Today's Law As Amended

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AB-2732 Employment: unfair immigration-related practices: janitorial workers: sexual violence and harassment prevention training.(2017-2018)



SECTION 1.

 Section 1019.3 is added to the Labor Code, to read:

1019.3.
 (a) It is unlawful for an employer to knowingly destroy, conceal, remove, confiscate, or possess any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person in the course of committing, or with the intent to commit, trafficking, peonage, slavery, involuntary servitude, or a coercive labor practice.
(b) A violation of subdivision (a) is a misdemeanor.
(c) Notwithstanding, and in addition to, any fine that may be levied as a result of any criminal prosecution provided for in subdivision (b) or another statute, an employer who violates subdivision (a) shall be subject to a civil penalty of up to ten thousand dollars ($10,000). The penalty shall be recoverable by the Labor Commissioner. If, upon inspection or investigation, the Labor Commissioner determines that a violation of this section has occurred, the Labor Commissioner may issue a citation. The procedures for issuing, contesting, and enforcing judgments for citations or civil penalties issued by the Labor Commissioner for violations of this section shall be the same as those set forth in Section 1197.1.
(d) An employer shall keep posted conspicuously at the place of work, if practicable, or otherwise where it can be seen as employees come and go to their places of work, or at the office or nearest agency for payment kept by the employer, a notice specifying the rights of an employee to maintain custody and control of the employee’s own immigration documents and that the withholding of immigration documents by an employer is a crime, in accordance with this section. The notice shall also inform employees of the following: “If your employer or anyone is controlling your movement, documents, or wages, or using direct or implied threats against you or your family, or both, you have the right to call local or federal authorities, or the National Human Trafficking Hotline at 888-373-7888.”
(e) In enacting this section, the Legislature does not intend to preclude a prosecution under the labor trafficking provisions or other laws prohibiting the mistreatment of workers generally, or any other civil remedy available at law or equity.

SEC. 2.

 Section 1019.5 is added to the Labor Code, to read:

1019.5.
 (a) For an employee hired on or after July 1, 2019, an employer shall provide to the employee the document entitled the “Worker’s Bill of Rights” prior to verifying an employee’s employment authorization pursuant to Section 1324a(b) of Title 8 of the United States Code. For an employee hired before July 1, 2019, an employer shall provide to each employee the document when made available by the department. The employer shall provide the document in a language understood by the employee, and the employer shall require the employee to sign and date the document in acknowledgment that the employee has read and understood the rights listed in the document. The employer shall keep the signed document in its records for a period of no less than three years and shall give the employee a copy of the signed document. The employer may comply with the language requirement either by providing the document in the language understood by the employee, or, if not available from the department in the language understood by the employee pursuant to subdivision (c), by having the document interpreted for the employee in the language that the employee understands.
(b) On or before July 1, 2019, the department shall develop a document for purposes of this section, entitled the “Worker’s Bill of Rights,” to inform an employee of the following rights:
(1) The right of an employee to hold on to the employee’s own immigration and identification documents and that an employer cannot take those documents from the employee, except as required to inspect or copy documents to verify employment eligibility under federal law.
(2) The right to be paid the mandatory minimum wage established by law or a wage that is agreed upon in an employment contract, whichever is higher.
(3) The right to live wherever the employee chooses and that the employee does not have to live at any place designated by the employer.
(4) The right not to be subject to debt bondage in lieu of being paid wages owed to the employee. Debt bondage is not legal in the United States and there is no imprisonment for those who owe money.
(5) The right to call local or federal authorities, or the National Human Trafficking Hotline at 888-373-7888, if the employer or anyone else is controlling the employee’s movement, documents, or wages, or using direct or implied threats against the employee or the employee’s family.
(c) The department shall make the document developed pursuant to subdivision (b) available on its Internet Web site for download by employers to use in accordance with this section on or before July 1, 2019. The department shall make the document available in English and in versions translated into the 12 languages most commonly spoken in this state by non-English-speaking people or people with limited English language proficiency.

SEC. 3.

 Section 1420 of the Labor Code is amended to read:

1420.
 For purposes of this part:
(a) (1) “Covered worker” means a janitor, including any individual predominantly working, whether as an employee, independent contractor, or franchisee, as a janitor, as that term is defined in the Service Contract Act Directory of Occupations maintained by the United States Department of Labor.
(2) “Covered worker” does not include any individual whose work duties are predominantly final cleanup of debris, grounds, and buildings near the completion of a construction, alteration, demolition, installation, or repair work project, including, but not limited to, street cleaners.
(b) “Current and valid registration” means an active registration pursuant to this part that is not expired or revoked.
(c) “Department” means the Department of Industrial Relations.
(d) “Director” means the Director of Industrial Relations.
(e) (1) “Employer” means any person or entity that employs at least one employee and one or more covered workers and that enters into contracts, subcontracts, or franchise arrangements to provide janitorial services.  covered worker or otherwise engages by contract, subcontract, or franchise agreement for the provision of janitorial services by one or more covered workers.  The term “employer” includes the term “covered successor employer.” employer” but does not include an entity that is the recipient of the janitorial services. 
(2) “Covered successor employer” means an employer who meets one or more of the following criteria:
(A) Uses substantially the same equipment, supervisors, and workforce to offer substantially the same services to substantially the same clients as a predecessor employer, unless the employer maintains the same workforce pursuant to Chapter 4.5 (commencing with Section 1060) of Part 3. In addition, an employer who has operated with a current and valid registration for at least the preceding three years shall not be considered a covered successor employer for using substantially the same equipment, supervisors, and workforce to substantially the same clients, if all of the following apply:
(i) The individuals in the workforce were not referred or supplied for employment by the predecessor employer to the successor employer.
(ii) The successor employer has not had any interest in, or connection with, the operation, ownership, management, or control of the business of the predecessor employer within the preceding three years.
(B) Shares in the ownership, management, control of the workforce, or interrelations of business operations with the predecessor employer.
(C) Is an immediate family member of any owner, partner, officer, licensee, or director of the predecessor employer or of any person who had a financial interest in the predecessor employer. “Immediate family member” means a spouse, parent, sibling, son, daughter, uncle, aunt, niece, nephew, grandparent, grandson, granddaughter, mother-in-law, father-in-law, brother-in-law, sister-in-law, or cousin.
(f) “Commissioner” means the Labor Commissioner of the Division of Labor Standards Enforcement of the department.
(g) “Supervisor” has the same meaning as in subdivision (t) of Section 12926 of the Government Code.

SEC. 4.

 Section 1421 of the Labor Code is amended to read:

1421.
 Every employer shall keep accurate records for three years, showing all of the following:
(a) The names and addresses of all employees engaged in rendering actual services for any business of the employer.
(b) The hours worked daily by each employee, including the times the employee begins and ends each work period.
(c) The wage and wage rate paid each payroll period.
(d) The age of all minor employees.
(e) Any other conditions of employment.
(f) The names, addresses, periods of work, and compensation paid to all other covered workers.

SEC. 4.5.

 Section 1421 of the Labor Code is amended to read:

1421.
 Every employer shall keep accurate records for three years, showing all of the following:
(a) The names and addresses of all employees engaged in rendering actual janitorial  services for any business of  the employer.
(b) The hours worked daily by each employee, including the times the employee begins and ends each work period.
(c) The wage and wage rate paid each payroll period.
(d) The age of all minor employees.
(e) Any other conditions of employment.
(f) The names, addresses, periods of work, and compensation paid to all other covered workers.

SEC. 5.

 Section 1429 of the Labor Code is amended to read:

1429.
 The Division of Labor Standards Enforcement shall not approve the registration of any employer until all of the following conditions are satisfied:
(a) The employer has executed a written application, in a form prescribed by the commissioner and subscribed and sworn to by the employer containing the following:
(1) The name of the business entity and, if applicable, its fictitious or “doing business as” name.
(2) The form of the business entity and, if a corporation, all of the following:
(A) The date of incorporation.
(B) The state in which incorporated.
(C) If a foreign corporation, the date the articles of incorporation were filed with the California Secretary of State.
(D) Whether the corporation is in good standing with the California Secretary of State.
(3) The federal employer identification number (FEIN) and the state employer identification number (SEIN) of the business.
(4) The address of the business and the telephone number and, if applicable, the addresses and telephone numbers of any branch locations.
(5) Whether the application is for a new or renewal registration and, if the application is for a renewal, the prior registration number.
(6) The names, residential addresses, telephone numbers, and social security numbers of the following persons:
(A) All corporate officers, if the business entity is a corporation.
(B) All persons exercising management responsibility in the applicant’s office, regardless of form of business entity.
(C) All persons, except bona fide employees on regular salaries, who have a financial interest of 10 percent or more in the business, regardless of the form of business entity, and the actual percent owned by each of those persons.
(7) The policy number, effective date, expiration date, and name and address of the carrier of the applicant business’ current workers’ compensation coverage.
(8) (A) Whether the employer and any persons named in response to subparagraph (A), (B), or (C) of paragraph (6) presently:
(i) Owe any unpaid wages.
(ii) Have unpaid judgments outstanding.
(iii) Have any liens or suits pending in court against himself or herself.
(iv) Owe payroll taxes, or personal, partnership, or corporate income taxes, Social Security taxes, or disability insurance.
(B) An applicant who answers affirmatively to any item described in subparagraph (A) shall provide, as part of the application, additional information on the unpaid amounts, including the name and address of the party owed, the amount owed, and any existing payment arrangements.
(9) (A) Whether the employer and any persons named in response to subparagraph (A), (B), or (C) of paragraph (6) have ever been cited or assessed any penalty for violating any provision of this code.
(B) An applicant who answers affirmatively to any item described in subparagraph (A) shall provide additional information, as part of the application, on the date, nature of citation, amount of penalties assessed for each citation, and the disposition of the citation, if any. The application shall describe any appeal filed. If the citation was not appealed, or if it was upheld on appeal, the applicant shall state whether the penalty assessment was paid.
(10) Effective January 1, 2020, all new applications for registration and renewal of registration shall complete  demonstrate completion of  the sexual violence and harassment prevention training requirements prescribed by the division and developed pursuant to Section 1429.5. 1429.5 by providing a written attestation to the commissioner that the training has been provided as required. 
(11) Such other information as the commissioner requires for the administration and enforcement of this part.
(b) The employer has paid a registration fee to the Division of Labor Standards Enforcement pursuant to Section 1427.
(c) Notwithstanding any other law, violation of this section shall not be a crime.

SEC. 5.5.

 Section 1429 of the Labor Code is amended to read:

1429.
 The Division of Labor Standards Enforcement shall not approve the registration of any employer until all of the following conditions are satisfied:
(a) The employer has executed a written application, in a form prescribed by the commissioner and subscribed and sworn to by the employer employer,  containing the following:
(1) The name of the business entity and, if applicable, its fictitious or “doing business as” name.
(2) The form of the business entity and, if a corporation, all of the following:
(A) The date of incorporation.
(B) The state in which incorporated.
(C) If a foreign corporation, the date the articles of incorporation were filed with the California Secretary of State.
(D) Whether the corporation is in good standing with the California Secretary of State.
(3) The federal employer identification number (FEIN) and the state employer identification number (SEIN) of the business.
(4) The address of the business and the telephone number and, if applicable, the addresses and telephone numbers of any branch locations. locations and the name of any subcontractor or franchise servicing contracts affiliated with a branch location and the number of subcontracted or franchise employees servicing each of those contracts, the total number of employees working out of each listed branch office, and the address of each work location serviced by a branch office. 
(5) Whether the application is for a new or renewal registration and, if the application is for a renewal, the prior registration number.
(6) The names, residential addresses, telephone numbers, and social security numbers of the following persons:
(A) All corporate officers, if the business entity is a corporation.
(B) All persons exercising management responsibility in the applicant’s office, regardless of form of business entity.
(C) All persons, except bona fide employees on regular salaries, who have a financial interest of 10 percent or more in the business, regardless of the form of business entity, and the actual percent owned by each of those persons.
(7) The policy number, effective date, expiration date, and name and address of the carrier of the applicant business’ current workers’ compensation coverage.
(8) (A) Whether the employer and any persons named in response to subparagraph (A), (B), or (C) of paragraph (6) presently:
(i) Owe any unpaid wages.
(ii) Have unpaid judgments outstanding.
(iii) Have any liens or suits pending in court against himself or herself.
(iv) Owe payroll taxes, or personal, partnership, or corporate income taxes, Social Security taxes, or disability insurance.
(B) An applicant who answers affirmatively to any item described in subparagraph (A) shall provide, as part of the application, additional information on the unpaid amounts, including the name and address of the party owed, the amount owed, and any existing payment arrangements.
(9) (A) Whether the employer and any persons named in response to subparagraph (A), (B), or (C) of paragraph (6) have ever been cited or assessed any penalty for violating any provision of this code.
(B) An applicant who answers affirmatively to any item described in subparagraph (A) shall provide additional information, as part of the application, on the date, nature of citation, amount of penalties assessed for each citation, and the disposition of the citation, if any. The application shall describe any appeal filed. If the citation was not appealed, or if it was upheld on appeal, the applicant shall state whether the penalty assessment was paid.
(10) Effective January 1, 2020, all new applications for registration and renewal of registration shall complete  demonstrate completion of  the sexual violence and harassment prevention training requirements prescribed by the division and developed pursuant to Section 1429.5. 1429.5 by providing a written attestation to the commissioner that the training has been provided as required. 
(11) Such other information as the commissioner requires for the administration and enforcement of this part.
(b) The employer has paid a registration fee to the Division of Labor Standards Enforcement pursuant to Section 1427.
(c) Notwithstanding any other law, violation of this section shall not be a crime.

SEC. 6.

 Section 1429.5 of the Labor Code is amended to read:

1429.5.
 The Division of Labor Standards Enforcement shall establish a biennial in-person sexual violence and harassment prevention training requirement for employees  covered workers  and employers covered by this part by January 1, 2019. To assist in developing these standards, the director shall convene an advisory committee to recommend requirements for a sexual harassment prevention training program. The advisory committee shall be composed of representatives of the Division of Labor Standards Enforcement, the Division of Occupational Safety and Health, and the Department of Fair Employment and Housing, and shall also include representatives from a recognized or certified collective bargaining agent that represents janitorial workers, employers, labor-management groups in the janitorial industry, sexual assault victims advocacy groups, and other related subject matter experts. The director shall convene the advisory committee no later than July 1, 2017. The advisory committee shall consider the requirements of Section 12950.1 of the Government Code when developing the recommended standard. The Division of Labor Standards Enforcement shall propose the requirements for the sexual violence and harassment prevention training requirement no later than January 1, 2018.

SEC. 6.5.

 Section 1429.5 of the Labor Code is amended to read:

1429.5.
 (a)  The Division of Labor Standards Enforcement shall establish a biennial in-person sexual violence and harassment prevention training requirement for employees  covered workers  and employers covered by this part by January 1, 2019. To assist in developing these standards, the director shall convene an advisory committee to recommend requirements for a sexual harassment prevention training program. The advisory committee shall be composed of representatives of the Division of Labor Standards Enforcement, the Division of Occupational Safety and Health, and the Department of Fair Employment and Housing, and shall also include representatives from a recognized or certified collective bargaining agent that represents janitorial workers, employers, labor-management groups in the janitorial industry, sexual assault victims advocacy groups, and other related subject matter experts. The director shall convene the advisory committee no later than on or before  July 1, 2017. The advisory committee shall consider the requirements of Section 12950.1 of the Government Code when developing the recommended standard. The Division of Labor Standards Enforcement shall propose the requirements for the sexual violence and harassment prevention training requirement no later than January 1, 2018.
(b) To assist in refining the standards described in subdivision (a), the director shall convene an advisory committee to develop requirements for qualified organizations and peer trainers that employers covered by this part shall use to provide the training required. The training provided under this section shall be in lieu of, and not in addition to, the requirements for training under the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code). The advisory committee shall be composed of representatives of the Division of Labor Standards Enforcement, the Division of Occupational Safety and Health, and the Department of Fair Employment and Housing, the Department of Consumer Affairs, and shall also include representatives from a recognized or certified collective bargaining agent that represents janitorial workers, employers, labor-management groups in the janitorial industry, sexual assault victims advocacy groups, and other related subject matter experts. The director shall convene the advisory committee no later than July 1, 2019. The Division of Labor Standards Enforcement shall adopt the requirements for the qualified organizations and peer trainers no later than January 1, 2020.
(c) The Division of Labor Standards Enforcement shall require employers covered by this part subject to the biennial training requirement to provide the training content created by the advisory committee.
(d) An employer covered by this part, upon employee request, shall provide to the employee a copy of all training materials used during a training he or she attended.
(e) Employers covered by this part subject to the biennial training requirement shall be required to use a qualified organization from the list of qualified organizations developed and maintained by the director to provide the required training to nonsupervisors. Qualified organizations shall provide peer trainers that employers covered by this part shall use to provide the required training to nonsupervisors, in addition to the trainer or trainer educators qualified to provide training under Section 12950.1 of the Government Code. The employer shall be required to pay the qualified organization. The qualified organization shall ensure that the peer trainer is paid an hourly rate of at least twice the state minimum wage per hour to cover the peer trainer’s regular wages. The hourly rate shall be reviewed every five years by the advisory committee. A covered employer shall be required to document compliance with the training requirement by completing and signing a form, to be created by the Division of Labor Standards Enforcement, certifying that the training was conducted and that the qualified organization was paid in full, and the form shall be produced upon request by the Division of Labor Standards Enforcement. A qualified organization shall submit a report to the director of a training within 48 hours of completion, and the report shall include the names of employers and employees trained and shall identify management and supervisors.
(f) The advisory committee shall approve and recommend the qualified organizations to the director. A qualified organization may work with a training partner to provide the required training. As used in this subdivision, “training partner” means a nonprofit or Taft-Hartley labor management organization that has an established contractual relationship with a qualified organization to provide training required under this part or to provide education and training to peer trainers. A qualified organization, on its own or through its training partners, shall:
(1) Have at least 100 qualified peer trainers or educators.
(2) Have at least five years of experience in training on issues specific to sexual harassment and assault or in workplace education within the janitorial or property service industry.
(3) Have at least five years of experience in coordinating and managing statewide technical assistance and training efforts.
(4) Have access to local and regional sexual violence-related trauma services and resources for local referrals documented through letters of support from service providers.
(5) Be committed to ongoing education and development as documented by a minimum of 10 hours of professional development each year for qualified organization staff in areas of research and strategies to prevent and respond to sexual assault and sexual harassment.
(g) To be qualified as a peer trainer under this section, a person shall have the training and experience necessary to train employees and employers and shall, at the minimum, have the following qualifications:
(1) At least 40 hours of advocate training in the following:
(A) Survivor-centered and trauma-informed principles and techniques.
(B) The long-term effects of sexual trauma and the intersection of discrimination, oppression, and sexual violence.
(C) The availability of local, state, and national resources for survivors of sexual violence.
(D) Interactive teaching strategies that engage across multiple literacy levels.
(E) Conducting discrimination, retaliation, and sexual harassment prevention training.
(F) Responding to sexual harassment complaints or other discrimination complaints.
(G) Employer responsibility to conduct investigations of sexual harassment complaints.
(H) Advising employees regarding discrimination, retaliation, and sexual harassment prevention.
(2) Have two years of nonsupervisory work experience in the janitorial or property service industry and be employed in the industry in a nonsupervisory capacity.
(3) Be culturally competent and fluent in the language or languages that the relevant employees understand.
(h) The director shall develop and maintain a list of qualified organizations and qualified peer trainers as recommended by the advisory committee. The list shall be updated by the director as recommended by the advisory committee every three years.
(i) The advisory committee shall meet every three years to review and update the list of qualified organizations and qualified peer trainers.
(j) The advisory committee may recommend to the director to waive the requirement to use a qualified organization or qualified peer trainer in a specific county. The director, with the recommendation of the advisory committee, may grant a waiver, if it is demonstrated that a qualified peer trainer or qualified organization cannot provide the training in the county. If a waiver is granted for a county, an employer in the county may use a trainer as prescribed by the Department of Fair Employment and Housing with respect to sexual harassment training and education.

SEC. 7.

 Section 1434 of the Labor Code is amended to read:

1434.
 A successor employer is liable for any wages and penalties its predecessor employer owes to any of the predecessor employer’s former employee or employees,  workforce,  if the successor employer meets any of the following criteria:
(a) Uses substantially the same workforce to offer substantially the same services as the predecessor employer. This factor does not apply to employers who maintain the same workforce pursuant to Chapter 4.5 (commencing with Section 1060) of Part 3.
(b) Shares in the ownership, management, control of the labor relations, or interrelations of business operations with the predecessor employer.
(c) Employs in a managerial capacity any person who directly or indirectly controlled the wages, hours, or working conditions of the affected employees workforce  of the predecessor employer.
(d) Is an immediate family member of any owner, partner, officer, or director of the predecessor employer of any person who had a financial interest in the predecessor employer.

SEC. 7.5.

 Section 1434 of the Labor Code is amended to read:

1434.
 A successor employer is liable for any wages and penalties its predecessor employer owes to any of the predecessor employer’s former employee or employees,  workforce,  if the successor employer meets any of the following criteria:
(a) Uses substantially the same workforce to offer substantially the same janitorial  services as the predecessor employer. This factor does not apply to employers who maintain the same workforce pursuant to Chapter 4.5 (commencing with Section 1060) of Part 3.
(b) Shares in the ownership, management, control of the labor relations, or interrelations of business operations with the predecessor employer.
(c) Employs in a managerial capacity any person who directly or indirectly controlled the wages, hours, or working conditions of the affected employees workforce  of the predecessor employer.
(d) Is an immediate family member of any owner, partner, officer, or director of the predecessor employer of any person who had a financial interest in the predecessor employer.
SEC. 8.
 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
SEC. 9.
 Section 4.5 of this bill incorporates amendments to Section 1421 of the Labor Code proposed by both this bill and Assembly Bill 2079. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2019, (2) each bill amends Section 1421 of the Labor Code, and (3) this bill is enacted after Assembly Bill 2079, in which case Section 4 of this bill shall not become operative.
SEC. 10.
 Section 5.5 of this bill incorporates amendments to Section 1429 of the Labor Code proposed by both this bill and Assembly Bill 2079. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2019, (2) each bill amends Section 1429 of the Labor Code, and (3) this bill is enacted after Assembly Bill 2079, in which case Section 5 of this bill shall not become operative.
SEC. 11.
 Section 6.5 of this bill incorporates amendments to Section 1429.5 of the Labor Code proposed by both this bill and Assembly Bill 2079. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2019, (2) each bill amends Section 1429.5 of the Labor Code, and (3) this bill is enacted after Assembly Bill 2079, in which case Section 6 of this bill shall not become operative.
SEC. 12.
 Section 7.5 of this bill incorporates amendments to Section 1434 of the Labor Code proposed by both this bill and Assembly Bill 2079. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2019, (2) each bill amends Section 1434 of the Labor Code, and (3) this bill is enacted after Assembly Bill 2079, in which case Section 7 of this bill shall not become operative.