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AB-1074 Employment: rehiring and retention: displaced workers.(2021-2022)

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Date Published: 02/18/2021 09:00 PM
AB1074:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1074


Introduced by Assembly Members Lorena Gonzalez and Kalra
(Principal coauthor: Senator Durazo)

February 18, 2021


An act to amend Sections 1060 and 1064 of, to amend the heading of Chapter 4.5 (commencing with Section 1060) of Part 3 of Division 2 of, and to add Section 2810.8 to, the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 1074, as introduced, Lorena Gonzalez. Employment: rehiring and retention: displaced workers.
(1) Existing law governs employment relations, defines the contract of employment, and establishes the obligations of employers to their employees.
This bill would require an employer, as defined, to offer its laid-off employees specified information about job positions that become available for which the laid-off employees are qualified, and to offer positions to those laid-off employees based on a preference system, in accordance with specified timelines and procedures. The bill would define the term “laid-off employee” to mean any employee who was employed by the employer for 6 months or more in the 12 months preceding January 1, 2020, and whose most recent separation from active service was due to a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, nondisciplinary reason related to the COVID-19 pandemic. The bill would require an employer that declines to recall a laid-off employee on the grounds of lack of qualifications and instead hires someone other than a laid-off employee to provide the laid-off employee a written notice within 30 days including specified reasons for the decision, and other information on those hired.
This bill would prohibit an employer from refusing to employ, terminating, reducing compensation, or taking other adverse action against any person for seeking to enforce their rights under these provisions. The bill would establish specified methods by which these provisions may be enforced, including authorizing an employee to file a complaint with the Division of Labor Standards Enforcement against the employer for specified relief, including hiring and reinstatement rights and awarding of back pay. The bill would authorize the Division of Labor Standards Enforcement to promulgate and enforce rules and regulations, and issue determinations and interpretations concerning these provisions.
(2) Existing law establishes the Displaced Janitor Opportunity Act, which requires contractors and subcontractors, as defined, that are awarded contracts or subcontracts to provide janitorial or building maintenance services at a particular jobsite or sites, to retain, for a period of 60 days, certain employees who were employed at that site by the previous contractor or subcontractor, and offered continued employment if their performance during that 60-day period is satisfactory. Existing law authorizes an employee who was not retained, or the employee’s agent, to bring an enforcement action in a court of competent jurisdiction, as specified.
Existing law defines “awarding authority” to mean any person that awards or otherwise enters into contracts for janitorial or building maintenance services performed within the State of California, including any subcontracts for janitorial or building maintenance services.
This bill would rename the act the Displaced Janitor and Hotel Worker Opportunity Act and would extend the provisions of the act to hotel workers. The bill would redefine “awarding authority” under the act to include any person that awards or otherwise enters into contracts for hotel services including guest service, food and beverage or cleaning performed within the state, as specified. The will would also redefine “employee” to include a person employed as a service employee of a contractor or subcontractor who works at least 15 hours per week and whose primary place of employment is in the state under a contract to provide janitorial or building maintenance services or hotel services.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 The heading of Chapter 4.5 (commencing with Section 1060) of Part 3 of Division 2 of the Labor Code is amended to read:
CHAPTER  4.5. Displaced Janitor And Hotel Worker Opportunity Act

SEC. 2.

 Section 1060 of the Labor Code is amended to read:

1060.
 The following definitions shall apply throughout this chapter:
(a) “Awarding authority” means any person that awards or otherwise enters into contracts for janitorial or building maintenance services or hotel services including guest service, food and beverage, or cleaning performed within the State of California, including any subcontracts for janitorial or building maintenance services or hotel services.
(b) “Contractor” means any person that employs 25 or more individuals and that enters into a service contract with the awarding authority.
(c) “Employee” means any person employed as a service employee of a contractor or subcontractor who works at least 15 hours per week and whose primary place of employment is in the State of California under a contract to provide janitorial or building maintenance services or hotel services. “Employee” does not include a person who is a managerial, supervisory, or confidential employee, including those employees who would be so defined under the federal Fair Labor Standards Act.
(d) “Person” means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ individuals or enter into contracts.
(e) “Service contract” means any contract that has the principal purpose of providing services through the use of service employees.
(f) “Subcontractor” means any person who is not an employee who enters into a contract with a contractor to assist the contractor in performing a service contract.
(g) “Successor service contract” means a service contract for the performance of essentially the same services as were previously performed pursuant to a different service contract at the same facility that terminated within the previous 30 days. A service contract entered into more than 30 days after the termination of a predecessor service contract shall be considered a “successor service contract” if its execution was delayed for the purpose of avoiding application of this chapter.

SEC. 3.

 Section 1064 of the Labor Code is amended to read:

1064.
 Nothing in this chapter shall prohibit a local government agency from enacting ordinances relating to displaced janitors or hotel service workers that impose greater standards than, or establish additional enforcement provisions to, those prescribed by this chapter.

SEC. 4.

 Section 2810.8 is added to the Labor Code, to read:

2810.8.
 (a) For purposes of this section:
(1) “Airport” means as any area of land or water used or intended for landing or takeoff of aircraft including appurtenant area used or intended for airport buildings, facilities, as well as rights of way together with the buildings and facilities within the State of California, excluding any military base or federally operated facility.
(2) “Airport hospitality operation” means a business that prepares, delivers, inspects, or provides any other service in connection with the preparation of, food or beverage for aircraft crew or passengers at an airport, or that provides food and beverage, retail, or other consumer goods or services to the public at an airport. The term airport hospitality operation does not include an air carrier certificated by the Federal Aviation Administration.
(3) “Airport service provider” means a business that performs, under contract with a passenger air carrier, airport facility management, or airport authority, functions on the property of the airport that are directly related to the air transportation of persons, property, or mail, including, but not limited to, the loading and unloading of property on aircraft, assistance to passengers under Part 382 (commencing with Section 382.1) of Title 14 of the Code of Federal Regulations, security, airport ticketing and check-in functions, ground-handling of aircraft, aircraft cleaning and sanitization functions, and waste removal. The term “airport service provider” does not include an air carrier certificated by the Federal Aviation Administration.
(4) “Building service” means janitorial, building maintenance, or security services.
(5) “Employee” means any individual who in a particular week performs at least two hours of work for an employer.
(6) “Employer” means any person, including a corporate officer or executive, who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency or similar entity, owns or operates an enterprise and employs or exercises control over the wages, hours, or working conditions of any employee.
(7) “Enterprise” means a hotel, private club, event center, airport hospitality operation, airport service provider, or the provision of building service to office, retail, or other commercial buildings.
(8) “Event center” means a publicly or privately owned structure of more than 50,000 square feet or 1,000 seats that is used for the purposes of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term “event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the event center’s purpose, including food preparation facilities, concessions, retail stores, restaurants, bars, and structured parking facilities.
(9) “Hotel” means a residential building that is designated or used for lodging and other related services for the public, and containing 50 or more guest rooms, or suites of rooms (adjoining rooms do not constitute a suite of rooms). “Hotel” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services at the building. The number of guest rooms, or suites of rooms, shall be calculated based on the room count on the opening of the hotel or on December 31, 2019, whichever is greater.
(10) “Laid-off employee” means any employee who was employed by the employer for 6 months or more in the 12 months preceding January 1, 2020, and whose most recent separation from active service was due to a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, nondisciplinary reason related to the COVID-19 pandemic.
(11) “Length of service” means the total of all periods of time during which an employee has been in active service with the employer, including periods of time when the employee was on leave or on vacation.
(12) “Person” means an individual, corporation, partnership, limited partnership, limited liability partnership, limited liability company, business trust, estate, trust, association, joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign.
(13) “Private club” means a private, membership-based business or nonprofit organization that operates a building or complex of buildings containing at least 50 guest rooms or suites of rooms that are offered as overnight lodging to members. The number of guest rooms or suites of rooms shall be calculated based on the room count on the opening of the private club or on December 31, 2019, whichever is greater.
(b) (1) An employer shall offer its laid-off employees in writing, to their last known physical address, and by email and text message to the extent the employer possesses such information, all job positions that become available after the effective date of this section for which the laid-off employees are qualified. A laid-off employee is qualified for a position if the employee held the same or similar position at the enterprise at the time of the employee’s most recent separation from active service with the employer.
(2) The employer shall offer positions to laid-off employees in an order of preference corresponding to paragraph (1). If more than one employee is entitled to preference for a position, the employer shall offer the position to the laid-off employee with the greatest length of service for the enterprise.
(3) A laid-off employee who is offered a position pursuant to this section shall be given at least five business days in which to accept or decline the offer. A “business day” is any day except Saturday, Sunday, or any official state holiday. An employer may make simultaneous, conditional offers of employment to laid-off employees, with a final offer of employment conditioned on application of the priority system set forth in paragraph (2).
(4) An employer that declines to recall a laid-off employee on the grounds of lack of qualifications and instead hires someone other than a laid-off employee shall provide the laid-off employee a written notice within 30 days including the length of service with the employer of those hired in lieu of that recall, along with all reasons for the decision.
(5) This section also applies in any of the following circumstances:
(A) The ownership of the employer changed after the separation from employment of a laid-off employee but the enterprise is conducting the same or similar operations as before the state of emergency.
(B) The form of organization of the employer changed after the state of emergency.
(C) Substantially all of the assets of the employer were acquired by another entity which conducts the same or similar operations using substantially the same assets.
(D) The employer relocates the operations at which a laid-off employee was employed before the state of emergency to a different location.
(c) No employer shall refuse to employ, terminate, reduce in compensation, or otherwise take any adverse action against any person for seeking to enforce their rights under this section by any lawful means, for participating in proceedings related to this section, opposing any practice proscribed by this section, or otherwise asserting rights under this section. This subdivision shall also apply to any employee who mistakenly, but in good faith, alleges noncompliance with this section.
(d) This section may be enforced as follows:
(1) An employee, including any eligible employee, may file a complaint with the Division of Labor Standards Enforcement against the employer, or in the case of a violation of subdivision (c), incumbent employer or the successor employer, for violations of this section and may be awarded any or all of the following, as appropriate:
(A) Hiring and reinstatement rights pursuant to this section, with the 90-day transition employment period not commencing until the eligible employee’s employment commencement date with the successor employer.
(B) Front pay or back pay for each day during which the violation continues, which shall be calculated at a rate of compensation not less than the highest of any of the following rates:
(i) The average regular rate of pay received by the employee or eligible employee during the last three years of that employee’s employment in the same occupation classification.
(ii) The most recent regular rate received by the employee or eligible employee while employed by the employer, incumbent employer, or the successor employer.
(iii) The regular rate received by the individual in the position during the time that the employee or eligible employee should have been employed.
(C) Value of the benefits the employee or eligible employee would have received under the employer or successor employer’s benefit plan.
(2) Any complaint filed with the division shall be investigated as provided in subdivision (b) of Section 98.7.
(3) No criminal penalties shall be imposed for violation of this section.
(e) The Division of Labor Standards Enforcement may promulgate and enforce rules and regulations, and issue determinations and interpretations, consistent with and necessary for the implementation of this article. Those rules and regulations, determinations and interpretations shall have the force of law and may be relied upon by employers, employees, and other persons to determine their rights and responsibilities under this section.
(f) Nothing in this section shall prohibit a local government agency from enacting ordinances that impose greater standards than, or establish additional enforcement provisions to, those prescribed by this section. This section shall not be construed to limit a discharged employee or eligible employee’s right to bring a common law cause of action for wrongful termination.
(g) All of the provisions of this section, or any part of this section, may be waived in a valid collective bargaining agreement, but only if the waiver is explicitly set forth in that agreement in clear and unambiguous terms. Unilateral implementation of terms and conditions of employment by either party to a collective bargaining relationship shall not constitute or be permitted as a waiver of all or any part of the provisions of this section.
(h) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.