
1425. (a) The Labor Commissioner, no later than January 1, 2018,
shall do all of the following in consultation and partnership with an
advisory group that meets the requirements of Section 1427:
(1) Develop worker and supervisor agendas, handouts,
trainer guides, and other materials for a four-hour training
regarding sexual violence and sexual harassment 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 violence and sexual harassment;
employers' legal obligations to prevent workplace sexual violence and
sexual harassment; potential legal and disciplinary consequences for
employers and perpetrators of workplace sexual violence and sexual
harassment; community, mental health, and legal resources locally
available for those who have experienced workplace sexual violence
and sexual harassment; legal protections available to immigrant
workers subjected to workplace sexual violence and sexual harassment,
including, but not limited to, the federal U nonimmigrant status
known as U visa; prevention, protection, and reporting strategies for
workplace sexual violence and sexual harassment; information on
filing administrative complaints with the appropriate state and
federal agencies; antiretaliation and other legal protections for
those who have experienced workplace sexual violence and sexual
harassment; information regarding the Injury and Illness Protection
Program of the Division of Occupational Safety and Health, and on the
employer's workplace sexual violence and sexual harassment
prevention plan, as described in Section 1426, and other topics as
the Labor Commissioner deems necessary for janitorial workers and
supervisors.
(B) The Labor Commissioner shall provide these materials in all
languages that are the language spoken at home of at least 2,000
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) Beginning July 1, 2019, the Labor Commissioner 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 minimum qualification standards for trainers who may
deliver training, including including,
but not limited to, a minimum of five three
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. non-English speakers with a reading ability
at or below the fifth grade level in the language spoken at home. If
the minimum qualification standards are met, nothing in this section
shall be interpreted to preclude the collective bargaining agent
that represents the employer's covered workers or the designee of the
collective bargaining agent from delivering the trainings.
(3) Develop the size, form, and content of a notice to be posted
by employers consistent with the requirements of paragraph (3) of
subdivision (b), below, that shall inform covered workers of their
rights under the anti-sexual harassment laws, contain examples of
illegal employer conduct, and provide the telephone numbers for
nonprofit, nongovernmental organizations able to provide help,
referral services, training, and general information to those who
have experienced workplace sexual violence and harassment or labor
trafficking. The Labor Commissioner shall develop an approved notice
that has been translated into the languages specified in subparagraph
(B) of paragraph (1) of subdivision (a) and shall make the notice
available on its Internet Web site.
(b) On and after July 1, 2018, all employers shall:
(1) Have a system to require all covered workers and supervisors
to, at least annually, receive comprehensive, accurate and
appropriate in-person training lasting at least four hours
regarding workplace sexual violence and sexual harassment that
provides an opportunity for interactive questions and answers. These
mandatory trainings shall use the worker and supervisor materials in
paragraph (1) of subdivision (a) and shall be delivered in English
and in all primary languages spoken at home by at least 25 percent of
the employer's covered workers in the State of California. 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 60 days of hire. Employers shall pay
employees and supervisors at their regular
hourly rate of pay for participating in these trainings or, if
the training causes an employee or supervisor to work overtime hours,
at his or her overtime rate of pay.
(2) Maintain accurate records for a minimum of three years
documenting the delivery of training by qualified trainers which
includes: certificates of completion for participants, 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.
(3) Post and display prominently a notice that complies with the
requirements of paragraph (3) of subdivision (a) in all languages
that have been made available by the Labor Commissioner. The notice
shall be posted in a conspicuous place where the notice may be read
by covered workers during work hours, and in all places where notices
to covered workers are posted both physically and electronically.
(c) The Labor Commissioner shall have broad authority to enforce
and implement the provisions of this chapter and may establish
through regulation any procedures necessary to carry out such
provisions.
1426. (a) The standards board, by no later than January 1, 2018,
shall adopt standards developed by the Division of Occupational
Safety and Health, in consultation and partnership with an advisory
group that meets the requirements of Section 1427, 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 workplace sexual violence and
harassment.
(b) The standards adopted pursuant to subdivision (a) shall
include all of the following:
(1) A requirement that the workplace sexual violence and sexual
harassment prevention plan shall be in effect at all times and 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 covered
workers against workplace sexual violence and sexual harassment from
clients, coworkers, supervisors, building tenants, visitors, and
intruders.
(4) A system to, at least annually, assess and improve upon
factors that may contribute to, or help prevent workplace sexual
violence and sexual harassment.
(5) A requirement that all workplace sexual violence and sexual
harassment prevention plans, and the annual assessment of those
plans, be developed in consultation and partnership with covered
workers, including their recognized collective bargaining agents, if
any.
(6) A requirement that all workplace sexual violence and sexual
harassment prevention plans include training, notice, and
recordkeeping requirements consistent with the requirements of
Section 1425.
(7) A requirement that employers maintain records of complaints
and incidents of workplace sexual violence and sexual harassment for
a minimum period of three years, including the date, number of
employees involved, nature of the claim or incident, worksite
location, investigation steps, and results of the employer's
investigation.
(8) 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.
(9)
(8) A requirement that employers notify covered
workers, workers who have complained of
an incident of workplace sexual violence or harassment,
harassment of how to report such an incident to
an appropriate government agency or to law enforcement as well as of
any resources available to covered workers for coping with such an
incident, including, but not limited to, employee assistance
programs.
(c) 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.
1427. The Labor Commissioner and the Division of Occupational
Safety and Health shall each appoint an advisory group of
stakeholders to assist them in carrying out their respective
responsibilities under this chapter. The advisory group shall include
representatives from at least one nonprofit organization that
advocates for policies and standards to prevent workplace sexual
violence and harassment in the janitorial industry, and from a labor
organization that represents covered workers. The term "nonprofit
organization" means a nonprofit entity exempt from taxation pursuant
to Section 501(c)(3) of the Internal Revenue Code (26 U.S.C. Sec. 501
(c)(3)) or pursuant to Section 501(c)(5) of the Internal Revenue Code
(26 U.S.C. Sec. 501(c)(5)), or a nonprofit corporation.
CHAPTER 3. REGISTRATION OF JANITORIAL CONTRACTORS
1430. (a) The Labor Commissioner shall have broad authority to
interpret, 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) Conducting random and nonrandom audits or investigations of
complaints, or both audits and investigations.
(3) Issuing, renewing, denying renewal of, suspending
suspending, and voiding an employer's
registration and certificate of registration.
(4) Issuing civil fines and stop orders.
(5) Other powers as determined by the Labor Commissioner that are
necessary to interpret, implement, and enforce this chapter and
Chapter 4 (commencing with Section 1440).
(b) The Labor Commissioner may establish through the adoption of
regulations any procedures it determines to be necessary to carry out
the provisions of this chapter and of Chapter 4 (commencing with
Section 1440).
1431. (a) On and after January 1, 2018, the Labor Commissioner
shall maintain an on-line online
registration system of employers integrated with the Labor
Commissioner's system for managing investigations.
(b) On and after July 1, 2018, no employer may conduct any
janitorial business without a current and valid registration under
this chapter and all employers shall be registered with the Labor
Commissioner pursuant to this chapter.
(c) On and after January 1, 2018, to qualify for a certificate of
registration or for a renewal of a certificate of registration under
this chapter, an employer shall, in a manner prescribed by the Labor
Commissioner, do all of the following:
(1) Register online with the Labor Commissioner and pay an initial
nonrefundable application fee of one thousand dollars
($1,000) five hundred dollars ($500) and an
annual renewal fee of one thousand dollars ($1,000)
five hundred dollars ($500) 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 1450.
(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 names, residential addresses, business addresses,
telephone numbers, email addresses and Social Security
social security numbers, federal employer
identification number (FEIN) (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. shareholders, except that in the case of
a publicly traded corporation, a listing of principal
officers shall suffice.
(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. persons, except that in the case of a public
ly traded corporation, a listing of principal officers
shall suffice.
(H) The total number of covered workers who are employees of the
employer.
(I) The total number of covered workers who are independent
contractors of the employer.
(J) The total number of covered workers who are franchisees 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)
(M) Name, address, and telephone number of any
recognized collective bargaining agent representing any of the
employer's covered workers, and whether that collective bargaining
agent represents all of the employer's covered workers in California.
(O)
(N) Whether the application is for a new or renewal
registration and, if the application is for a renewal, the prior
registration number.
(P)
(O) 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)
(P) Certification that the information submitted to the
Labor Commissioner under this paragraph and paragraph (3) is
complete.
(R)
(Q) A written pledge under penalty of perjury under the
laws of the State of California 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 and registration laws that affect covered
workers, including, but not limited to, Sections 96.8, 98, 98.6, and
98.7, Section, 238 to 238.5, inclusive, Sections 244, 558.1, 1019,
and 1024.6, Section 1060 to Section 1065, inclusive, and Sections
1102.5 and 2810 of this code, Section 690.020 to Section 690.050,
inclusive, of the Code of Civil Procedure, and Section 494.6 of the
Business and Profession Code; and timely notify the Labor
Commissioner as required by subdivision (d).
(ii) Timely notify the Labor Commissioner as required by
subdivision (d).
(S)
(R) Such other information as the Labor Commissioner
requires for the administration and enforcement of this
chapter. chapter and Chapter 4 (commencing with
Section 1440).
(T)
(S) A post office box and mail drop are not acceptable
responses to subparagraphs (F), (G), and (I) above.
(3) Execute a written report statement
that provides evidence or disclosures
disclosure under penalty of perjury under the laws of the State
of California, as are necessary California
to establish all of the following:
(A) The employer has workers' compensation coverage that complies
with Division 4 (commencing with Section 3200) and includes
sufficient coverage for every 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 covered worker or the state for any assessment of unpaid
compensation or backpay, for having committed sexual harassment of a
covered worker, or for having violated any provision of this part,
or, in all cases, for 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 or a settlement agreement. If the
employer is a covered successor employer, then the employer shall
establish that both the covered successor employer and the
predecessor employer do not have such delinquent liability. However,
for purposes of this subparagraph, the employer shall not be
disqualified for any judgment, order, or determination that is under
appeal or for any settlement agreement that is being adjudicated, the
employer has secured the payment of any amount eventually found due
through a bond or other appropriate means. has
satisfied the requirement of either of the following:
(i) If the employer does not have any delinquent liability to a
covered worker or the state, then the employer shall execute a
written statement in accordance with this paragraph that the employer
is not liable. If the employer is a covered successor employer, then
the employer shall verify that both the covered successor employer
and the predecessor employer do not have delinquent liability.
(ii) If the employer does have delinquent liability, as described
in clause (i), that the employer has on file with the Labor
Commissioner a bond sufficient to guarantee payment for any
delinquent liability applicable under clause (i) or, in lieu thereof,
a notarized copy of an accord with the covered worker or the state
to whom the employer owes the delinquent liability. If the accord
provides for the delinquent liability to be paid for in installments,
then the employer must provide evidence or disclosures under penalty
of perjury under the laws of this state that it is current on any
installment payments under the accord.
(C) Any administrative merits determinations, arbitral awards or
decisions, civil judgments, or criminal judgments rendered against
the employer within the preceding five-year period for assessments
for unpaid compensation or backpay, for having committed sexual
harassment of a covered worker, or for having violated any provision
of this part, or, in all cases, for related damages, interests,
fines, and penalties. 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) On and after July 1, 2018, the employer has a sexual violence
and sexual harassment prevention plan that meets the requirements of
subdivision (b) of Section 1426.
(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)
(E) On and after July 1, 2018, the employer is in
compliance with all the requirements of Section 1425.
(G)
(F) Other information as the Labor Commissioner
requires for the administration and enforcement of this chapter and
of Chapter 4 (commencing with Section 1440).
(d) After an employer is registered or has renewed its
registration, the employer shall notify the Labor Commissioner in
writing within 90 days of:
(1) Any delinquent liability the employer owes to a covered worker
or the state for any assessment of unpaid compensation or
backpay, for having committed sexual harassment of a covered worker,
or for having violated any provision of this part, or in all cases,
for related damages, interest, fines, or penalties pursuant to any
final judgment, order, determination by a court or any federal,
state, or local administrative agency, including a confirmed
arbitration award, or settlement agreement. state.
(2) Any updated responses to the registration or renewal
application or report statement if any
change occurs that would change any response in the completed
application or report statement the
employer submitted under paragraphs (2) and (3) of subdivision (c).
(e) At least 30 days prior to the expiration of each employer's
registration, the Labor Commissioner shall mail or email a renewal
notice to the last known mailing or email address of the employer.
However, the omission of the Labor Commissioner 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
Labor Commissioner to any legal liability.
(f) Fees received pursuant to this section shall be deposited in
the State Janitorial Contractor Registration Fund established in
Chapter 5 (commencing with Section 1450) and shall be used only for
the purposes specified in that chapter.
1432. On and after July 1, 2018, the employer shall:
(a) Maintain records of the sign-in sheets and materials
consistent with paragraph (2) of subdivision (b) of Section 1425.
These records shall be available for inspection by the Labor
Commissioner.
(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, 2018, the notice in paragraph (3) of subdivision
(b) of Section 1425.
(2) By July 1, 2018, a copy of the employer's current certificate
of registration.
1433. (a) The Labor Commissioner shall not grant registration or
renewal of registration to any employer who:
(1) Lacks workers' compensation coverage that meets the
requirements of subparagraph (A) of paragraph (3) of subdivision (b)
of Section 1431.
(2) Has any delinquent liability to a worker or to the
state as described in paragraph (1) of subdivision (d) of Section
1431. state.
(3) Has not submitted the complete fees, application, information,
disclosures under penalty of perjury, and evidence as required by
subdivisions (b) to (d), inclusive, of Section 1431.
(4) Who has willfully made false statements in its application or
report statement to qualify for a
certificate of registration or for a renewal of a certificate of
registration under Section 1431.
(b) The Labor Commissioner shall suspend a registration if it is
found that:
(1) An employer willfully made false statements in its application
or its report statement submitted for
a certificate of registration or for a renewal of a certificate of
registration under Section 1431.
(2) The employer failed to notify the Labor Commissioner in
writing within 90 days of any delinquent liability as required by
paragraph (1) of subdivision (d) of Section 1431. If the employer
failed to notify the Labor Commissioner within 90 days, the employer'
s registration shall be automatically suspended on the date that the
Labor Commissioner is informed, or is made aware of the delinquent
liability. The suspension shall not be removed until proof of
satisfaction of the delinquent liability, or in lieu thereof, a
notarized copy of an accord is submitted to the Labor Commissioner.
If the employer notifies the Labor Commissioner in writing within 90
days of the imposition of any delinquent liability, the employer
shall, as a condition to the continual maintenance of the
registration, have on file with the Labor Commissioner a bond
sufficient to guarantee payment for any delinquent liability
applicable under this paragraph.
(A) By operation of law, failure to maintain the bond or failure
to abide by the accord shall result in the automatic suspension of
any registration to
which this paragraph applies. If the accord provides for the
delinquent liability to be paid in instalments, and an installment
payment is not made, then this shall be deemed to be failure to abide
by the accord.
(B) A registration that is suspended for failure to comply with
the provisions of this subdivision can only be reinstated when proof
of satisfaction of all debts is made, or when a notarized copy of an
accord has been filed as set forth in this subdivision.
(C) The Labor Commissioner shall take the actions required by this
paragraph upon notification by any party having knowledge of the
outstanding judgment upon a showing of proof of the judgment.
(3) Lacks workers' compensation coverage that meets the
requirements of subparagraph (A) of paragraph (3) of subdivision (c)
of Section 1431.
(c) The Labor Commissioner may suspend a registration if:
(1) The employer has violated or failed to comply with the
requirements of subdivision (b) of Section 1425, Section 1426, or
the employer and its predecessor employer, if any, have a record
of more than one violation of Section 1432.
(2) The employer has made any misrepresentations or false
statements in his or her registration or registration renewal
application, or in response to the Labor Commissioner's request for
information.
(3) The employer has failed to respond to the Labor Commissioner's
request for information within 30 days of such a request.
(4) The employer has failed to notify or provide the Labor
Commissioner with updated responses within 90 days as required by
paragraph (2) of subdivision (d) of Section 1431.
(d) Before suspending any registration, the Labor
Commissioner shall hold proceedings in accordance with Chapter 4.5
(commencing with Section 11400) or Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code as
applicable, and the commissioner shall have all of the powers granted
therein. When determining whether to suspend or reissue a
registration, and when determining the duration of a suspension, the
Labor Commissioner shall take into consideration evidence and other
information submitted by the employer, covered workers, the employer'
s collective bargaining representative, if any, and 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 determination by the Labor Commissioner shall be reviewable only
for abuse of discretion.
(e) The Labor Commissioner may reissue a registration
after suspension only under the following circumstances:
upon application in the manner described by the Labor
Commissioner.
(1) To an individual upon application in a manner prescribed by
the Labor Commissioner.
(2) To a partnership upon application in a manner prescribed by
the Labor Commissioner if there is no change in the partners or in
the partnership structure.
(3) To a corporation upon application in a manner prescribed by
the Labor Commissioner if there is no change in the status of the
corporation as registered with the Secretary of State.
(4) To a limited liability company upon application in a manner
prescribed by the Labor Commissioner if there is no change in the
status of the company as registered with the Secretary of State.
1434. (a) 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 employer's registration has expired and no renewal has
been issued.
(5) The employer fails to return the renewal application, fees, or
report statement under subdivision (c)
or Section 1431 that was rejected by the Labor Commissioner for
insufficiency or incompleteness within 90 days from the date of
original notice or rejection.
(b) The void date on an application may be extended up to 90 days
upon documented evidence by the employer that the failure to complete
the application process was due to a medical emergency or other
circumstance beyond the control of the employer.
(c) A registration voided pursuant to this section shall remain in
the possession of the Labor Commissioner for the period as he or she
deems necessary and shall not be returned to the employer. Any
reapplication for a registration shall be accompanied by the fee
fixed by this chapter.
1435. (a) On and after July 1, 2018, on its Internet Web site,
the Labor Commissioner shall maintain a regularly updated, searchable
online database of all registered employers. The database will have
the capability to search all data, at minimum, for the past 10 years.
The database 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 (G) of
paragraph (2) of subdivision (c) 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, and whether that collective bargaining
agent represents all of the employer's covered workers in California.
(6) A listing of any past denials, suspensions, or voidances of
the employer's registration, including the effective dates of those
past denials, suspensions, or voidances 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) Other information as deemed necessary by the Labor
Commissioner.
(b) On and after July 1, 2019, on the department's Internet Web
site, the Labor Commissioner shall maintain a searchable online
database regarding its compliance and enforcement activities. The
Labor Commissioner 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 and valid
registration that meets the requirements under Chapter 3 (commencing
with Section 1430).
(2) The total number of employers whose registration or renewal of
registration was denied, suspended, or voided, within the last 12
months, categorized by the basis of that denial, suspension, or
voidance, and, if applicable, the duration of the suspension.
(3) The total monetary amount of fines, the total number of fines,
and the total number of employers that the Labor Commissioner has
cited under Section 1441 within the last 12 months, categorized by
the basis of those fines.
(4) The total number of employers who have been issued stop orders
under this part over the last 12 months, categorized by the basis of
those stop orders.
(5) The total number of audits initiated and completed by the
Labor Commissioner under this part, within the last 12 months.
(6) The total number of complaints investigated by the Labor
Commissioner under Section 1444, within the last 12 months.
(7) Other information as deemed necessary by the Labor
Commissioner.
CHAPTER 4. ENFORCEMENT
1440. The Labor Commissioner shall establish a Property Services
Compliance Unit to enforce this part, including, but not limited to
maintaining and enforcing the janitorial contractor registry, list,
and Internet Web site, conducting audits, and investigating
complaints.
1441. (a) On and after July 1, 2018, an employer who
fails to register or to renew its registration or that has a void or
suspended registration under this part is subject to a civil fine of
two hundred dollars ($200) for each calendar day, or portion thereof,
that the employer conducts any janitorial business without
registering or renewing its registration or with a void or suspended
registration. lacks a current and valid registration
under this part is subject to a civil fine of two thousand five
hundred dollars ($2,500) if the employer conducts any
janitorial business without a current and valid
registration under this part.
(b) An employer who violates any of the other requirements of this
chapter or of Chapter 3 (commencing with Section 1430) is subject to
a civil fine of not more than two hundred dollars ($200)
for each calendar day, or portion thereof, that the employer is in
violation of either chapter, with the exception of the posting and
recordkeeping requirements of Section 1432, in which case the
employer shall be subject to civil fines of up to seven thousand
dollars ($7,000) per violation. two thousand five
hundred dollars ($2,500).
(c) Any employer that has been previously assessed pursuant to
this section shall be subject to an additional penalty of one hundred
dollars ($100) for each calendar day that the employer conducts
business in violation of this chapter or of Chapter 3 (commencing
with Section 1430), however, this amount shall not exceed one hundred
thousand dollars ($100,000).
(c) The determination by the Labor Commissioner as to the amount
of the fines shall be reviewable only for abuse of discretion.
(d) 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.
1442. On and after July 1, 2018, if an employer is conducting
any janitorial business without a current and
valid registration under this part, 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 current and 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 any janitorial 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.
1443. (a) In a manner prescribed by the Labor Commissioner, the
Labor Commissioner may select registered and unregistered employers
as audit subjects for the purpose of determining compliance with this
part. 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.
(b) The Labor Commissioner may select audit subjects using random
and nonrandom selection methods. The final selection of audit
subjects shall be within the discretion of the Labor Commissioner.
(c) The Labor Commissioner may investigate information or
complaints in addition to conducting an audit.
1444. The Labor Commissioner 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.
1445. (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)
1445. 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
this part 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.
CHAPTER 5. STATE JANITORIAL CONTRACTOR REGISTRATION FUND
1450. (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, 1441, 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 Chapter 3 (commencing with Section
1430) and Chapter 4 (commencing with Section 1440) by the Labor
Commissioner.
(2) The costs and obligations associated with the administration
and enforcement of this part by the Labor Commissioner.
(c) The annual employer registration renewal fee specified in
paragraph (1) of subdivision (c) 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.
SEC. 4. 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.