Sec. 71.1. Definitions.
Sec. 71.2. Transition Employment Period.
Sec. 71.3. Enforcement.
[Sec. 71.4. Appeal Procedure.]1
Sec. 71.5. Successor’s Prior Employees.
Sec. 71.6. Applicability to Existing Contracts.
Sec. 71.7. Severability.
*Editor’s Note:
Former Police Code Article 33C (“Displaced Worker Protection”) was redesignated as Labor and Employment Code Article 71 by Ord. 221-23, File No. 230835, approved November 3, 2023, effective December 4, 2023, and operative January 4, 2024.
1 Editor’s Note:
The following definitions shall apply throughout this Article 71:
“Agency” means the Office of Labor Standards Enforcement or any successor department or office.
“Awarding authority” means any person that awards or otherwise enters into contracts for security, janitorial, or building maintenance services performed within the City, except that the City is not an “awarding authority” under this Article with respect to City contracts for janitorial services as defined in Labor and Employment Code Section 102.2 or City contracts for security guard services as defined in Labor and Employment Code Section 102.11, because the worker retention requirements for those City contracts are governed by Section 102.1 of the Labor and Employment Code.
“City” means the City and County of San Francisco.
“Contractor” means any person that enters into a service contract with the awarding authority and who employs 25 or more persons.
“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 City under a contract to provide security services, janitorial services, or building maintenance services for the awarding authority. “Employee” does not include a person who is (1) a managerial, supervisory, or confidential employee, including those employees who would be so defined under the Fair Labor Standards Act; or (2) does not possess or has not maintained a required occupational license; or (3) is employed less than 15 hours per week.
“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.
“Public sector contractor” means any person or persons, firm, partnership, corporation, or combination thereof, who enters into a contract with officers or employees empowered by law to enter into contracts for the City for the services governed by this Article.
“Service contract” means a contract let to a contractor by the awarding authority for the furnishing of service (as opposed to the purchase of goods or other property) and that involves an expenditure or receipt in excess of $25,000 per contract and a contract term of at least three months.
“Subcontractor” means any person not an employee who enters into a contract with the contractor to assist the contractor in performing a service contract and that employs employees for such person.
“Successor service contract” means a service contract with the awarding authority where the services to be performed have previously been rendered to the awarding authority as part of the same program or at the same facility under another substantially similar service contract that recently has been terminated or has ended.
(Added as Police Code Sec. 3300C.1 by Ord. 165-98, App. 5/21/98; amended by Ord. 12-12, File No. 111190, App. 2/2/12, Eff. 3/3/12; Ord. 211-16, File No. 160891, App. 10/28/16, Eff. 11/27/16; Ord. 59-23, File No. 230166, App. 4/21/2023, Eff. 5/22/2023; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
All service contracts covered by this Article 71 shall impose the following obligations on the contractor.
(a) Where the awarding authority has given notice that a service contract has been terminated or ended, or where a service contractor has given notice of such termination, upon giving or receiving such notice, as the case may be, the terminated or ending contractor shall, within 10 days thereafter, provide to the successor contractor, the name, date of hire, and employment occupation classification of each employee employed at the site or sites covered by the prospective contractor at the time of contract termination. This provision shall also apply to the subcontractors of the terminated contractor.
To facilitate the provision of this information, the awarding authority, following termination of a service contract and within three days of the hiring of a successor contractor, shall provide the name and address of the successor contractor to the terminated or ending contractor. If a successor service contract has not been awarded by the end of the 10-day period, the employment information referred to earlier in this subsection (a) shall be provided to the awarding authority at such time. Within three days of the hiring of a successor contractor, the awarding authority shall provide the employment information to the successor contractor 1 Where a subcontractor of a service contractor has been terminated prior to the termination of the service contract, the terminated subcontractor shall for purposes of this Article 71 be deemed a terminated contractor.
(b) A successor contractor shall retain, for a 90-day transition employment period, employees who have been employed by the terminated contractor or its subcontractors, if any, for the preceding eight months or longer at the site or sites covered by the contract. This requirement shall be stated by the City in all initial bid packages which are governed by this Article 71.
(c) If at any time a successor public sector contractor determines that fewer employees are required to perform the new service contract than were required by the terminated public sector contractor (and subcontractors, if any), the successor public sector contractor shall retain employees by seniority within job classification.
(d) During such 90-day period, the successor contractor (or subcontractor, where applicable) shall maintain a preferential hiring list of eligible covered employees not retained by the successor contractor (or subcontractor) from which the successor contractor (or subcontractor) shall hire additional employees.
(e) Except as provided in subsection (c) of this Section, during such 90-day period, the successor contractor (or subcontractor, where applicable) shall not discharge without cause an employee retained pursuant to this Article 71. “Cause,” for this purpose, shall include, but not be limited to, the employee’s conduct while in the employ of the terminated contractor or subcontractor that contributed to any decision to terminate the contract or subcontract for fraud or poor performance, excluding permissible union-related activity.
(f) At the end of such 90-day period, a successor public sector contractor (or subcontractor, where applicable) shall perform a written performance evaluation for each employee retained pursuant to this Article 71. If the employee’s performance during such 90-day period is satisfactory, the successor public sector contractor (or subcontractor) shall offer the employee continued employment under the terms and conditions established by the public sector successor contractor (or subcontractor) or as required by law.
(g) All contracts subject to this Article 71 shall include a provision in which the contractor agrees to require subcontractors to comply with the obligations imposed by this Article.
CODIFICATION NOTE
1. So in Ord. 59-23.
(a) Implementation. The Agency shall be authorized to coordinate implementation and enforcement of this Article 71 and may promulgate appropriate rules for such purposes. Any rules promulgated by the Agency shall have the force and effect of law and may be relied on by employers, employees, and other persons to determine their rights and responsibilities under this Article. Any rules may establish procedures for ensuring fair, efficient, and cost-effective implementation of this Article, including supplementary procedures for helping to inform employees of their rights under this Article, for monitoring contractor, subcontractor, and awarding authority compliance with this Article, and for providing administrative hearings to determine whether a contractor, subcontractor, awarding authority, or other person has violated the requirements of this Article.
(b) Administrative Enforcement.
(1) The Agency is authorized to take appropriate steps to enforce this Article 71. The Agency may investigate any possible violations of this Article by an awarding authority, a successor contractor, or a successor contractor’s subcontractor. Where the Agency has reason to believe that a violation has occurred, it may order any appropriate temporary or interim relief to mitigate the violation or maintain the status quo pending completion of a full investigation or hearing.
(2) Where the Agency determines that a violation has occurred, it may issue a determination of violation and order any appropriate relief including, but not limited to, back pay, including the value of benefits, for each day during which the violation continues, which shall be calculated at a rate of compensation not less than the higher of:
(i) The average regular rate of pay received by the employee during the last three years of the employee’s employment in the same occupation classification; or
(ii) The final regular rate received by the employee.
(3) Where the Agency determines that a violation has occurred, it may also authorize the payment of an additional sum as an administrative penalty to each employee or person whose rights under this Article 71 were violated. If any backpay is ordered, the dollar amount of the backpay multiplied by three, or $250, whichever amount is greater, shall be included in the administrative penalty paid to the employee. In addition, if a violation of this Article 71 resulted in other harm to the employee or any other person, or otherwise violated the rights of employees or other persons, this administrative penalty shall also include $50 to each employee or person whose rights under this Article were violated for each day or portion thereof that the violation occurred or continued.
(4) Where prompt compliance is not forthcoming, the Agency may take any appropriate enforcement action to secure compliance, including initiating a civil action pursuant to Section 71.3(c) and/or, except where prohibited by State or Federal law, requesting that City agencies or departments revoke or suspend any registration certificates, permits, or licenses held or requested by the violator until such time as the violation is remedied. In order to compensate the City for the costs of investigating and remedying the violation, the Agency may also order the violator to pay to the City a sum of not more than $50 for each day or portion thereof and for each employee or person as to whom the violation occurred or continued. Such funds shall be allocated to the Agency and used to offset the costs of implementing and enforcing this ordinance.
(5) An employee or other person may report to the Agency any suspected violation of this Article 71. The Agency shall encourage reporting pursuant to this subsection (b)(5) by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the employee or person reporting the violation; provided, however, that with the authorization of such person, the Agency may disclose their name and identifying information as necessary to enforce this Article or for other appropriate purposes.
(6) The remedies and penalties provided under subsections (b)(2) through (b)(4) are cumulative.
(7) The determination of violation shall provide notice of the right to appeal the determination to the Controller, and that failure to do so within 15 days shall result in the determination becoming a final administrative decision.
(8) The determination of violation shall specify a reasonable time period for payment of any relief ordered. The Agency may award interest on all amounts due and unpaid at the expiration of such time period at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, as may be amended from time to time.
(9) The Agency may require that remedies and penalties due and owing to a person whose rights under this Article 71 were violated to be paid directly to the City for disbursement to the person. The Controller shall hold these funds in escrow for the person. The Agency shall make best efforts to distribute such funds. In the event such funds are unclaimed for a period of three years, the Controller may undertake administrative procedures for escheat of unclaimed funds under California Government Code Sections 50050 et seq., as may be amended from time to time. Subject to the budgetary and fiscal provisions of the Charter, such escheated funds shall be dedicated to the enforcement of this Article 71 or other laws the Agency enforces.
(c) Civil Enforcement.
(1) The City Attorney or an employee who has been discharged in violation of this Article 71 by a successor contractor or its subcontractor may bring an action in the Superior Court of the State of California against the successor contractor and, where applicable, the successor contractor’s subcontractor, and an employee may be awarded back pay, including the value of benefits, for each day during which the violation continues, which shall be calculated at a rate of compensation not less than the higher of:
(A) The average regular rate of pay received by the employee during the last three years of the employee’s employment in the same occupation classification; or
(B) The final regular rate received by the employee.
(2) The City Attorney or an employee may bring an action in Superior Court of the State of California against the awarding authority, for an injunction requiring the awarding authority to satisfy its obligations under this Article 71.
(3) If the City Attorney or the employee is the prevailing party in any such legal action, the Court shall award reasonable attorneys’ fees and costs as part of the costs recoverable.
(d) Interest. In any administrative or civil action brought under this Article 71, the Agency or court, as the case may be, shall award interest on all amounts due and unpaid at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, as amended from time to time.
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