By: Philip A. Toomey, Esq.
California-based janitorial workers are entitled to certain rights under California law. Specifically, there are two important Acts designed to protect the rights of these workers: The Displaced Janitors Opportunity Act (“DJOA”) and the Property Service Workers Protection Act (“PSWPA”). PSWPA was modified in 2017 and has its first compliance date on July 1, 2018.
The Displaced Janitors Opportunity Act (California Labor Code §§ 1060 et seq.)
California law prohibits at will termination of janitors and building maintenance personnel under certain circumstances. The DJOA, enacted in 2002, affects contractors and subcontractors who are awarded janitorial and building maintenance contracts within 30 days of the termination of another janitorial or building maintenance contractor or subcontractor’s contract at the same facility.
The DJOA requires a successor with 25 or more employees to hire and retain the previous contractor’s employees for 60 days, unless: (A) an employee had less than four (4) months of service at the site covered by the successor’s contract; or (B) the successor has just cause to refuse the hired employee. In this context, “just cause” is defined as “reasonable and substantial cause not to hire a particular employee based on that employee’s performance or conduct while performing under the terminated contract.” It remains an open question as to whether something occurring prior to that employee’s hire (such as resume fraud, failure to disclose a prior conviction, or a customer imposing a condition that individuals with certain types of prior convictions would not be permitted on site), but ignored or disregarded by the previous contractor, can be used by the successor to deny employment.
The DJOA does not require the successor to pay the same wages or offer the same benefits as the prior contractor or subcontractor. The successor must make a written offer of employment to each employee in his or her primary language. The offer must state how much time the employee has to accept the contract, with a minimum of 10 days.
During the 60-day period after commencing work under the contract, the successor must maintain a preferential hiring list of eligible employees whom it did not retain. It must use that list to hire any additional employees until all of the terminated contractors’ employees have been offered employment. When a contractor is terminated, the contractor must provide a list of employees at the site to the person or company to whom they are providing services. The successor must also maintain a list of employees employed at the site, including a list of the many terminated employees who were not retained (stating the reason why they were not retained.)
California Property Service Workers Protection Act (California Labor Code §§ 1420 et seq.)
In 2016, the Property Service Workers Protection Act (PSWPA”) was adopted. It was modified in 2017, as set forth below. Other than record retention, PSWPA’s next compliance date is July 1, 2018.
Commencing January 1, 2017, janitorial employers are required to keep accurate records for three (3) years consisting of: (A) names and addresses of all employees engaged in rendering actual services for any business of the employer, (B) daily hours worked, including the times the employee begins and ends each work day, (C) wages paid each payroll period, (D) ages of any minor employees, and (E) any other conditions of employment (job descriptions, workplace injuries, and similar type of records). In the case of subcontractors, under probable application of Labor Code §2810.3, if the employer is considered a “client employer” under California’s unique joint employer statute, a copy of the same records should be maintained by the client employer for the subcontractor employees, together with proof of workers’ compensation insurance, for every subcontractor performing work for the client employer from and after January 1, 2017.
Covered janitorial employers must register with the California Labor Commissioner. The registration fee is $500. Additional information is required in the application. Registration must occur no later than July 1, 2018 (which is a Sunday). The Division of Labor Standards Enforcement has not yet published the application.
Distribution of Sexual-Harassment Prevention Pamphlet:
Commencing July 1, 2018, and until the Division of Labor Standard Enforcement (“DLSE”) establishes further training requirements, employers must provide employees with the Department of Fair Employment & Housing (“DFEH”) Sexual-Harassment Prevention Pamphlet. The current version of this pamphlet can be obtained at the following address: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH_SexualHarassmentPamphlet.pdf. It is also available in Chinese, Korean, Spanish, Tagalog and Vietnamese on the DFEH website.
By January 1, 2019, the DLSE must develop a biannual, in-person sexual violence and harassment prevention training for employees and employers. Once the training gets developed, there will likely be further announcements and input from the janitorial industry. At the present time, there are no training programs published by the DLSE related to the janitorial industry. Currently, the only “required” sexual harassment and discrimination prevention training is the standard supervisor training, which amounts to two hours of mandatory training upon elevation to supervision responsibility and then every two years thereafter. Effective in 2018, the training must include a discussion of harassment based upon gender identity, gender expression and sexual orientation. It also requires some type of workplace violence prevention training.
Leech Tishman’s Employment Practice Group can help clients ensure compliance with California’s complex and technical employment laws and can assist clients with defending against civil or administrative actions.
If you have any questions regarding California’s unique employment laws or these employment law updates, please contact Philip Toomey. Phil serves as Leech Tishman’s West Coast Business & Employment Client Relations Partner and practices in the firm’s Employment, Corporate, Litigation and Real Estate Practice Groups. Phil is based in the Leech Tishman’s El Segundo, CA office. He can be reached at 424.738.4400 or firstname.lastname@example.org.
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