BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 1978 Hearing Date: June 29,
2016
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|Author: |Gonzalez |
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|Version: |June 22, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Gideon L. Baum |
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Subject: Employment: property service workers
KEY ISSUE
Should the Legislature create a registration process for
janitorial employers and require sexual harassment and violence
prevention training for janitorial workers?
ANALYSIS
Existing law:
1) Prohibits an employer, labor organization, employment
agency, apprenticeship training program or any training
program leading to employment, from harassing an employee,
an applicant, an unpaid intern or volunteer, or a person
providing services pursuant to a contract by an employee.
(Government Code §12940(j))
2) Establishes the Displaced Janitor Opportunity Act, which
requires that a successor contractor retains employment of
the predecessor contractor's employees for a 60 day
transition period. (Labor Code §§1060-1065)
AB 1978 (Gonzalez) Page 2
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This bill creates the Property Services Workers Protection Act,
which seeks to protect janitorial employees from wage theft and
sexual harassment. Specifically, this bill would:
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 "covered 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. This includes
successor employers.
3)Contains related legislative findings, declarations and
statements of intent.
Workplace Sexual Violence and Sexual Harassment
4)Requires the Division of Labor Standards Enforcement (DLSE),
no later than January 1, 2018, to do all of the following:
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. DLSE shall provide these materials
in all languages that are the language spoken at home of at
AB 1978 (Gonzalez) Page 3
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least 2,000 janitors who reside in the state, and shall
update these materials annually.
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 three years of experience conducting adult
education with non-English speakers with a reading ability
at or below the fifth grade level in the language spoken at
home. 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) Require employers to post and display prominently a
notice, developed by the DLSE and posted on its website,
that informs covered workers of their rights under the
sexual harassment and human trafficking laws, contain
examples of illegal employer conduct, and provide the
contact information for local resources to assist those who
have experienced sexual harassment and human trafficking.
f) Appoint, along with the Division of Occupational Safety
and Health, an advisory group of stakeholders to assist
them in carrying out their respective responsibilities
under this bill. The advisory group must include
representatives from at least one nonprofit organization
AB 1978 (Gonzalez) Page 4
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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.
g) Issue such regulations as are necessary to carry out
this bill.
5)Requires the Occupational Safety and Health Standards Board,
no later than July 1, 2018, 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.
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 DLSE.
7)Provides that, in order to qualify for a certificate of
registration or renewal, an employer shall:
a) Beginning January 1, 2018, register with DLSE and pay an
initial application fee of $500 and an annual renewal fee
of $500.
b) Execute a written application, under penalty of perjury,
that contains specified information, including an oath that
the employer shall follow all applicable federal, state,
and local laws.
AB 1978 (Gonzalez) Page 5
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c) Provide evidence, disclosures, or releases under penalty
of perjury, as are necessary to establish specified
information, including proof of workers' compensation
coverage and if the employer is liable for any delinquent
liabilities, which includes unpaid wages and arbitration
awards due to sexual harassment, including interest, fines,
and penalties.
8)Establishes specified posting and recordkeeping requirements
for covered employers.
9)Provides that DLSE shall not grant registration or renewal of
registration to specified employers, including lacking
workers' compensation coverage, made false statements or has
not submitted the necessary application information, or has a
delinquent liability to the state or a worker.
10)Authorizes DLSE to revoke, suspend, or place a registration
on probation if specified requirements are met, including
failing to maintain a bond for payment of a delinquent
liability.
Enforcement
11)Requires DLSE to establish a Property Services Compliance
Unit to enforce the requirements of this bill.
12)Establishes civil penalties of $2,500 for failing to have a
current and valid registration or violating the provisions of
this act.
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13)Establishes additional civil penalties against any employer
that has been previously assessed civil penalties to an
additional penalty of one hundred dollars ($100) for each
calendar day that the employer conducts business in violation
of Act, not to exceed one hundred thousand dollars ($100,000).
14)Authorizes DLSE to issue a stop order against an employer
that is conducting business without a valid registration, and
establishes criminal penalties for an employer that fails to
observe a stop order.
15)Establishes the State Janitorial Contractor Registration
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.
16)Permits DLSE to audit employers in order to ensure compliance
with this Act.
Online Posting of Janitorial Contractor Registry and Database
17)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.
18)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
AB 1978 (Gonzalez) Page 7
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specified information.
Fair Employment and Housing Act (FEHA) Protections
19)Extends FEHA liability due to sexual harassment or violence
by a janitorial employer or supervisor to a person or entity
who contracts or subcontracts with a janitorial employer who
lacks a current or valid registration.
20)Creates a presumption that a person or entity that contracts
with a janitorial employer who has a current and valid
registration is NOT liable for a FEHA violation due to sexual
harassment or violence by a janitorial employer or supervisor
against a janitorial worker.
COMMENTS
1. Need for this bill?
In the past few years, worker advocates have reported
increased concern about the prevalence of workplace sexual
harassment and violence. Generally, these concerns have
focused on vulnerable groups of workers, such as was
documented by the PBS documentary "Rape in the Fields", which
dealt with sexual harassment and violence among female migrant
agricultural workers. AB 1978 seeks to address similar issues
among janitorial workers.
Specifically, the author and supporters cite a recent UC
Berkeley Labor Center report, which reported the following
findings:
Research statistics and in-depth interviews suggest that
women janitors are at risk of sexual harassment and assault
in what are often isolated working conditions.
Sexual harassment policies are not in place or are
inadequate or unenforced.
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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.
Janitors are disproportionately workers of color and
immigrants; 75 percent of contracted janitors were born
outside the U.S.
Additionally, the same report examined the issue of sexual
harassment and sexual violence in the workplace. The report
found that some of the conditions in the property services
industry increase the risk faced by property services workers.
The report found the following (from page 16-17):
Most janitors work alone in empty buildings at night. This
isolation is a major risk factor for sexual harassment and
assault. In a Washington state study, 85 percent of the 63
workers who were raped in the workplace were working alone
(Alexander, Franklin & Wolf 1994). Employers in the property
services industry typically service a large number of
worksites. As a result, janitors 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.
Being female, Latina, immigrant, and undocumented can make it
less likely that workers will report harassment due to the
fear of retaliation or lack of familiarity with their rights
or resources available to them (Human Rights Watch 2012).
Latinas may be less likely to report sexual assault than women
of other ethnicities (Arellano, Kuhn & Chavez 1997; Romero,
Wyatt, Loeb, Carmona & Solis 1999). In a recent survey, only
6.6 percent of Latinas who had been sexually victimized
reported it to the police (Cuevas & Sabina 2010). Workers who
are undocumented are even less likely to come forward (Ammar,
Orloff, Dutton & Aguilar-Hass 2005; Zadnik, Sabina & Cuevas
2016). The top concern of many Latina workers is "keeping
their jobs, even at the expense of their health or accepting
unfair treatment at work" (Eggerth, DeLaney, Flynn & Jacobson
2012). The threat of retaliation keeps workers from reporting
and increases the harassers' confidence that they will not be
caught (Montgomery 2016).
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AB 1978 seeks to address the challenges discussed in the
report by creating a sexual harassment and violence training
requirement for janitorial employers, require janitorial
employers to register in order to ensure compliance with these
requirements, and creates new penalties and criminal
violations in order to halt the operation of janitorial
employers who do not comply with these requirements.
2. Proponent Arguments :
The proponents note the findings of the recent report by the
UC Berkeley Labor Center reported on the conditions in the
property services industry. Specifically, the sponsor points
to the report's survey, which found that 32 percent of workers
in the property services industry were paid less than the
minimum wage, and that 80 percent of workers were not paid the
legally required overtime. Noting the report's finding that
the property service industry has specific risk factors that
make workers more vulnerable to sexual harassment and
violence, the proponents believe that additional workplace
protections are necessary to protect workers in the janitorial
industry. The proponents note that existing law already
provides a registration process for other high hazard
industries, such as farm labor contracting and garment
manufacturing. Proponents believe that, by combining a
registration process with sexual harassment and violence
training and posting requirements to notify workers of their
rights, AB 1978 will make significant progress in protecting
vulnerable workers from sexual harassment, sexual violence,
and other forms of exploitation.
3. Opponent Arguments :
The California Chamber of Commerce and other opponents have
taken an oppose unless amended position to AB 1978 (Gonzalez).
First, the opponents note that the author has addressed their
past concerns through amendments, and they appreciate the
author's efforts to work with them on these issues. However,
the opponents argue that AB 1978 includes other unprecedented
standards that exceed the need to address issues in the
underground economy, including penalties and suspension of a
company's registration for poster and notice violations as
well as stop orders. The opponents believe that the provisions
in AB 1978 are so extreme that it will encourage unlawful
actors to continue to participate in the underground economy,
AB 1978 (Gonzalez) Page 10
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as the cost of compliance is too high. Opponents note that
they are hopeful that they will be able to resolve these
outstanding concerns with the author.
4. Prior Legislation :
AB 350 (Solorio) of 2011 would have expanded the provisions of
existing law which requires janitorial or building maintenance
service contractors to retain employees for 60 days following
the awarding of a contract. AB 350 failed passaged on the
Senate Floor.
SUPPORT
Equal Rights Advocates (Co-Sponsor)
Service Employees International Union (Co-Sponsor)
Alliance San Diego
Black Community Clergy and Labor Alliance
Black Immigration Network
CA Domestic Workers Coalition
California Democratic Party - African American Caucus
California Immigrant Policy Center
California Employment Lawyers Association
California Labor Federation
Carecen
CHIRLA-Coalition for Humane Immigrant Rights
Clean Car Wash Campaign
Clergy and Laity United for Economic Justice (CLUE)
Creating Justice LA
East Bay Alliance for a Sustainable Economy
Faith Alliance for a Moral Economy
Holy Faith Episcopal Church
IDEPSCA
Jewish Labor Committee
LA County Federation of Labor
Los Angeles Airport Peace Officers Association
Los Angeles Alliance for a New Economy
Los Angeles Urban League
Methodist Federation for Social Action
Multi-Faith ACTION Coalition
National Action Network
National Action Network Los Angeles
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North County Immigration Task Force
Pacoima Beautiful
Peace Over Violence
Pilgrim United Church of Christ, Board of Social Justice
PODER
Restaurant Opportunities Center - LA
San Diego Immigrant Rights Consortium
San Francisco Living Wage Coalition
SEIU Local 99
Southern Christian Leadership Conference
The Row LA - Church Without Walls - Skid Row Ministries
Unitarian Universalist Justice Ministry of California
United Domestic Workers- AFSCME Local 3930
Us Organization
UURISE - Unitarian Universalist Refugee & Immigrant Services &
Education
Workers United Western States Regional Board
OPPOSITION
Building Owners and Managers Association
California Business Properties Association
California Chamber of Commerce
CAWA - Representing the Automotive Parts Industry
International Council of Shopping Centers
NAIOP - Commercial Real Estate Development Association
National Federation of Independent Business
Pacific Association of Building Service Contractors
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