BILL ANALYSIS Ó
AB 1978
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Date of Hearing: April 20, 2016
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 1978
(Gonzalez) - As Amended April 13, 2016
SUBJECT: Employment: property service workers
SUMMARY: Enacts a number of requirements related to the
janitorial industry. Specifically, this bill:
1)Defines "covered worker" to mean a janitor, including any
individual working, whether as an employee, independent
contractor, or a franchisee, as a janitor. If an individual's
work duties are predominantly those of a janitor, that person
shall be deemed as janitor for purposes of this bill.
2)Defines "employer" to mean any person or entity that employs
at least one employee and one or more covered workers and that
enters into contracts, subcontracts, or franchise agreements
to provide janitorial services.
Workplace Sexual Violence and Sexual Harassment
3)Requires the Department of Industrial Relations (DIR), no
later than July 1, 2017, to do all of the following:
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a) Develop worker and supervisor agendas, handouts,
facilitation guides, and other materials for a four-hour
training regarding sexual harassment, sexual violence, and
human trafficking that are appropriate for the janitorial
industry and the languages and literacy levels of covered
workers, as specified. DIR shall provide these materials
in all languages that are the language spoken at home of at
least 500 janitors who reside in the state, and shall
update these materials on or before July 1 of each year
b) Establish requirements that employers shall require all
covered workers and supervisors, to at least annually,
receive comprehensive, accurate and appropriate in-person
training lasting at least four hours regarding sexual
harassment and sexual assault that provides an opportunity
for interactive questions and answers, as specified.
c) Establish minimum qualification standards for trainers
who may deliver such training, including but not limited
to, a minimum of five (5) 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 such trainings.
d) Establish requirements for employers to maintain
accurate records of training, as specified.
e) Establish a toll-free hotline for the reporting of
complaints and incidents of workplace sexual harassment,
assault, and human trafficking.
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f) Require employers to post and display prominently a
notice that informs covered workers of their rights under
the sexual harassment and human trafficking laws, contain
examples of illegal employer conduct, provide the hotline
number and provide the contact information for local
resources to assist those who have experienced sexual
harassment and human trafficking.
g) Appoint an advisory group of stakeholders, including
representatives from a non-profit organization that
advocates for standards to protect workers in the
janitorial industry from workplace sexual harassment and
assault and from a labor organization that represents
covered workers.
h) Issue such regulations as are necessary to carry out
this bill.
4)Requires the Occupational Safety and Health Standards Board
(Standards Board), no later than July 1, 2017, to adopt
standards that require an employer to adopt a workplace sexual
violence and sexual harassment prevention plan, as a part of
its injury and illness prevention plan, to protect covered
workers from sexual violence and harassment, and that includes
specified elements.
5)Provides that this bill shall not 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, nor shall it be interpreted to
preclude the Standards Board from adopting standards that
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require an employer subject to this bill, 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 bill.
Registration of Janitorial Contractors
6)Provides that on and after January 1, 2018, no employer may
conduct any janitorial business without a valid registration
and all employers must be registered with DIR.
7)Provides that, in order to qualify for a certificate of
registration or renewal, an employer shall:
a) Beginning July 1, 2017, register with DIR and pay an
initial application fee of $1,000 and an annual renewal fee
of $1,000.
b) Execute a written application, sworn to by the employer
under penalty of perjury, that contains specified
information.
c) Provide evidence, disclosures under penalty of perjury,
or releases as are necessary to establish specified
information.
d) Designate a qualifying individual to take a written
examination that demonstrates an essential degree of
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knowledge of the current state laws and regulations that
apply to employers, as specified. To successfully complete
the examination, the qualifying individual must correctly
answer at least 85 percent of the questions, and the
examination may only be taken a maximum of three times per
calendar year.
8)Establishes specified posting and recordkeeping requirements
for covered employers.
9)Provides that DIR shall not grant registration or renewal of
registration to specified employers, including to any employer
who has a record of serious, repeated, willful or pervasive
violations of specified laws, including any covered successor
employer, as defined.
10)Authorizes DIR to revoke, suspend, or place a registration on
probation if specified requirements are met.
11)Requires DIR to establish a Property Services Compliance Unit
to enforce the requirements of this bill.
12)Provides that whenever an employer has a record of serious,
willful or pervasive violations of the laws or has violated
the provisions of this bill, DIR may seek to negotiate and
enter into a labor compliance agreement with the employer,
including appropriate remedial measures, compliance
assistance, and any steps to resolve issues to increase
compliance with covered laws, as specified. Covered affected
workers, collective bargaining agents, and labor-management
cooperation committees shall have an opportunity to
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participate in the development and monitoring of such labor
compliance agreements.
13)Establishes specified civil penalties.
14)Authorizes the Labor Commissioner, as specified, to issue a
stop order against an employer that is conducting business
without a valid registration.
15)Requires DIR to maintain on its website an updated list of
known janitorial employers, and to select employers as audit
subjects for the purpose of determining compliance with this
bill, as specified, and shall select each employer on this
list at least once every five years.
16)Establishes specified criminal penalties for an employer that
conducts any janitorial business after its registration has
been suspended, revoked, or denied reissuance, and for an
employer, director, officer, or managing agent who fails to
observe a stop order.
17)Provides that, after January 1, 2018, any person or entity
that hires an employer that does not have a valid registration
shall share with that employer all civil responsibility and
civil liability for all violations of specified laws dealing
with employment discrimination, harassment, and other matters.
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18)Establishes specified whistleblower and anti-retaliation
protections for individuals.
19)Establishes the State Janitorial Contractor Registration Fund
(Fund), to be funded by registration fees and civil penalties.
Moneys in the Fund shall only be used for administering the
registration of janitorial contractors and the administration
and enforcement of the requirements of this bill.
20)Requires DIR, by July 1, 2017, to develop standards and
procedures for:
a) The determination whether administrative determinations,
arbitral awards or decisions, or civil or criminal
judgments are for serious, repeated, willful or pervasive
violations, as specified.
b) A covered worker, a collective bargaining agent, or a
labor-management cooperation committee to file a complaint
regarding an employer's failure to comply with the
requirements of this bill, and for DIR to investigate and
issue a written determination regarding each complaint.
c) Other specified matters.
Online Posting of Janitorial Contractor Registry and Database
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21)Provides that, after February 1, 2018, DIR's website shall
include a regularly updated, searchable database of registered
covered employers. The database will have the capability to
search all data for at least the past ten years, and will
include specified information.
22)Provides that after July 1, 2018, DIR's website shall include
a searchable database regarding its compliance and enforcement
activities. The database will have the capability to search
all data for at least the past ten years, and will include
specified information.
23)Contains related legislative findings, declarations and
statements of intent.
FISCAL EFFECT: Unknown
COMMENTS: This bill establishes various requirements for the
janitorial industry, including a registration requirement and
protections against workplace sexual violence and harassment.
The bill contains a number of legislative findings and
declarations that set forth the intent of the bill, including
the following:
"Workers are widely victimized by wage theft, sexual
harassment and assault, failure to provide workers
compensation insurance and other low road practices
perpetrated by unscrupulous employers that fail to comply
with existing labor standards laws."
"While some high-road employers comply with labor
standards laws and invest in training and retaining a more
skilled workforce, these employers are undercut by low-road
competitors in a continual race to the bottom."
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"It is in the public interest that employers compete
primarily on the basis of quality, efficiency and
innovation, and not through a race to the bottom that
perpetuates substandard working conditions and lack of
compliance with labor standards laws."
"Workers in janitorial occupations often work alone at
night, making them vulnerable to sexual violence and
harassment while on the job, a condition that is
exacerbated by low pay, low job mobility and poor training.
Adopting standards to protect workers from sexual violence
and sexual harassment must be an obligation of all
janitorial industry employers."
According to the author, among the purpose of this bill is to
lower instances of sexual harassment, sexual violence, and human
trafficking in the property services industry, where it is
particularly prevalent.
The author argues that, most janitors and security officers work
alone in empty buildings at night. This isolation is a major
risk factor for sexual harassment and assault. Employers in the
property services industry typically service a large number of
worksites. As a result, janitors and security officers
generally do not have day-to-day contact with anyone
representing the employer, other than the supervisor who may be
harassing them. Being isolated from co-workers and the public
reduces the likelihood that anyone will intervene or serve as
witnesses and allows supervisors to exert greater control over
workers. The author cites a survey which reported that 85
percent of workers who were raped in the workplace reported
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working alone.
Background on Workplace Violence Prevalence Among the Contracted
& Subcontracted Property Services Workforce
According to worker advocates, few employers in the low-wage
economy are equipped to prevent or stop harassment. Sexual
harassment policies are not in place or are inadequate or
unenforced. Workers may not know to whom they can report
harassment, even if they know harassment is illegal.
Supervisors are often not trained on how to respond and end up
doing nothing. Other employers dismiss claims as problems that
should be handled by the criminal justice system. Even worse,
workers are frequently retaliated against after reporting
harassment; almost half of women who complain of sexual
harassment are retaliated against in some way
The top concern of many Latina workers is "keeping their jobs,
even at the expense of their health or accepting unfair
treatment at work"; the threat of retaliation keeps workers from
reporting and increases the harassers' confidence that they will
not be caught.
A recent UC Berkeley Labor Center report<1>, titled "Race to the
Bottom: How Low-Road Subcontracting Affects Working Conditions
in California's Property Services Industry," reported on the
conditions faced by property service workers and shows that
workers in this industry face distinct challenges. Issues of
wage theft, misclassification, sexual harassment and sexual
violence are just some of the challenges facing these workers.
Much of this is driven by the fact that this is a subcontracted
---------------------------
<1> UC Berkeley Labor Center report, March 2016.
http://laborcenter.berkeley.edu/pdf/2016/Race-to-the-Bottom.pdf
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industry with a high percentage of labor costs, which creates an
incentive to cut corners in order to win contracts. The report
noted a survey which found that 32 percent of workers in the
property services industry were paid less than minimum wage, and
80 percent were not paid the legally required overtime when they
worked more than 40 hours a week. The same survey also found
that Janitors and security officers are disproportionately
workers of color and immigrants; more than 70 percent of
contracted janitors were born outside the U.S.
The report cited specific conditions in the property services
industry which make workers more vulnerable to sexual
harassment, sexual violence, and wage theft. Among those
factors, isolation in particular increases the vulnerability to
sexual assault. Additionally, the report found that other
factors such as gender, ethnicity, and immigration status all
make workers in the property services industry particularly
vulnerable. The threat of retaliation makes it less likely that
a worker would report sexual harassment, sexual assault, wage
theft, or other workplace misconduct.
"A boom in companies trying to cut costs by contracting out
janitorial and security jobs has led to large pay disparities
between workers doing the same jobs," according to the UC
Berkeley report as cited by the Los Angeles Times<2>? "Many
contractors, especially smaller companies, also do not pay
overtime or even minimum wage, Sara Hinkley, the report's
coauthor said. They often misclassify workers as independent
contractors, thereby avoiding making Social Security
contributions and sometimes even pocketing taxes that would
normally be deducted from paychecks."
"Janitors who work for California contractors earn on average
---------------------------
<2>
http://www.latimes.com/business/la-fi-contract-janitors-story.htm
l
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$10.31 an hour, or 20% less than janitors who work directly for
a company that uses their services", according to the report,
prepared by the university's Center for Labor Research and
Education
In June of 2015, Reveal News wrote an investigative piece<3>
titled, "Under cover of darkness female janitors face rape and
assault." The piece states that, "In Massachusetts, seven
female janitors cleaning universities and office buildings for a
company called UGL Unicco sued their employer after they said
their supervisor touched and harassed them. The case settled in
2002 for $1 million; the company did not admit wrongdoing.
Janitors have sued the company five times in federal courts
since then. In Minnesota, a janitor filed a lawsuit in 2009
that claimed she was raped repeatedly by her boss while on the
clock cleaning a shopping mall. When it got notice of her
complaint, cleaning company Service Management Systems asked the
accused manager to gather evidence for the case. The company
settled the case and later said this was against its protocol.
The janitor now works uneventfully for ABM."
The piece continues and tells several deeply troubling stories
of pervasive workplace fear and violence. "Operations like
these do the thankless work of keeping everyone's office space
clean and humming. The very fact that their workers are
supposed to remain unseen in an industry that takes all comers
mean that when it comes to sexual violence on the job, almost
everything that could go wrong does."
Arguments in Support
---------------------------
<3>
https://www.revealnews.org/article/under-cover-of-darkness-female
-janitors-face-rape-and-assault/
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This bill is sponsored by SEIU California.
They and other supporters of the bill argue that a recent report
by the UC Berkeley Labor Center reported on the conditions in
the property services industry. The report noted a survey which
found that 32 percent of workers in the property services
industry were paid less than minimum wage, and 80 percent were
not paid the legally required overtime when they worked more
than 40 hours a week. The same survey also found that janitors
and security officers are disproportionately workers of color
and immigrants; more than 70 percent of contracted janitors were
born outside the U.S. The report also cited specific conditions
in the property services industry which make workers more
vulnerable to sexual harassment, sexual violence, and wage
theft. Among those factors, isolation in particular increases
the vulnerability to sexual assault.
Supporters state that it is clear that the property services
industry is in need of regulation in order to protect vulnerable
workers. In fact, there are five main industries in California
operate almost exclusively through contracting and
subcontracting, including construction, garment manufacturing,
farm labor, long-term care, and property services. Not
coincidentally, basic labor violations plague these industries;
labor scholars and enforcement agencies continually observe that
contracted labor frustrates wage enforcement. Contracting
disrupts the direct relationship between employers and
employees. Workers hired by contractors and subcontractors are
often ignorant of the identity of, or have little access to,
their true employer.
Among these five industries, all have a registry or licensing,
except for property services. And the laws regulating farm
labor contractors require mandatory sexual harassment training
for both employees and supervisors. In addition to these
industries, the car wash industry also requires employers to
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register with the state and pay a bond.
They argue that the state has acted to regulate other industries
with similar risk factors, similar worker populations, and
similar contracted labor. They believe the time has come to
similarly regulate the property services industry.
Arguments in Opposition
The California Chamber of Commerce (CalChamber) opposes this
bill unless amended. They state that the business community has
repeatedly participated in efforts to address the underground
economy. Employers who intentionally disregard the law not only
hurt employees, but other businesses in the industry who are
trying to comply with the myriad of California labor and
employment laws, tax laws, licensing requirements, etc.
However, they state that this bill proposes unprecedented
standards that simply far exceed the need to address issues in
the underground economy. They are concerned that some of the
provisions in this bill are so extreme, it will either: (1)
limit the participation of good acting businesses in the
industry; or, (2) encourage those unlawful actors to continue to
operate in the underground economy, as the cost of compliance is
too high.
They express particular concern that the provision providing for
joint liability for certain provisions of the law related to
discrimination and harassment are unprecedented and
inappropriate. They contend that there is no basis as to why a
business that contracts for janitorial services should be deemed
statutorily liable for all protections listed in this section of
the Government Code when there is absolutely no way in which
that contractor can engage or force the janitorial company to
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comply with provisions of the law. Moreover, they argue that
this statutory mandate ignores and disrupts current law that
already provides liability for a business who is acting as a
"joint employer."
CalChamber also argues that the enforcement mechanism and
penalties proposed in this bill are overly punitive and
unprecedented. While they appreciate the intent of this bill to
create a disincentive for unlawful behavior, such a list of
penalties and enforcement will likely have the opposite impact
of discouraging good actor businesses from engaging in the
industry and drive bad actor businesses further into the
underground economy. This list of proposed penalties and
enforcement is also entirely unprecedented for any other
industry engaged in the underground economy.
Finally, CalChamber argues that several of the other provisions
of this bill are overbroad, unprecedented, and too onerous.
REGISTERED SUPPORT / OPPOSITION:
Support
CLEAN Carwash Campaign
Koreatown Immigrant Workers Alliance
Maintenance Cooperation Trust Fund
SEIU California (sponsor)
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UFCW Western States Council
Wage Justice Center
Opposition
California Chamber of Commerce
Analysis Prepared by:Taylor Jackson/Ben Ebbink / L. & E. / (916)
319-2091