BILL NUMBER: AB 1978 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 19, 2016
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, workers 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 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 every employer subject to its provisions to
keep accurate records of specific information regarding employees
for 3 years. The bill would require the division to enforce its
provisions and would authorize the division to adopt any regulations
necessary to carry out the provisions of the bill.
The bill would require every employer, effective July 1, 2018, to
register annually with the Labor Commissioner in accordance with
prescribed procedures. The bill would prohibit an employer from
conducting any business without registration as required by the bill
and would authorize the commissioner to revoke a registration under
certain circumstances. The bill would set application and renewal
fees for registration.
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 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.
application. The bill would prohibit the
division from 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, commissioner to maintain on the
commissioner's department's Internet
Web site a regularly updated, searchable database of
registered employers, and, on and after July 1, 2019, a searchable
public database regarding the
compliance and enforcement activities of the department.
of registered property service employers.
The bill would require the division, by January 1, 2019, to
establish a biennial in-person sexual violence and harassment
prevention training requirement for employees and employers with the
assistance of a prescribed advisory committee to be convened by the
director. The bill would require employers, as of July 1, 2018, and
until the division establishes that training requirement, to provide
employees with a pamphlet of the Department of Fair Employment and
Housing on sexual harassment.
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 civil fines for specific violations
of its provisions and vest in the commission the exclusive authority
to enforce the civil fine provisions. 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, Labor Enforcement
and Compliance Fund and make would
direct that the moneys in the fund from those fees and
fines be 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.
division.
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 no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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
1420. 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 Service Contract Act Directory of Occupations maintained by the
United State Department of Labor.
(2) "Covered worker" 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 this part that is not expired or revoked.
(c) "Department" means the Department of Industrial Relations.
(d) "Director" means the Director of Industrial Relations.
(e) (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 equipment, supervisors, and
workforce to offer substantially the same services to substantially
the same clients as a predecessor employer, unless the employer
maintains the same workforce pursuant to Chapter 4.5 (commencing with
Section 1060) of Part 3. In addition, 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 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) "Commissioner" means the Labor Commissioner of the Division of
Labor Standards Enforcement of the department.
(g) "Supervisor" has the same meaning as in subdivision (t) of
Section 12926 of the Government Code.
1421. Every employer shall keep accurate records for three years,
showing all of the following:
(a) The names and addresses of all employees engaged in rendering
actual services for any business of the employer.
(b) The hours worked daily by each employee, including the times
the employee begins and ends each work period.
(c) The wage and wage rate paid each payroll period.
(d) The age of all minor employees.
(e) Any other conditions of employment.
1422. The Division of Labor Standards Enforcement shall enforce
this part. The commissioner may adopt any regulations necessary to
carry out this part.
1423. Effective July 1, 2018, every employer shall register with
the commissioner annually.
1424. When a certificate of current and valid registration is
originally issued or renewed under this part, the Division of Labor
Standards Enforcement shall provide related and supplemental
information to the registrant regarding business administration and
applicable labor laws. As of July 1, 2018, employers covered by this
part shall provide all covered workers a copy of the Department of
Fair Employment and Housing pamphlet DFEH-185, entitled "Sexual
Harassment," until the sexual violence and harassment prevention
training requirement is established pursuant to Section 1429.5.
1425. Proof of current and valid registration shall be by an
official Division of Labor Standards Enforcement registration form.
1426. At least 60 days prior to the expiration of each registrant'
s registration, the Division of Labor Standards Enforcement shall
send a renewal notice to the last known address of the registrant.
However, omission of the Division of Labor Standards Enforcement to
provide the renewal notice in accordance with this section shall not
excuse a registrant 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
Division of Labor Standards Enforcement to any legal liability.
1427. The Division of Labor Standards Enforcement shall collect
from each employer an initial nonrefundable application fee of five
hundred dollars ($500), and an annual fee of five hundred dollars
($500) on the anniversary date of initial application, and may
periodically adjust the registration fee in an amount sufficient to
fund all direct and indirect costs to administer and enforce this
part.
1428. An employer shall not conduct any business without
complying with the registration requirements of this part. The
commissioner may revoke a registration if he or she finds an employer
to be out of compliance with any requirement of this part or to have
failed to satisfy any of the conditions of Section 1429.
1429. The Division of Labor Standards Enforcement shall not
approve the registration of any employer until all of the following
conditions are satisfied:
(a) The employer has executed a written application, in a form
prescribed by the commissioner and subscribed and sworn to by the
employer containing the following:
(1) The name of the business entity and, if applicable, its
fictitious or "doing business as" name.
(2) The form of the business entity and, if a corporation, all of
the following:
(A) The date of incorporation.
(B) 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.
(3) The federal employer identification number (FEIN) and the
state employer identification number (SEIN) of the business.
(4) The address of the business and the telephone number and, if
applicable, the addresses and telephone numbers of any branch
locations.
(5) Whether the application is for a new or renewal registration
and, if the application is for a renewal, the prior registration
number.
(6) The names, residential addresses, telephone numbers, and
social security numbers of the following persons:
(A) All corporate officers, if the business entity is a
corporation.
(B) All persons exercising management responsibility in the
applicant's office, regardless of form of business entity.
(C) All persons, except bona fide employees on regular salaries,
who have a financial interest of 10 percent or more in the business,
regardless of the form of business entity, and the actual percent
owned by each of those persons.
(7) The policy number, effective date, expiration date, and name
and address of the carrier of the applicant business' current workers'
compensation coverage.
(8) (A) Whether the employer and any persons named in response to
subparagraph (A), (B), or (C) of paragraph (6) presently:
(i) Owe any unpaid wages.
(ii) Have unpaid judgments outstanding.
(iii) Have any liens or suits pending in court against himself or
herself.
(iv) Owe payroll taxes, or personal, partnership, or corporate
income taxes, Social Security taxes, or disability insurance.
(B) An applicant who answers affirmatively to any item described
in subparagraph (A) shall provide, as part of the application,
additional information on the unpaid amounts, including the name and
address of the party owed, the amount owed, and any existing payment
arrangements.
(9) (A) Whether the employer and any persons named in response to
subparagraph (A), (B), or (C) of paragraph (6) have ever been cited
or assessed any penalty for violating any provision of this code.
(B) An applicant who answers affirmatively to any item described
in subparagraph (A) shall provide additional information, as part of
the application, on the date, nature of citation, amount of penalties
assessed for each citation, and the disposition of the citation, if
any. The application shall describe any appeal filed. If the citation
was not appealed, or if it was upheld on appeal, the applicant shall
state whether the penalty assessment was paid.
(10) Effective January 1, 2020, all new applications for
registration and renewal of registration shall complete the sexual
violence and harassment prevention training requirements prescribed
by the division and developed pursuant to Section 1429.5.
(11) Such other information as the commissioner requires for the
administration and enforcement of this part.
(b) The employer has paid a registration fee to the Division of
Labor Standards Enforcement pursuant to Section 1427.
(c) Notwithstanding any other law, violation of this section shall
not be a crime.
1429.5. The Division of Labor Standards Enforcement shall
establish a biennial in-person sexual violence and harassment
prevention training requirement for employees and employers covered
by this part by January 1, 2019. To assist in developing these
standards, the director shall convene an advisory committee to
recommend requirements for a sexual harassment prevention training
program. The advisory committee shall be composed of representatives
of the Division of Labor Standards Enforcement, the Division of
Occupational Safety and Health, and the Department of Fair Employment
and Housing, and shall also include representatives from a
recognized or certified collective bargaining agent that represents
janitorial workers, employers, labor-management groups in the
janitorial industry, sexual assault victims advocacy groups, and
other related subject matter experts. The director shall convene the
advisory committee no later than July 1, 2017. The advisory committee
shall consider the requirements of Section 12950.1 of the Government
Code when developing the recommended standard. The Division of Labor
Standards Enforcement shall propose the requirements for the sexual
violence and harassment prevention training requirement no later than
January 1, 2018.
1430. The Division of Labor Standards Enforcement shall not
register or renew the registration of an employer in any of the
following circumstances:
(a) The employer has not fully satisfied any final judgment for
unpaid wages due to an employee or former employee of a business for
which the employer is required to register under this chapter.
(b) The employer has failed to remit the proper amount of
contributions required by the Unemployment Insurance Code or the
Employment Development Department has made an assessment for those
unpaid contributions against the employer that has become final and
the employer has not fully paid the amount of delinquency for those
unpaid contributions.
(c) The employer has failed to remit the amount of Social Security
and Medicare tax contributions required by the Federal Insurance
Contributions Act (FICA) to the Internal Revenue Service and the
employer has not fully paid the amount or delinquency for those
unpaid contributions.
1431. The commissioner shall maintain a public database of
property service employers, on the Internet Web site of the
department, including the name, address, registration number, and
effective dates of registration.
1432. (a) An employer who fails to register pursuant to Section
1423 is subject to a civil fine of one hundred dollars ($100) for
each calendar day that the employer is unregistered, not to exceed
ten thousand dollars ($10,000).
(b) Any person or entity that contracts with an employer who lacks
a current and valid registration, as displayed on the online
registration database at the time the contract is executed, extended,
renewed, or modified, under this part on the date the person or
entity enters into or renews a contract or subcontract for janitorial
services with the employer is subject to a civil fine of not less
than two thousand dollars ($2,000) nor more than ten thousand dollars
($10,000) in the case of a first violation, and a civil fine of not
less than ten thousand dollars ($10,000) nor more than twenty-five
thousand dollars ($25,000) for a subsequent violation.
(c) Notwithstanding any other provision of law, the authority to
enforce this section is vested exclusively with the commissioner. The
procedures for issuing, contesting, and enforcing judgments for
citations or civil penalties issued by the commissioner shall be the
same as those set forth in Section 1197.1.
1433. (a) All registration fees collected pursuant to Section
1427, all civil fines collected pursuant to Section 1432, and any
other moneys as are designated by statute or order shall be deposited
in the Labor Enforcement and Compliance Fund.
(b) Moneys deposited in the fund pursuant to Section 1427 and
Section 1432 shall be used only for the following purposes:
(1) The reasonable costs of administering the registration of
janitorial contractors pursuant to this part by the Division of Labor
Standards and Enforcement.
(2) The costs and obligations associated with the administration
and enforcement of this part by the Division of Labor Standards and
Enforcement.
(c) The annual employer registration renewal fee specified in of
Section 1427, and any adjusted application renewal fee, shall be set
in amounts that are sufficient to support the direct costs and a
reasonable percentage attributable to the indirect costs of the
division for administering this part.
1434. A successor employer is liable for any wages and penalties
its predecessor employer owes to any of the predecessor employer's
former employee or employees, if the successor employer meets any of
the following criteria:
(a) Uses substantially the same workforce to offer substantially
the same services as the predecessor employer. This factor does not
apply to employers who maintain the same workforce pursuant to
Chapter 4.5 (commencing with Section 1060) of Part 3.
(b) Shares in the ownership, management, control of the labor
relations, or interrelations of business operations with the
predecessor employer.
(c) Employs in a managerial capacity any person who directly or
indirectly controlled the wages, hours, or working conditions of the
affected employees of the predecessor employer.
(d) Is an immediate family member of any owner, partner, officer,
or director of the predecessor employer of any person who had a
financial interest in the predecessor employer. All matter
omitted in this version of the bill appears in the bill as amended in
the Assembly, June 22, 2016. (JR11)
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Digest-Pages 1 and 2. Text-Pages 3, 4, 5, 6, 7, 8, and 9.
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