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AB-547 Janitorial workers: sexual violence and harassment prevention training. (2019-2020)

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Date Published: 04/30/2019 08:55 AM
AB547:v97#DOCUMENT

Revised  May 08, 2019
Amended  IN  Assembly  April 29, 2019
Amended  IN  Assembly  April 11, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 547


Introduced by Assembly Member Gonzalez
(Coauthor: Assembly Member Carrillo)

February 13, 2019


An act to amend Sections 1420, 1421, 1428, 1429, 1429.5, 1430, and 1434 of the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 547, as amended, Gonzalez. Janitorial workers: sexual violence and harassment prevention training.
Existing law establishes the Division of Labor Standards Enforcement within the Department of Industrial Relations. The division is headed by the Labor Commissioner and the department is headed by the Director of Industrial Relations. Existing law establishes certain protections for janitorial workers, including a requirement that the division establish a biennial in-person sexual violence and harassment prevention training requirement for certain employees and employers with the assistance of a prescribed advisory committee to be convened by the director. employers.
Existing law requires employers of at least one employee and one or more covered workers, as defined, who provide janitorial services, as specified, to register with the commissioner annually and prohibits them from conducting business without a registration. Existing law requires an application for registration to be in a form prescribed by the commissioner and subscribed and sworn to by the employer, as specified.
This bill would prohibit the division from approving a registration, as described above, if the employer does not include in their written application the name of any subcontractor or franchise servicing contracts affiliated with a branch location and the number of subcontracted or franchise covered workers servicing each of those contracts, the total number of covered workers working out of a listed branch office, and the address of each work location serviced by a branch office.
Existing law requires the director to convene an advisory committee to assist in development of training standards.
This bill would require the director to reconvene the training standards advisory committee to develop requirements for qualified organizations and peer trainers that employers would be required to use to provide the biennial training described above. The bill would require the division to consider the recommendations of the training advisory committee in adopting the training provider advisory committee requirements for qualified organizations and peer trainers by January 1, 2021.
This bill would require the division to require employers subject to the training requirements to use the training content created by the training standards advisory committee. The bill would require an employer, upon request, to provide to a covered worker a copy of all training materials used during a training the employee covered worker attended.
This bill would require employers to use a qualified organization from the list of qualified organizations developed and maintained by the director to provide the required training, and would require qualified organizations to provide peer trainers for employers to use in the training, as specified. The bill would require the employer to pay the qualified organization. The bill would require the qualified organization to ensure that the peer trainer is paid at least twice the state minimum wage per hour.
This bill would require an employer to document and certify compliance with the training to nonsupervisors and payment of the qualified organization, as specified, on a form prescribed by, and available to, the division. The bill would require a qualified organization to submit a specified report of a training to the director within 48 hours of completion. By expanding the scope of the crime of perjury, this bill would impose a state-mandated local program.
The bill would require the training provider advisory committee to approve and recommend the qualified organizations to the director. The bill would authorize a qualified organization to work with a training partner, as defined, to provide the required training. The bill would prescribe certain minimum qualifications for qualified organizations and peer trainers. The bill would require the director to develop, maintain, and update as prescribed a list of qualified organizations and qualified peer trainers, as recommended by the training advisory committee. The bill would authorize the director, with the recommendation of the training advisory committee, to waive the requirement to use a qualified organization or qualified peer trainer, as specified.
The bill would make conforming changes.
Existing law prohibits the division from registering or renewing the registration of an employer, as described above, in specified circumstances.
This bill would, additionally, prohibit the division from registering or renewing the registration of an employer if the employer has not fully satisfied a final judgment due to a covered worker or former covered worker for certain unlawful employment practices, as specified, or if the employer has not complied with a provision of existing law requiring the employer to secure the payment of compensation, as specified.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 This act shall be known, and may be cited, as the Janitor Survivor Empowerment Act.

SEC. 2.

 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 covered worker or otherwise engages by contract, subcontract, or franchise agreement for providing janitorial services by one or more covered workers. The term “employer” includes the term “covered successor employer,” but does not include an entity that receives 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. 3.

 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 covered workers engaged in rendering janitorial services for the employer.
(b) The hours worked daily by each covered worker, including the times the covered worker begins and ends each work period.
(c) The wage and wage rate paid each payroll period.
(d) The age of all minor covered workers.
(e) Any other conditions of employment.

SEC. 4.

 Section 1428 of the Labor Code is amended to read:

1428.
 A janitorial employer shall not conduct any business to provide janitorial services without complying with the registration requirements of this part. The commissioner may revoke a registration if they find a janitorial employer to be out of compliance with any requirement of this part or to have failed to satisfy any of the conditions of Section 1429.

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 all of 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 and the name of any subcontractor or franchise servicing contracts affiliated with a branch location and the number of subcontracted or franchise covered workers servicing each of those contracts, the total number of covered workers 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 or taxpayer identification 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 covered workers 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 them in court. them.
(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 demonstrate completion of the sexual violence and harassment prevention training requirements prescribed by the division and developed pursuant to Section 1429.5 by providing 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.
 (a) The Division of Labor Standards Enforcement shall establish a biennial in-person sexual violence and harassment prevention training requirement for covered workers and employers covered by this part by January 1, 2019. The training shall be in lieu of, and not in addition to, the requirements for training under Section 12950.1 of the Government Code. To assist in developing these standards, the director shall convene a training standards advisory committee to recommend requirements for a sexual harassment prevention training program. The training 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 training advisory committee by July 1, 2017. The training 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 by January 1, 2018. The director shall reconvene the training standards advisory committee to develop requirements for qualified organizations and peer trainers that employers covered by this part shall use to provide the required training. The Division of Labor Standards Enforcement shall consider recommendations of the training advisory committee in adopting the requirements for the qualified organizations and peer trainers by January 1, 2021.
(b) 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 training standards advisory committee.
(c) An employer covered by this part, upon a covered worker’s request, shall provide to the covered worker a copy of all training materials used during a training the covered worker attended.
(d) Employers covered by this part subject to the biennial training requirement shall 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 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 training provider 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 of the Division of Labor Standards Enforcement. A qualified organization shall submit a report of a training to the director within 48 hours of completion. The report shall include the names of employers and covered workers trained and shall identify management and supervisors.
(e) The training provider 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, provided that the qualified organization has entered into a written partnership agreement with the training partner. As used in this subdivision, “training partner” means a nonprofit, worker center, or labor organization, provided that the nonprofit, worker center, or labor organization has at least 10,000 working janitor members in the janitorial industry in the State of California. A qualified organization, on its own or through its training partners, shall comply with all of the following:
(1) Have at least 100 qualified peer trainers or educators.
(2) Have access to local and regional sexual violence-related trauma services and resources for local referrals documented through letters of support from service providers.
(3) 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.
(4) Have experience working with immigrant low-wage workers on issues of sexual assault and harassment doing advocacy or training.
(f) To be qualified as a peer trainer under this section, a person shall have the training and experience necessary to train covered workers and employers and shall, at the minimum, have all of the following qualifications:
(1) At least a cumulative 40 hours of advocate training in the following areas:
(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 covered workers 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 covered workers understand.
(g) The director shall develop and maintain a list of qualified organizations and qualified peer trainers as recommended by the training provider advisory committee. The list shall be updated by the director as recommended by the training advisory committee every three years.
(h) The training provider advisory committee shall meet every three years to review and update the list of qualified organizations and qualified peer trainers.
(i) The training provider advisory committee may recommend that the director waive the requirement to use a qualified organization or qualified peer trainer in a specific county. The director, with the recommendation of the training 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 1430 of the Labor Code is amended to read:

1430.
 The Division of Labor Standards Enforcement shall not register or renew the registration of an employer in any of the following circumstances:
(a) The employer has not fully satisfied any final judgment for unpaid wages due to an employee a covered worker or former employee covered worker of a business for which the employer is required to register under this chapter.
(b) The employer has failed to remit the proper amount of contributions required by the Unemployment Insurance Code or the Employment Development Department has made an assessment for those unpaid contributions against the employer that has become final and the employer has not fully paid the amount of delinquency for those unpaid contributions.
(c) The employer has failed to remit the amount of Social Security and Medicare tax contributions required by the Federal Insurance Contributions Act (FICA) to the Internal Revenue Service and the employer has not fully paid the amount or delinquency for those unpaid contributions.
(d) The employer has not fully satisfied any final judgment for a violation of Section 12940 of the Government Code that is due to an employee a covered worker or former employee covered worker of a business for which the employer is required to register under this part.
(e) The employer is not in compliance with Section 3700.

SEC. 8.

 Section 1434 of the Labor Code is amended to read:

1434.
 A successor employer is liable for any wages, damages, and penalties its predecessor employer owes to any of the predecessor employer’s former 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 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. 9.

 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.
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REVISIONS:
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