Code Section Group

Labor Code - LAB

DIVISION 2. EMPLOYMENT REGULATION AND SUPERVISION [200 - 2699.5]

  ( Division 2 enacted by Stats. 1937, Ch. 90. )

PART 3. PRIVILEGES AND IMMUNITIES [920 - 1138.5]

  ( Part 3 enacted by Stats. 1937, Ch. 90. )

CHAPTER 4.6. Public Transit Service Contracts and Contracts for the Collection and Transportation of Solid Waste [1070 - 1076]
  ( Heading of Chapter 4.6 amended by Stats. 2016, Ch. 874, Sec. 1. )

1070.
  

The Legislature finds and declares all of the following:

(a) That when public agencies with jurisdiction over public transit services or the collection and transportation of solid waste award contracts to operate bus and rail services, or to provide for the collection and transportation of solid waste to a new contractor, qualified employees of the prior contractor who are not reemployed by the successor contractor face significant economic dislocation as a result.

(b) That those displaced employees rely unnecessarily upon the unemployment insurance system, public social services, and health programs, increasing costs to these vital government programs and placing a significant burden upon both the government and the taxpayers.

(c) That it serves an important social purpose to establish incentives for contractors who bid on public transit service contracts or contracts for the collection and transportation of solid waste to retain qualified employees of the prior contractor to perform the same or similar work.

(Amended by Stats. 2016, Ch. 874, Sec. 2. (AB 1669) Effective January 1, 2017.)

1071.
  

The following definitions apply to this chapter:

(a) “Awarding authority” means any local government agency, including any city, county, special district, transit district, joint powers authority, or nonprofit corporation that awards or otherwise enters into contracts for public transit services or for the collection and transportation of solid waste performed within the State of California.

(b) “Bidder” means any person who submits a bid to an awarding authority for a public transit service contract, an exclusive contract for the collection and transportation of solid waste, or a subcontract.

(c) “Contractor” means any person who enters into a public transit service contract or an exclusive contract for the collection and transportation of solid waste with an awarding authority.

(d) “Employee” means any individual who works for a contractor or subcontractor under a contract. “Employee” does not include an executive, administrative, or professional employee exempt from the payment of overtime compensation within the meaning of subdivision (a) of Section 515 or any person who is not an “employee” as defined under Section 2(3) of the National Labor Relations Act (29 U.S.C. Sec. 152(3)).

(e) “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.

(f) “Public transit services” means the provision of passenger transportation services to the general public, including paratransit service.

(g) “Service contract” means any contract the principal purpose of which is to provide public transit services or the exclusive right to provide collection and transportation of solid waste through the use of employees.

(h) “Solid waste” has the same meaning as defined in Section 40191 of the Public Resources Code.

(i) “Subcontractor” means any person who is not an employee who enters into a contract with a contractor to perform a portion of the contractor’s express obligations under a service contract. “Subcontractor” does not include a contractor’s vendors, suppliers, insurers, or other service providers.

(Amended by Stats. 2016, Ch. 874, Sec. 3. (AB 1669) Effective January 1, 2017.)

1072.
  

(a) A bidder shall declare as part of the bid for a service contract whether or not the bidder will retain the employees of the prior contractor or subcontractor for a period of not less than 90 days, as provided in this chapter, if awarded the service contract.

(b) An awarding authority letting a service contract out to bid shall give a 10-percent preference to any bidder who agrees to retain the employees of the prior contractor or subcontractor pursuant to subdivision (a).

(c) (1) If the awarding authority announces that it intends to let a service contract out to bid, the existing service contractor, within a reasonable time, shall provide to the awarding authority the number of employees who are performing services under the service contract and the wage rates, benefits, and job classifications of those employees. In addition, the existing service contractor shall make this information available to any entity that the awarding authority has identified as a bona fide bidder. This information shall be made available to each bona fide bidder in writing at least 30 days before bids for the service contract are due, whether by inclusion of the information in the request for bids or otherwise. If the successor service contract is awarded to a new contractor, the existing contractor shall provide the names, addresses, dates of hire, wages, benefit levels, and job classifications of employees to the successor contractor. The duties imposed by this subdivision shall be contained in all service contracts.

(2) A successor contractor or subcontractor who agrees to retain employees pursuant to subdivision (a) shall retain employees who have been employed by the prior contractor or subcontractors, except for reasonable and substantiated cause. That cause is limited to the particular employee’s performance or conduct while working under the prior contract or the employee’s failure of any controlled substances and alcohol test, physical examination, criminal background check required by law as a condition of employment, or other standard hiring qualification lawfully required by the successor contractor or subcontractor.

(3) The successor contractor or subcontractor shall make a written offer of employment to each employee to be retained pursuant to subdivision (a). That offer shall state the time within which the employee must accept that offer, but in no case less than 10 days. This section does not require the successor contractor or subcontractor to pay the same wages or offer the same benefits provided by the prior contractor or subcontractor.

(4) If, at any time, the successor contractor or subcontractor determines that fewer employees are required than were required under the prior contract or subcontract, the successor contractor or subcontractor shall retain qualified employees by seniority within the job classification. In determining those employees who are qualified, the successor contractor or subcontractor may require an employee to possess any license that is required by law to operate the equipment that the employee will operate as an employee of the successor contractor or subcontractor.

(Amended by Stats. 2017, Ch. 561, Sec. 143. (AB 1516) Effective January 1, 2018.)

1073.
  

(a) An employee who was not offered employment or who has been discharged in violation of this chapter, or his or her agent, may bring an action against the successor contractor or subcontractor in any superior court having jurisdiction over the successor contractor or subcontractor. Upon finding a violation of this chapter, the court shall order reinstatement to employment with the successor contractor or subcontractor and award backpay, including the value of benefits, for each day of violation. A violation of this chapter continues for each day that the successor contractor or subcontractor fails to employ the employee, within the period agreed to pursuant to Section 1072.

(b) The court may preliminarily or permanently enjoin the continued violation of this chapter.

(c) If the employee prevails in an action brought under this chapter, the court shall award the employee reasonable attorney’s fees and costs as part of the costs recoverable.

(Added by Stats. 2003, Ch. 103, Sec. 1. Effective January 1, 2004.)

1074.
  

(a) Upon its own motion or upon the request of any member of the public, an awarding authority may terminate any service contract made pursuant to Section 1072 if both of the following occur:

(1) The contractor or subcontractor has substantially breached the contract.

(2) The awarding authority holds a public hearing within 30 days of the receipt of the request or its announcement of its intention to terminate.

(b) A contractor or subcontractor terminated pursuant to subdivision (a) shall be ineligible to bid on or be awarded a service contract or subcontract with that awarding authority for a period of not less than one year and not more than three years, to be determined by the awarding authority.

(Added by Stats. 2003, Ch. 103, Sec. 1. Effective January 1, 2004.)

1075.
  

Notwithstanding any other provision of this chapter, the following shall apply to service contracts for the collection and transportation of solid waste:

(a) A successor contractor or subcontractor shall be required to retain only employees of a contractor or subcontractor under a prior service contract whose employment would be terminated if the service contract were awarded to another contractor or subcontractor.

(b) A successor contractor or subcontractor shall not be required to retain an employee of a contractor or subcontractor under a prior service contract under any of the following circumstances:

(1) If the employee of the prior contractor or subcontractor does not meet any standard hiring qualification lawfully required by the successor contractor or subcontractor for the position.

(2) If the successor contractor or subcontractor would be required to terminate or reassign an existing employee covered under a collective bargaining agreement with the successor contractor or subcontractor in order to hire the employee of the prior contractor or subcontractor.

(3) If, and to the extent, the actual number of employees meeting the requirements of this chapter exceeds the number of those employees communicated to bona fide bidders in accordance with paragraph (1) of subdivision (c) of Section 1072.

(c) An employee or his or her agent shall not bring an action against a successor contractor or subcontractor under subdivision (a) of Section 1073 without first giving the successor contractor or subcontractor written notice of the violation or breach and 30 days to cure the violation or breach. An awarding authority shall not terminate a service contract under subdivision (a) of Section 1074 without first giving the successor contractor or subcontractor written notice of the violation or breach and 30 days to cure the violation or breach.

(d) This chapter shall only apply to service contracts for the collection and transportation of solid waste when an awarding agency decides to let an exclusive solid waste collection and transportation contract out to bid. It is not intended to determine whether or not a local agency should procure a service contract by inviting bids, extend an existing service contract, renegotiate its service contract with the prior contractor, or exercise any other right it possesses pursuant to Section 40059 of the Public Resources Code to determine aspects of solid waste handling that are of local concern.

(e) This chapter does not modify, limit, or abrogate in any manner any franchise, contract, license, or permit granted or extended by a city, county, or other local government agency before January 1, 2017.

(Added by Stats. 2016, Ch. 874, Sec. 5. (AB 1669) Effective January 1, 2017.)

1076.
  

The amendments and additions to this chapter made by the act adding this section shall not apply to contracts awarded before January 1, 2017, or to contracts for which the bid process has been completed before January 1, 2017.

(Added by Stats. 2016, Ch. 874, Sec. 6. (AB 1669) Effective January 1, 2017.)

LABLabor Code - LAB