Bill Text: CA AB1669 | 2015-2016 | Regular Session | Chaptered
Bill Title: Displaced employees: service contracts: collection and transportation of solid waste.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2016-09-30 - Chaptered by Secretary of State - Chapter 874, Statutes of 2016. [AB1669 Detail]
Download: California-2015-AB1669-Chaptered.html
BILL NUMBER: AB 1669 CHAPTERED
BILL TEXT
CHAPTER 874
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2016
APPROVED BY GOVERNOR SEPTEMBER 30, 2016
PASSED THE SENATE AUGUST 16, 2016
PASSED THE ASSEMBLY AUGUST 23, 2016
AMENDED IN SENATE JUNE 27, 2016
AMENDED IN SENATE JUNE 9, 2016
AMENDED IN ASSEMBLY APRIL 28, 2016
AMENDED IN ASSEMBLY MARCH 8, 2016
INTRODUCED BY Assembly Member Roger Hernández
JANUARY 15, 2016
An act to amend Sections 1070, 1071, and 1072 of, to amend the
heading of Chapter 4.6 (commencing with Section 1070) of Part 3 of
Division 2 of, and to add Sections 1075 and 1076 to, the Labor Code,
relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1669, Roger Hernández. Displaced employees: service contracts:
collection and transportation of solid waste.
Existing law requires a local government agency letting a public
transit service contract out to bid to give a bidding preference for
contractors and subcontractors who agree to retain for a specified
period certain employees who were employed to perform essentially the
same services by the previous contractor or subcontractor. Such a
contractor or subcontractor is required to offer employment to those
employees, except for reasonable and substantiated cause. Existing
law requires a successor contractor or subcontractor that determines
that fewer employees are needed than under the prior contract to
retain qualified employees by seniority within the job
classification. The existing contractor is required to provide
prescribed information regarding employment under the existing
service contract to the awarding authority, any entity that the
awarding authority identifies as a bona fide bidder, and the
successor contractor. Existing law authorizes an employee who was not
offered employment or who has been discharged in violation of
existing law, or his or her agent, to bring an action against the
successor contractor or subcontractor in any superior court having
jurisdiction over the successor contractor or subcontractor. Existing
law authorizes an awarding authority to terminate a service contract
under prescribed circumstances.
This bill would expand the application of these provisions to
exclusive contracts for the collection and transportation of solid
waste. The bill would require the information provided to a bona fide
bidder to be made available in writing at least 30 days before bids
for the service contract are due. The bill would establish certain
provisions applicable only to service contracts for the collection
and transportation of solid waste, including limits on the
requirement to retain employees and specified requirements for notice
and opportunity to cure in the context of civil action or
termination. The bill would not apply to contracts awarded before
January 1, 2017, or to contracts for which the bid process has been
completed before January 1, 2017. By requiring local agencies to give
a bidding preference under these provisions to those contractors and
subcontractors for the collection and transportation of solid waste,
this bill would impose a state-mandated local program.
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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The heading of Chapter 4.6 (commencing with Section
1070) of Part 3 of Division 2 of the Labor Code is amended to read:
CHAPTER 4.6. PUBLIC TRANSIT SERVICE CONTRACTS AND CONTRACTS
FOR THE COLLECTION AND TRANSPORTATION OF SOLID WASTE
SEC. 2. Section 1070 of the Labor Code is amended to read:
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.
SEC. 3. Section 1071 of the Labor Code is amended to read:
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.
SEC. 4. Section 1072 of the Labor Code is amended to read:
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.
Nothing in this section requires 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.
SEC. 5. Section 1075 is added to the Labor Code, to read:
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.
SEC. 6. Section 1076 is added to the Labor Code, to read:
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.
SEC. 7. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.
