BILL ANALYSIS �
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Date of Hearing: April 13, 2011
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 350 (Solorio) - As Introduced: February 10, 2011
SUBJECT : Displaced Janitor Opportunity Act.
SUMMARY : Expands provisions of existing law that require
janitorial or building maintenance service contractors to retain
employees for 60 days following the awarding of a contract.
Specifically, this bill :
1)Renames the law the "Displaced Property Service Employee
Opportunity Act."
2)Expands the employee retention and related provisions of
existing law applicable to janitorial and building maintenance
service contracts to contracts for "property services."
3)Defines "property services" to include janitorial, building
maintenance, licensed security, landscape, window cleaning, or
food cafeteria services.
4)Expands the employee retention provisions from 60 to 90 days.
EXISTING LAW requires contractors and subcontractors that are
awarded janitorial or building maintenance services contracts to
retain specified employees of the prior contractor for a period
of 60 days.
FISCAL EFFECT : Unknown
COMMENTS : Under current law, a successor contractor or
subcontractor providing janitorial or building maintenance
service is required, for a 60-day transition employment period,
to retain 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. This requirement does not apply if 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.
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Existing law also provides that, during the initial 60-day
transition employment period, the successor contractor or
successor subcontractor shall not discharge without cause an
retained employee. Cause shall be based only on the performance
or conduct of the particular employee.
At the end of the 60-day transition employment period, existing
law requires a successor contractor or successor subcontractor
to provide a written performance evaluation to each retained
employee. If the employee's performance during that 60-day
period is satisfactory, the successor contractor or successor
subcontractor is required to offer the employee continued
employment. Any employment after the 60-day transition
employment period shall be at-will employment under which the
employee may be terminated without cause.
These provisions were enacted pursuant to SB 20 (Alarc�n) of
2001.
STATUTORY CHANGES PROPOSED BY THIS BILL
This bill proposes to amend current law to expand coverage of
these employee retention requirements to other industries.
First, the bill proposes to change the name of the current law
to law the "Displaced Property Service Employee Opportunity
Act." Second, the bill expands the employee retention and
related provisions of current law to include contracts for
licensed security, landscape, window cleaning, and food
cafeteria services. Finally, the bill expands the employee
retention requirements from 60 to 90 days.
ARGUMENTS IN SUPPORT :
According to the author's office, contracted out property
service workers, such as building maintenance, licensed
security, landscape, window cleaning and food cafeteria
personnel, can lose their jobs with little - or no warning -
when the property manager decides to award the service contract
to another contractor. California continues to face record high
unemployment levels, still in excess of 12 percent in many
communities, and the economy is not expected to rebound for
years. Property service workers who have diligently maintained
and secured business properties should be afforded a measure of
job stability when contractors are changed, through no fault of
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their own. Taking into consideration the dire economic
situation facing California, extending the retention period from
60 to 90 days will allow property service workers to maintain
their jobs for an additional 30 days.
Supporters argue that when a building services contract changes
hands, there is often little regard for the workers who have
been doing these jobs, sometimes for decades. They contend that
in this economy it is particularly inhumane to treat trained and
experiences workers as "disposable." Moreover, they argue that
not only does this bill protect workers and increase economic
stability, but it will also improve security, maintenance and
food safety. Worker retention means a higher quality of
services from a capable and experienced workforce. They
conclude that this benefits the community as a whole while
keeping families from failing into poverty.
ARGUMENTS IN OPPOSITION :
Opponents contend that this bill is designed to ensure that a
union who has been elected as the bargaining representative
through the proper procedures for the prior contractor, will
remain the bargaining representative for the subsequent
employer. Since this bill mandates that subsequent employers
hire the predecessor's employees, it would provide automatic
protection to the incumbent union to maintain its status as the
bargaining representative, thus forcing all
contractors/employers of "property services" to be union
employers. Opponents believe the decision of whether or not to
have a union in the workplace should be left to the employers
and employees, after following the proper procedures outlined by
the National Labor Relations Act.
Opponents also argue that this bill constitutes a government
mandate that completely usurps the employers' discretion in who
to hire in its workforce and precludes the subsequent employer
from conducting any pre-hiring background checks or interviews
to determine if the employees of the prior contractor/employer
are individuals who meet the unique and specific criteria of the
subsequent employer. This bill basically eliminates any
distinction from one contractor to the next regarding the type
of workforce that contractor can deliver, thereby minimizing
competition amongst contractors. Additionally, by limiting a
subsequent employer's ability to properly conduct background
checks of potential employees, it is setting up these subsequent
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employers for potential negligent hiring litigation.
The California Disability Services Association (CDSA) and its
members that provide employment services oppose this measure,
arguing that it will greatly limit the ability of people with
disabilities to secure employment. CDSA notes that many people
with developmental disabilities perform services such as
janitorial, landscaping, window cleaning and food cafeteria
services. CDSA states that if its members who may have
contracts are required to hire non-disabled workers under the
terms of this bill, they would simply be blocked from carrying
out their mission to increase employment opportunities for
persons with developmental disabilities. Moreover, they express
concern that this bill does not address how employment
opportunities for persons with disabilities are structured in
terms of support personnel and services, which creates a
logistical nightmare for successor contractors.
The California Landscape Contractors Association argues that,
while there may be some justification for assisting displaced
workers in other industries who report to a single property,
that is not the typical case with employees of landscape
services companies. For landscaping, the usual practice is for
employees to work in small crews that service multiple
properties for only a few hours each day. Consequently, they
contend that the loss of a single landscape services contract is
unlikely to result in any significant loss of employee income
and any rights established by this bill to temporary continued
employment with a successor contractor would be of little
practical benefit. Therefore, they oppose this bill unless
amended to remove landscape service contractors from the bill.
REGISTERED SUPPORT / OPPOSITION :
Support
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Labor Federation, AFL-CIO
California Official Court Reporters Association
California Teamsters Public Affairs Council
Engineers and Scientists of California
International Longshore and Warehouse Union
Professional and Technical Engineers, Local 21
Service Employees International Union
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UNITE HERE!
United Food and Commercial Workers, Western States Conference
Utility Workers Union of America, Local 132
Opposition
Apartment Association, California Southern Cities
Building Owners and Managers Association of California
California Apartment Association
California Association of Bed & Breakfast Inns
California Association of Realtors
California Attractions and Parks Association
California Business Properties Association
California Chamber of Commerce
California Disability Services Association
California Grocers Association
California Hotel & Lodging Association
California Independent Grocers Association
California Landscape Contractors Association
California Manufacturers & Technology Association
California Retailers Association
Commercial Real Estate Development Association, NAIOP of
California
International Council of Shopping Centers
PathPoint
San Francisco Association of REALTORS
Western Electrical Contractors Association
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091