Today's Law As Amended


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AB-257 Food facilities and employment.(2021-2022)



As Amends the Law Today


SECTION 1.
 This act shall be known, and may be cited, as the Fast Food Accountability and Standards Recovery Act or FAST Recovery Act.
SEC. 2.
 The Legislature finds and declares the following:
(a) For years, the fast food sector has been rife with abuse, low pay, few benefits, and minimal job security, with California workers subject to high rates of employment violations, including wage theft, sexual harassment and discrimination, as well as heightened health and safety risks.
(b) Fast food workers are the largest and fastest growing group of low-wage workers in the state and lack sector-specific protections.
(c) The COVID-19 pandemic has illustrated the implications for workers and the public when a disempowered workforce faces a crisis in a sector with a poor history of compliance with workplace health and safety regulations.
(d) Workers with inadequate means to amplify their voices and their experience, and to address the pervasive problems plaguing the sector, have exacerbated the impact of this crisis and denied workers a path to win safer workplaces for themselves, their families, and fast food consumers.
(e) Since the onset of the COVID-19 pandemic, numerous local, state, and federal laws and regulations have been instituted to require operational changes on the part of businesses to protect employees from infection.
(f) Numerous complaints filed by fast food workers with local health departments and the Division of Occupational Safety and Health illustrate that fast food operators routinely have flouted protections, including, but not limited to, failing to provide adequate protection against workplace violence, requiring workers to work without access to personal protective equipment, denying workers sick pay, failing to inform workers of exposure to COVID-19, actively hiding COVID-19 cases, and demanding that workers come to work when they are sick.
(g) As a result, fast food workers, and the public they serve, face serious and unacceptable risks to their health and safety.
(h) In addition, fast food companies have profited during the pandemic, while California’s one-half million fast food workers have been hard hit, both medically and financially. Despite corporate profits, fast food workers are poorly positioned to participate in a fast recovery and a more equitable economy, one that reflects improved job quality, wages, and working conditions, responsible use of technology, and modernized worker protections.
(i) Therefore, cooperation between state agencies with responsibility for improving and enforcing health and safety and other worker protection laws, with regular input from business and worker representatives, along with improved incentives to achieve compliance, is critical to protecting fast food workers, customers, and the public.
(j) Furthermore, because existing enforcement and regulatory mechanisms have proved inadequate in ensuring fast food restaurant worker health, safety, and welfare, the Legislature concludes that sectorwide minimum health, safety, and employment standards, including standards concerning wages and other working conditions, identified by an expert body with subject matter expertise and experience in the fast food sector, are necessary to protect, maintain, and ensure the health, safety, and welfare of, and to supply the necessary cost of proper living to, fast food restaurant employees.
(k) Nothing in this act is intended to usurp or encroach on the Legislature’s ability to establish standards governing the health, safety, welfare, and employment of workers, including fast food restaurant workers. It is the intent of the Legislature to ensure that legislators have sufficient time to review and, as appropriate, take legislative action with respect to fast food standards established by the expert body, which will be promulgated pursuant to notice-and-comment rulemaking procedures, before those standards take effect.

SEC. 3.

 Section 96 of the Labor Code is amended to read:

96.
 The Labor Commissioner and his or her  the  deputies and representatives authorized by him or her  the commissioner  in writing shall, upon the filing of a claim therefor by an employee, or an employee representative authorized in writing by an employee, with the Labor Commissioner, take assignments of:
(a) Wage claims and incidental expense accounts and advances.
(b) Mechanics’ and other liens of employees.
(c) Claims based on “stop orders” for wages and on bonds for labor.
(d) Claims for damages for misrepresentations of conditions of employment.
(e) Claims for unreturned bond money of employees.
(f) Claims for penalties for nonpayment of wages.
(g) Claims for the return of workers’ tools in the illegal possession of another person.
(h) Claims for vacation pay, severance pay, or other compensation supplemental to a wage agreement.
(i) Awards for workers’ compensation benefits in which the Workers’ Compensation Appeals Board has found that the employer has failed to secure payment of compensation and where the award remains unpaid more than 10 days after having become final.
(j) Claims for loss of wages as the result of discharge from employment for the garnishment of wages.
(k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.
(l) Claims for violations of standards issued by the Fast Food Sector Council pursuant to Part 4.7 (commencing with Section 1470) of Division 2.

SEC. 4.

 Part 4.7 (commencing with Section 1470) is added to Division 2 of the Labor Code, to read:

PART 4.7. Fast Food Workers

1470.
 For purposes of this part:
(a) “Fast food chain” means a set of restaurants consisting of 30 or more establishments nationally that share a common brand, or that are characterized by standardized options for decor, marketing, packaging, products, and services.
(b) “Council” means the Fast Food Sector Council.
(c) “Fast food restaurant” means any establishment in the state that is part of a fast food chain and that, in its regular business operations, primarily provides food or beverages in the following manner:
(1) In disposable containers.
(2) For immediate consumption either on or off the premises.
(3) With limited or no table service.
(4) To customers who order or select items and pay before eating.
(d) “Fast food restaurant franchisee” means a person to whom a fast food restaurant franchise is granted.
(e) “Fast food restaurant franchisor” means a person who grants or has granted a fast food restaurant franchise.
(f) “Fast food restaurant operator” means a person who operates a fast food restaurant.
(g) “Franchise,” “franchisee,” and “franchisor” have the definitions set forth in Article 1 (commencing with Section 20000) of Chapter 5.5 of Division 8 of the Business and Professions Code.
1471.
 (a) (1) The Fast Food Sector Council is hereby established within the Department of Industrial Relations to consist of the following 11 members:
(A) One representative from the State Department of Public Health.
(B) One representative from the Division of Occupational Safety and Health.
(C) One representative from the Division of Labor Standards and Enforcement.
(D) Two representatives from the Department of Industrial Relations.
(E) One representative of fast food restaurant franchisors.
(F) One representative of fast food restaurant franchisees.
(G) Two representatives of fast food restaurant employees.
(H) Two representatives of advocates for fast food restaurant employees.
(2) The Governor shall appoint the representatives of the state agencies. The Speaker of the Assembly shall appoint the representative of fast food restaurant franchisors, one representative of fast food restaurant employees, and one representative of an advocate for fast food restaurant employees. The Senate Rules Committee shall appoint the representative of fast food restaurant franchisees, one representative of fast food restaurant employees, and one representative of an advocate for fast food restaurant employees.
(3) The appointments shall be at the will of each appointing power and each member of the commission shall serve for a term of four years. All terms shall end on January 1. Vacancies occurring prior to the expiration of the term shall be filled by appointment for the unexpired term. A commission member shall not serve more than two consecutive terms. The council shall elect by majority vote a member to serve as its chairperson.
(4) The council may employ necessary assistants, officers, experts, and other employees as it deems necessary. All personnel of the council shall be under the supervision of the chairperson or an executive officer to whom the chairperson delegates such responsibility. All such personnel shall be appointed pursuant to the State Civil Service Act (Part 1 (commencing with Section 18000) of Division 5 of Title 2 of the Government Code), except for the one exempt deputy or employee allowed by subdivision (e) of Section 4 of Article VII of the California Constitution.
(b) The council’s purposes are to establish sectorwide minimum standards on wages, working hours, and other working conditions adequate to ensure and maintain the health, safety, and welfare of, and to supply the necessary cost of proper living to, fast food restaurant workers and to ensure and effect interagency coordination and prompt agency responses regarding issues affecting the health, safety, and employment of fast food restaurant workers.
(c) The council shall provide direction to, and coordinate with, the Governor, executive agencies, and local agencies regarding the health, safety, and employment of fast food restaurant workers.
(d) (1) The council shall promulgate minimum fast food restaurant employment standards, including, as appropriate, standards on wages, working conditions, and training, as are reasonably necessary or appropriate to protect and ensure the welfare, including the physical well-being and security, of fast food restaurant workers or to otherwise meet the purposes of this section, subject to the limitations of subdivision (e). The council may also issue, amend, or repeal any other rules and regulations as necessary to carry out its duties under this section or meet the purposes of this section, subject to the limitations of subdivision (e). To the extent there is a conflict between standards, rules, or regulations issued by the council and the rules or regulations issued by another state agency, the standards, rules, or regulations issued by the council shall apply to fast food restaurant workers and fast food restaurant franchisees and franchisors, and the conflicting rules or regulations of the other state agency shall not have force or effect with respect to fast food restaurant workers, franchisees, or franchisors. Decisions by the council regarding standards, rules, and regulations shall be made by an affirmative vote of at least six of the council members. All standards, rules, and regulations by the council shall be issued, amended, or repealed, as applicable, in the manner prescribed in Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2) (A) A standard, or repeal or amendment of a standard, shall not take effect until the council submits, to the appropriate committees on labor of each house of the Legislature and pursuant to Section 9795 of the Government Code, a report that contains a copy of that standard, repeal, or amendment and a statement of the council’s reasons for adopting that standard, repeal, or amendment.
(B) (i) A standard, or repeal or amendment of a standard, shall not take effect until at least 60 days during which the Legislature is in session have passed since the report required by this paragraph was received by the Legislature.
(ii) This subparagraph shall not apply to emergency standards.
(C) The council shall provide information as requested by the appropriate committees of the Legislature on labor to facilitate a review of the council’s performance and standards under this section, which review may be conducted in a joint hearing held every three years or as otherwise designated by the appropriate committees of the Legislature on labor.
(3) Nothing in this section shall be construed to give the council the authority to create or amend statutes.
(e) To the extent that any minimum standards that the council finds are reasonably necessary to protect fast food restaurant worker health and safety fall within the jurisdiction of the Occupational Safety and Health Standards Board, the council shall not promulgate the standards, but rather shall recommend the standards to the Occupational Safety and Health Standards Board. The Occupational Safety and Health Standards Board shall issue a written decision and explanation on the recommended standards within three months, unless the recommendation is for an emergency standard, in which case it shall issue a written decision and explanation within one month. The Occupational Safety and Health Standards Board shall adopt a fast food health and safety standard recommended by the council, in accordance with the procedures and provisions set forth in Chapter 6 (commencing with Section 140) of Division 1, unless it finds that the recommended standard is outside its statutory authority or otherwise unlawful.
(f) (1) The council shall conduct a full review of the adequacy of the minimum fast food restaurant health, safety, and employment standards at least once every three years. Upon that review, the council shall issue, amend, or repeal, or make recommendations to issue, amend, or repeal, any fast food employment, health or safety standard, or a portion of any such standard, as appropriate to meet the purposes of this section. With the exception of emergency standards, any individual new standard, or an amendment or repeal of an existing standard, shall not be less protective of or less beneficial to health, safety, or fast food restaurant worker employment conditions, including wages, than the immediately preceding standard.
(2) The council, for the purpose of reviewing the adequacy of fast food restaurant health, safety, or employment standards, or the purpose of promulgating or recommending new fast food restaurant standards, may issue subpoenas to compel the attendance of witnesses and production of books, papers, and records, by an affirmative vote of at least six of the council members. Obedience to subpoenas issued by the council shall be enforced by the courts. The council may administer oaths and examine witnesses under oath for the purpose of reviewing the adequacy of, or promulgating or recommending, fast food restaurant health, safety, or employment standards.
(g) The council shall hold hearings every six months that are open to the public, at which the public, including fast food restaurant employees, shall have the opportunity to be heard on issues of fast food restaurant health, safety, and employment conditions. The council shall provide advance public notice of these hearings that is reasonably calculated to advise fast food restaurant workers, franchisors, franchisees, community members, and other stakeholders of the opportunity to participate in the hearings. The location of the hearings shall rotate among major metropolitan areas throughout the state to provide fast food restaurant workers, franchisors, franchisees, community members, and other stakeholders throughout the state a reasonable opportunity to participate in a hearing at least once per each three-year review.
(h) The council may coordinate with local agencies and authorize them to hold hearings that are open to the public, at which the public, including fast food restaurant employees, shall have the opportunity to be heard on issues of fast food restaurant health, safety, and employment conditions. After these hearings, the local agency shall prepare a report for the council that summarizes the information received at the public hearings and includes any recommendations for action by the council.
(i) A county, and a city with a population of greater than 200,000, may establish a Local Fast Food Sector Council, which shall be composed of at least one representative who is either a fast food restaurant franchisor or a fast food restaurant franchisee and at least one representative who is a fast food restaurant employee, and a majority of representatives from local employment, health, and safety agencies. A Local Fast Food Sector Council established pursuant to this subdivision shall provide direction to, and coordinate with, local agencies regarding the health, safety, and employment of fast food restaurant workers within the applicable local jurisdiction, and shall periodically hold hearings that are open to the public, at which the public, including fast food restaurant employees, shall have the opportunity to be heard on issues of local fast food restaurant health, safety, and employment conditions. A Local Fast Food Sector Council may provide written recommendations to the council regarding minimum local health, safety, and employment standards, including training, that the Local Fast Food Sector Council finds are reasonably necessary to protect the health, safety, and welfare of fast food restaurant workers within the relevant local jurisdiction, but these recommendations shall not be less protective of, or less beneficial to, health, safety, or fast food restaurant worker employment conditions than other applicable state or local standards. The council shall consider any recommendations for local standards from Local Fast Food Sector Councils and shall provide a written explanation within 60 days if it does not adopt a Local Fast Food Sector Council’s recommendation for a local standard.
(j) (1) The minimum wages, maximum hours of work, and other working conditions fixed by the council in standards promulgated pursuant to subdivision (d) shall be the minimum wage, maximum hours of work, and the standard conditions of labor for fast food restaurant employees or a relevant subgroup of fast food restaurant employees. The employment of a fast food restaurant employee for lower wages or for longer hours than those fixed by the minimum standards promulgated by the council, or under any other working conditions prohibited by the minimum standards promulgated by the council, is unlawful. Compliance with the minimum fast food restaurant employment standards promulgated by the council shall be enforced by the commissioner and the Division of Labor Standards Enforcement pursuant to the procedures and provisions set forth in Chapter 4 (commencing with Section 79) of Division 1.
(2) Minimum fast food health and safety standards promulgated by the Occupational Safety and Health Standards Board pursuant to subdivision (e) shall be administered and enforced by the Division of Occupational Safety and Health to the same extent as other orders promulgated by the Occupational Safety and Health Standards Board.
1472.
 (a) A fast food restaurant franchisor shall be responsible for ensuring that its franchisee complies with the following applicable employment and worker and public health and safety laws and orders, and any implementing regulations:
(1) Chapter 5 (commencing with Section 17200) of Part 2 of Division 7 of the Business and Professions Code.
(2) Part 2.8 (commencing with 12900) of Division 3 of Title 2 of the Government Code.
(3) Chapter 1 (commencing with Section 113700) to Chapter 9 (commencing with Section 114265), inclusive, of Part 7 of, and Article 1 (commencing with Section 114380) to Article 4 (commencing with Section 114417), inclusive, of Chapter 13 of Part 7 of, Division 104 of the Health and Safety Code.
(4) (A) Article 1 (commencing with Section 200) and Article 1.5 (commencing with Section 245) of Chapter 1 of, and Chapter 2 (commencing with Section 300) and Chapter 3 (commencing with Section 350) of, Part 1.
(B) Chapter 1 (commencing with Section 500) of Part 2.
(C) Chapter 1 (commencing with Section 920), Chapter 2 (commencing with Section 970), Chapter 3 (commencing with Section 1010), Chapter 3.1 (commencing with Section 1019), Chapter 3.6 (commencing with Section 1024.5), Chapter 3.8 (commencing with Section 1030), Chapter 3.9 (commencing with Section 1040), Chapter 4 (commencing with 1050), and Chapter 5 (commencing with Section 1101) to Chapter 10 (commencing with Section 2000), inclusive, of Part 3.
(D) Article 1 (commencing with Section 2260) and Article 3 (commencing with Section 2350) of Chapter 1 of Part 9.
(E) Part 13 (commencing with Section 2698).
(F) Part 1 (commencing with Section 6300) of Division 5.
(5) Orders, including emergency and executive orders, issued by the Governor regarding employment standards, worker safety, or public health and safety.
(6) Orders issued by a county or municipality regarding employment standards or worker or public health and safety.
(7) Section 1473.
(8) Standards issued by the council.
(b) If a fast food restaurant franchisee is liable for a violation of any of the laws and orders set forth in subdivision (a), or any rules or regulations implementing these laws or orders, its franchisor shall be jointly and severally liable for any penalties or fines for the violation.
(c) The laws and orders set forth in subdivision (a), and any implementing rules and regulations implementing these laws and orders, may be enforced against a fast food restaurant franchisor to the same extent that they may be enforced against the fast food restaurant franchisor’s franchisee.
(d) A waiver of this section or Section 1473, or any agreement by a fast food restaurant franchisee to indemnify its fast food restaurant franchisor for liability under this section or Section 1473, is contrary to public policy and is void and unenforceable.
(e) (1) If the terms of a franchise prevent or create a substantial barrier to a fast food restaurant franchisee’s compliance with the laws, orders, rules, and regulations set forth in subdivision (a) and their implementing rules and regulations, or any changes to them, including because the franchise does not provide for funds sufficient to allow the franchisee to comply with the laws, orders, rules, and regulations, or any changes to them, the fast food restaurant franchisee may file an action against its fast food restaurant franchisor for monetary or injunctive relief necessary to ensure compliance.
(2) There shall be a rebuttable presumption that any changes in the terms of a franchise that increase the costs of the franchise to the fast food restaurant franchisee create a substantial barrier to compliance with the laws and orders set forth in subdivision (a) and their implementing rules and regulations, or any changes to them.
(f) If a fast food restaurant franchisee shows by a preponderance of the evidence that the terms of its franchise were a substantial factor in causing any liability the franchisee has actually incurred under federal, state, or local law, the franchisor shall be jointly and severally liable for the portion of the liability to which the terms of the franchise contributed.
1473.
 (a) A fast food restaurant operator shall not discharge or in any manner discriminate or retaliate against any employee for any of the following reasons:
(1) The employee made a complaint or disclosed information to the franchisor, fast food restaurant operator, or a governmental agency regarding employee or public health or safety.
(2) The employee instituted, caused to be instituted, testified in, or otherwise participated in a proceeding relating to employee or public health or safety, or any council or Local Fast Food Sector Council proceeding.
(3) The employee refused to perform work in a fast food restaurant because the employee had reasonable cause to believe that the practices or premises of that fast food restaurant would violate any of the worker and public health and safety laws, regulations, or orders in Section 1471, or would pose a substantial risk to the health or safety of the employee, other employees, or the public.
(b) Any employee of a fast food restaurant operator discharged or otherwise discriminated or retaliated against in the terms and conditions of employment in violation of subdivision (a) shall have a right of action for, and shall be entitled to, reinstatement, and treble the lost wages and work benefits caused by the discrimination or retaliation, and the employee’s reasonably incurred attorney’s fees and costs. The Labor Commissioner may enforce violations of this section, with or without receiving a complaint, pursuant to Sections 98.7 and 98.74.
(c) There shall be a rebuttable presumption of unlawful discrimination or retaliation for purposes of this section if a fast food restaurant operator discharges or takes any other adverse action against one of its employees within 90 days following the date when the operator had knowledge of that employee’s action or actions described in paragraphs (1) to (3), inclusive, of subdivision (a).
SEC. 5.
 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.