California-based janitorial workers are entitled to unique protections under the California Labor Code. See below to learn about 3 important California laws that operate to place restrictions on janitorial contractors, give janitorial workers additional protections, and create extra joint-employment liability between a contractor and a client.
The Displaced Janitors Opportunity Act (California Labor Code §§ 1060 et seq.)
The DJOA was enacted in 2002 to prevent mass layoffs of janitorial and maintenance workers when there is a change in contractors at the same facility. Specifically, the rules prohibit at-will termination of personnel by contractors or subcontractors who are awarded janitorial and building maintenance contracts when the new contract is within 30 days of the termination of another contract at the same facility.
The DJOA requires the new contractor or subcontractor, also called a successor employer, to hire and retain the previous contractor’s employees for at least 60 days, with limited exceptions. Those exceptions are when the employee has had less than four (4) months of service at the same facility, or when the successor employer has just cause to refuse the hired employee.
When a janitorial and building maintenance contract is terminated, the contractor must provide a list of employees at the site to the person or company to whom they are providing services (i.e. the client). The successor employer must make a written offer of employment to each employee with a minimum of 10 days for the employees to accept the offer of employment. The DJOA does not require that the successor employer pay the same wages or offer the same benefits as the prior contractor or subcontractor.
During the 60-day period after commencing work under the contract, the successor employer 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.
California Property Service Workers Protection Act (California Labor Code §§ 1420 et seq.)
The PSWPA, enacted in 2016, has a number of rules aimed at protecting janitorial employees.
Commencing in 2017, janitorial employers are required to keep accurate employment records for three (3) years. In the case of subcontractors, in conjunction with Labor Code §2810.3 (discussed below), a copy of the same employment records should be maintained by a client employer for any subcontractor employees, together with proof of subcontractor's workers’ compensation insurance.
Covered janitorial employers must register with the California Labor Commissioner. End users of janitorial services (i.e. clients) may only contract with registered janitorial contractors or face fines. The registration is public and searchable online on the DIR's website. A janitorial contractor can also provide proof of registration.
Sexual-Harassment Prevention Training:
The Division of Labor Standard Enforcement (“DLSE”) is currently finalizing rules on biannual, in-person sexual violence and harassment prevention training for all janitorial employees. At the present time, there are no training programs published by the DLSE related to the janitorial industry. Until the DLSE establishes the training requirements, employers must provide janitorial employees with a sexual-harassment prevention pamphlet. Currently, the only “required” sexual harassment and discrimination prevention training is the standard supervisor training, which is two hours of mandatory biannual training.
Labor Contractor Joint Liability (California Labor Code Section §§ 2810.3)
Labor Code 2810.3, enacted in 2015, operates to make a "client employer” jointly liable for any certain violations by a labor contractor, including a janitorial contractor or subcontractor. Specifically, the client employer must share with their labor contractor all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of accurate wages and any failure to secure valid workers compensation coverage. The law also states that the client employer may not shift certain liabilities under 2810.3 to the labor contractor (i.e. cannot indemnify).
In June 2018, the California Labor Commissioner issued $4.5 million in damages and penalties against the Cheesecake Factory Restaurants, Inc., for wage and hour violations by a janitor subcontractor under 2810.3 even though the Cheesecake Factory never directly contracted with that subcontractor and the janitors were independent contractors.
Please note, the information in this article is not intended to constitute legal advice and should not be relied upon in lieu of consultation with appropriate legal advisors in your own jurisdiction.