BILL NUMBER: AB 350 AMENDED
BILL TEXT
AMENDED IN SENATE SEPTEMBER 2, 2011
AMENDED IN SENATE AUGUST 30, 2011
AMENDED IN SENATE AUGUST 15, 2011
AMENDED IN SENATE JUNE 30, 2011
AMENDED IN ASSEMBLY APRIL 27, 2011
INTRODUCED BY Assembly Member Solorio
(Coauthors: Assembly Members Lara and Mendoza)
(Coauthor: Senator Vargas)
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 amended, 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 consist of licensed
security, as defined, window cleaning, food cafeteria and dietary
services, janitorial services, and cleaning-related or light
building maintenance services. This bill would exclude from
the definitions of "contractor" and "subcontractor" specified types
of food service providers. 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 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 property services performed within the
State of California, including any subcontracts for 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, excluding an organization vendored or contracted
through a regional center or the State Department of Developmental
Services pursuant to the Lanterman Developmental Disabilities
Services Act (Division 4.5 (commencing with Section 4500) of the
Welfare and Institutions Code) or the California Early Intervention
Services Act (Title 14 (commencing with Section 95000) of the
Government Code) to provide services and supports for persons with
developmental disabilities, as defined in Section 4512 of the Welfare
and Institutions Code, that employs 200 or fewer individuals in the
delivery of food services, that enters into a food service contract
with the awarding authority or with a contractor to assist that
contractor in performing a food service contract, and that provides a
written notice to the awarding authority asserting exemption
pursuant to this subdivision. In calculating whether an organization
employs 200 or fewer individuals for these purposes, persons employed
solely to produce commodities or provide services for procurement
pursuant to Sections 46 to 48c, inclusive, of Title 41 of the United
States Code shall not be counted.
(c) "Employee" means any person employed as a property service
employee of a contractor or subcontractor who works at least 15 hours
per week, has been employed by the contractor for at least four
months prior to receiving notification of a contract termination, as
described in paragraph (1) of subdivision (a) of Section 1061, and
whose primary place of employment is in the State of California under
a contract to provide 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, cleaning-related
or light building maintenance, licensed security, window
cleaning, or food cafeteria and dietary services. For purposes of
this subdivision, "licensed security service" means service rendered
by a person covered under a valid collective bargaining agreement 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.
(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, excluding an organization
vendored or contracted through a regional center or the State
Department of Developmental Services pursuant to the Lanterman
Developmental Disabilities Services Act (Division 4.5 (commencing
with Section 4500) of the Welfare and Institutions Code) or the
California Early Intervention Services Act (Title 14 (commencing with
Section 95000) of the Government Code) to provide services and
supports for persons with developmental disabilities, as defined in
Section 4512 of the Welfare and Institutions Code, that employs 200
or fewer individuals in the delivery of food services, that enters
into a food service contract with the awarding authority or with a
contractor to assist that contractor in performing a food service
contract, and that provides a written notice to the awarding
authority asserting exemption pursuant to this subdivision. In
calculating whether an organization employs 200 or fewer individuals
for these purposes, persons employed solely to produce commodities or
provide services for procurement pursuant to Sections 46 to 48c,
inclusive, of Title 41 of the United States Code shall not be
counted.
(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 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 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 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 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 period
is satisfactory, the successor contractor or successor subcontractor
shall 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.
(g) Nothing in this section shall require an employer to employ a
person who is a registered sex offender or who has been convicted of
a felony involving robbery, rape, murder, assault with intent to
kill, assault that inflicts grievous bodily injury, or any similar
violation.
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 property
service employees that impose greater standards than, or establish
enforcement provisions in addition to, those prescribed by this
chapter.