BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 350|
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THIRD READING
Bill No: AB 350
Author: Solorio (D), et al.
Amended: 8/30/11 in Senate
Vote: 21
SENATE LABOR & INDUST. RELATIONS COMMITTEE : 5-1, 6/29/11
AYES: Lieu, DeSaulnier, Leno, Padilla, Yee
NOES: Wyland
NO VOTE RECORDED: Runner
SENATE APPROPRIATIONS COMMITTEE : 5-3, 8/22/11
AYES: Kehoe, Alquist, Lieu, Price, Steinberg
NOES: Walters, Emmerson, Runner
NO VOTE RECORDED: Pavley
ASSEMBLY FLOOR : 46-31, 5/31/11 - See last page for vote
SUBJECT : Displaced Janitor Opportunity Act
SOURCE : Service Employees International Union
DIGEST : This bill renames the Displaced Janitor
Opportunity Act as the Displayed Property Service Employee
Opportunity Act and make the provisions of the act
applicable to property services, which would consist of
licensed security, window cleaning, food cafeteria and
dietary services, janitorial services and cleaning related
or light building maintenance services, and excludes from
the definitions of contractor and subcontractor specified
types of food service providers.
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ANALYSIS : Existing law, the Displaced Janitor
Opportunity Act (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 renames the Displaced Janitor Opportunity Act as
the Displayed Property Service Employee Opportunity Act and
make the provisions of the act applicable to property
services, which would consist of licensed security, window
cleaning, food cafeteria and dietary services, janitorial
services and cleaning related or light building maintenance
services, and excludes from the definitions of contractor
and subcontractor specified types of food service
providers.
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. At the end of the 60-day
transition employment period, existing law requires a
successor contractor 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 is required to offer the employee
continued employment. Any employment after the 60-day
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transition employment period is at-will employment under
which the employee may be terminated without cause.
Prior Legislation
SB 20 (Alarcon), Chapter 795, Statutes of 2001, enacts the
Act which requires contractors and subcontractors that are
awarded contracts to provide janitorial or building
maintenance services to retain, for a period of 60 days,
certain employees who were employed at the site by the
previous contractor.
SB 1521 (Alarcon), 2003-04 Session, would have (1)
extended, from 60 to 90 days, the transition employment
period for retaining janitors, and would have (2) expanded
responsibility to building owners. The bill was vetoed by
the Governor Schwarzenegger. In his veto message the
Governor stated that "The current law already offers a
measure of protection for janitorial employees not afforded
to any employee in any other industry. Extending the
retention period another 30 days would not only create more
disparity with other industries, but it would also further
delay an employer from exercising his or her rights under
California's at-will employment doctrine."
SB 2850 (Ridley-Thomas), 2003-04 Session, would have
enacted the Private Security Service Assurance Act, which
would have required contractors awarded contracts to
provide private security to retain, for a period of 90
days, certain employees who were employed at that site by
the previous contractor. The provisions of the bill would
have mirrored the Act currently in law. It was vetoed by
the Governor Schwarzenegger. In his veto message the
Governor stated that, "In many cases, a new contractor will
call upon the knowledge and expertise of the existing
employees in order to provide that protection. This is
even more likely considering the amount of training
required for private security guards under current law.
Retaining current employees would not only provide the
contractor this expertise but also save the contractor the
costs of the training. A statutory mandate is not needed
for contractors to appreciate these incentives."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
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Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13 2013-14 Fund
Expansion of definition of Minor, if any,
increase in enforcement Special*
displaced employee activities
State contract restrictions No costs, to
likely minor new costs if Special** the
state assumes or re-bids a property
services contract
Department of General $10
Special**
Services contract information
* Labor Standards and Compliance Fund
** Service Revolving Account (General Fund and special
fund reimbursements)
SUPPORT : (Verified 8/30/11)
Service Employees International Union (source)
Alameda Labor Council, AFL-CIO
American Federation of State, County and Municipal
Employees, AFL-CIO
California Conference Board of the Amalgamated Transit
Union
California Conference of Machinists
California Labor Federation
California Official Court Reporters Association
California Teamsters Public Affairs Council
Central Labor Council of Contra Costa County
Engineers and Scientists of California
International Longshore and Warehouse Union
Orange County Labor Federation
Professional and Technical Engineers, Local 21
San Mateo Labor Council
UNITE HERE!
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United Food and Commercial Workers-Western States
Conference
Utility Workers Union of America, Local 132
OPPOSITION : (Verified 8/30/11)
Apartment Association of Greater Los Angeles
Apartment Association, California Southern Cities
Building Owners and Managers Association of California
California Apartment Association
California Association of Bed and Breakfast Inns
California Association of Licensed Security Agencies,
Guards and Associates
California Association of Realtors
California Attractions and Parks Association
California Business Properties Association
California Chamber of Commerce
California Grocers Association
California Hospital Association
California Hotel and Lodging Association
California Independent Grocers Association
California Landscape Contractors Association
California Manufacturers and Technology Association
California Retailers Association
California Travel Association
Commercial Real Estate Development Association, NAIOP of
California
Construction Industry Legislative Council
International Council of Shopping Centers
Orange County Business Council
Painting and Decorating Contractors of California
Promising Futures, Inc.
Rental Housing Association of Northern Alameda County
San Diego County Apartment Association
San Francisco Association of REALTORS
San Joaquin County Rental Property Association
Santa Barbara Rental Property Association
South Bay Association of Chambers of Commerce
Western Electrical Contractors Association
ARGUMENTS IN SUPPORT : According to the author's office,
it is common practice in the property management industry
to seek out the lowest bidders for property services
without regard to their labor practices. According to the
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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. This bill provides a measure of job stability
when contractors are changed, through no fault of their
own.
Proponents argue that 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 their own.
Proponents 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
because 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 falling into poverty.
ARGUMENTS IN OPPOSITION : According to opponents, 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. Opponents
argue that 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, opponents
argue that by limiting a subsequent employer's ability to
properly conduct background checks of potential employees,
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it is setting up these subsequent employers for potential
negligent hiring litigation.
Opponents also argue that this bill will not reduce the
current unemployment rate since the subsequent contractor
will be forced to either (1) displace its existing
workforce to take on the new employees; or (2) eliminate
positions it would have opened to new applicants in the
industry as those positions would now be filled by the
prior contractor's employees. Additionally, opponents
argue that if the incoming contractor becomes responsible
for determining what employees are poor performers and are
not eligible to stay on site, then they could become liable
for the unemployment claim, which could result in an
increase in a contractor's or subcontractor's experience
modification rate for unemployment insurance.
Furthermore, 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. According to
opponents, since this bill mandates that subsequent
employers hire the predecessor's employees, it will 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.
The California Disability Services Association (CDSA)
opposes this bill, 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 if they
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 where the
unemployment rate already exceeds 80 percent. Moreover,
they argue that it is not possible for them to employ
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people to work with persons with disabilities who have not
gone through existing hiring procedures, including criminal
background checks, many of which are required by existing
laws and regulations.
ASSEMBLY FLOOR : 46-31, 5/31/11
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Butler, Charles
Calderon, Campos, Carter, Cedillo, Chesbro, Davis,
Dickinson, Eng, Feuer, Fong, Fuentes, Furutani, Galgiani,
Gatto, Hall, Hayashi, Roger Hern�ndez, Hueso, Huffman,
Lara, Bonnie Lowenthal, Ma, Mendoza, Mitchell, Monning,
Pan, V. Manuel P�rez, Portantino, Skinner, Solorio,
Swanson, Wieckowski, Williams, Yamada, John A. P�rez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Fletcher, Beth Gaines, Garrick, Gordon, Grove, Hagman,
Halderman, Harkey, Hill, Huber, Jeffries, Jones, Knight,
Logue, Mansoor, Miller, Morrell, Nestande, Nielsen,
Norby, Olsen, Perea, Silva, Smyth, Valadao, Wagner
NO VOTE RECORDED: Buchanan, Gorell, Torres
PQ:kc 8/31/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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