BILL NUMBER: AB 350 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Solorio
FEBRUARY 10, 2011
An act to amend Sections 1060, 1061, and 1064 of, and to amend the
heading of Chapter 4.5 (commencing with Section 1060) of Part 3 of
Division 2 of the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 350, as introduced, Solorio. Displaced Janitor Opportunity Act.
Existing law, the Displaced Janitor Opportunity Act, requires
contractors and subcontractors, that are awarded contracts or
subcontracts by an awarding authority to provide janitorial or
building maintenance services at a particular job site or sites, to
retain, for a period of 60 days, certain employees who were employed
at that site by the previous contractor or subcontractor. The act
requires the successor contractors and subcontractors to offer
continued employment to those employees retained for the 60-day
period if their performance during that 60-day period is
satisfactory. The act authorizes an employee who was not offered
employment or who has been discharged in violation of these
provisions by a successor contractor or successor subcontractor, or
an agent of the employee, to bring an action against a successor
contractor or successor subcontractor in any superior court of the
state having jurisdiction over the successor contractor or successor
subcontractor, as specified.
This bill would rename the act the Displaced Property Service
Employee Opportunity Act and make the provisions of the act
applicable to property services, which would include licensed
security, as defined, landscape, window cleaning, and food cafeteria
services in addition to janitorial and building maintenance services.
The bill would extend the 60-day period in the act to 90 days. The
bill also would make conforming changes.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The heading of Chapter 4.5 (commencing with Section
1060) of Part 3 of Division 2 of the Labor Code is amended to read:
CHAPTER 4.5. DISPLACED JANITOR
PROPERTY SERVICE EMPLOYEE OPPORTUNITY ACT
SEC. 2. Section 1060 of the Labor Code is amended to read:
1060. The following definitions shall apply throughout this
chapter:
(a) "Awarding authority" means any person that awards or otherwise
enters into contracts for janitorial or building
maintenance property services performed within
the State of California, including any subcontracts for
janitorial or building maintenance those
services.
(b) "Contractor" means any person that employs 25 or more
individuals and that enters into a property service
contract with the awarding authority.
(c) "Employee" means any person employed as a property
service employee of a contractor or subcontractor who works at least
15 hours per week and whose primary place of employment is in the
State of California under a contract to provide janitorial
or building maintenance property services.
"Employee" does not include a person who is a managerial,
supervisory, or confidential employee, including those employees who
would be so defined under the federal Fair Labor Standards Act.
(d) "Person" means any individual, proprietorship, partnership,
joint venture, corporation, limited liability company, trust,
association, or other entity that may employ individuals or enter
into contracts.
(e) "Property service" means janitorial, building maintenance,
licensed security, landscape, window cleaning, or food cafeteria
services. For purposes of this subdivision, "licensed security
service" means service rendered by a person who is registered as a
security guard pursuant to Chapter 11.5 (commencing with Section
7580) of Division 3 of the Business and Professions Code.
(e) "Service
(f) "Property service contract"
means any contract that has the principal purpose of providing
property services through the use of property
service employees.
(g) "Subcontractor" means any person who is not an
employee who enters into a contract with a contractor to assist the
contractor in performing a property service contract.
(g)
(h) "Successor property service contract"
means a property service contract for the performance of
essentially the same services as were previously performed pursuant
to a different property service contract at the same
facility that terminated within the previous 30 days. A property
service contract entered into more than 30 days after the
termination of a predecessor property service contract
shall be considered a "successor property service contract"
if its execution was delayed for the purpose of avoiding application
of this chapter.
SEC. 3. Section 1061 of the Labor Code is amended to read:
1061. (a) (1) If an awarding authority notifies a contractor that
the property service contract between the awarding
authority and the contractor has been terminated or will be
terminated, the awarding authority shall indicate in that
notification whether a successor property service contract
has been or will be awarded in its place and, if so, shall identify
the name and address of the successor contractor. The terminated
contractor shall, within three working days after receiving that
notification, provide to the successor contractor identified by the
awarding authority, the name, date of hire, and job classification of
each employee employed at the site or sites covered by the
terminated property service contract at the time of the
contract termination.
(2) If the terminated contractor has not learned the identity of
the successor contractor, if any, the terminated contractor shall
provide that information to the awarding authority, which shall be
responsible for providing that information to the successor
contractor as soon as that contractor has been selected.
(3) The requirements of this section shall be equally applicable
to all subcontractors of a terminated contractor.
(b) (1) A successor contractor or successor subcontractor shall
retain, for a 60-day 90-day transition
employment period, employees who have been employed by the terminated
contractor or its subcontractors, if any, for the preceding four
months or longer at the site or sites covered by the successor
service contract unless the successor contractor or successor
subcontractor has reasonable and substantiated cause not to hire a
particular employee based on that employee's performance or conduct
while working under the terminated contract. This requirement shall
be stated by awarding authorities in all initial bid packages that
are governed by this chapter.
(2) The successor contractor or successor subcontractor shall make
a written offer of employment to each employee, as required by this
section, in the employee's primary language or another language in
which the employee is literate. That offer shall state the time
within which the employee must accept that offer, but in no case may
that time be less than 10 days. Nothing in this section requires the
successor contractor or successor subcontractor to pay the same wages
or offer the same benefits as were provided by the prior contractor
or prior subcontractor.
(3) If at any time the successor contractor or successor
subcontractor determines that fewer employees are needed to perform
services under the successor property service contract or
successor subcontract than were required by the terminated contractor
under the terminated contract or terminated subcontract, the
successor contractor or successor subcontractor shall retain
employees by seniority within the job classification.
(c) The successor contractor or successor subcontractor, upon
commencing service under the successor property service
contract, shall provide a list of its employees and a list of
employees of its subcontractors providing property
services at the site or sites covered under that contract to the
awarding authority. These lists shall indicate which of these
employees were employed at the site or sites by the terminated
contractor or terminated subcontractor. The successor contractor or
successor subcontractor shall also provide a list of any of the
terminated contractor's employees who were not retained either by the
successor contractor or successor subcontractor, stating the reason
these employees were not retained.
(d) During the 60-day 90-day
transition employment period, the successor contractor or successor
subcontractor shall maintain a preferential hiring list of eligible
covered employees not retained by the successor contractor or
successor subcontractor from which the successor contractor or
successor subcontractor shall hire additional employees until such
time as all of the terminated contractor's or terminated
subcontractor's employees have been offered employment with the
successor contractor or successor subcontractor.
(e) During the initial 60-day 90-day
transition employment period, the successor contractor or successor
subcontractor shall not discharge without cause an employee retained
pursuant to this chapter. Cause shall be based only on the
performance or conduct of the particular employee.
(f) At the end of the 60-day 90-day
transition employment period, a successor contractor or successor
subcontractor shall provide a written performance evaluation to each
employee retained pursuant to this chapter. If the employee's
performance during that 60-day 90-day
period is satisfactory, the successor contractor or successor
subcontractor shall offer the employee continued employment. Any
employment after the 60-day 90-day
transition employment period shall be at-will employment under which
the employee may be terminated without cause.
SEC. 4. Section 1064 of the Labor Code is amended to read:
1064. Nothing in this chapter shall prohibit a local government
agency from enacting ordinances relating to displaced
janitors property service employees that impose
greater standards than, or establish additional
enforcement provisions in addition to, those prescribed by
this chapter.