Relates to displaced building service workers; requires a successor employer to retain for a ninety day transition employment period at affected buildings, building service employees of the terminated building service contractor (and its subcontractors), or other covered employer, employed at the buildings covered by the terminated building service contract or owned or operated by the former covered employer.
STATE OF NEW YORK
________________________________________________________________________
6782
IN SENATE
February 22, 2016
___________
Introduced by Sen. SANDERS -- read twice and ordered printed, and when
printed to be committed to the Committee on Labor
AN ACT to amend the labor law, in relation to displaced building service
workers
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings and intent. The legislature hereby
2 finds that the volatility of the real estate industry coupled with new
3 trends in the service economy are undermining stable employment
4 relationships and creating a drain on an already over-burdened social
5 services system. At a time of great uncertainty, it is the policy of the
6 state to promote stability in employment for building service workers,
7 which will reduce the need for social services resulting from unemploy-
8 ment, and promote stability in the service industry.
9 § 2. The labor law is amended by adding a new section 202-n to read as
10 follows:
11 § 202-n. Displaced building service workers. 1. For purposes of this
12 section, the following terms shall have the following meanings:
13 (a) "Building service" means work performed in connection with the
14 care or maintenance of an existing building and includes, but is not
15 limited to, work performed by a watchman, guard, doorman, building
16 cleaner, porter, handyman, janitor, gardener, groundskeeper, stationary
17 fireman, elevator operator and starter, window cleaner, and superinten-
18 dents.
19 (b) "Building service contract" means a contract let to any covered
20 employer for the furnishing of building services, and includes any
21 subcontracts for such services.
22 (c) "Building service contractor" means any person who enters into a
23 building service contract.
24 (d) "Building service employee" means any person employed as a build-
25 ing service employee by a covered employer who has been regularly
26 assigned to a building on a full or part-time basis for at least ninety
27 days immediately preceding any transition in employment subject to this
28 section except for: (i) persons who are managerial, supervisory, or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13458-01-5
S. 6782 2
1 confidential employees, provided that this exemption shall not apply to
2 building superintendents or resident managers, (ii) persons earning in
3 excess of twenty-five dollars per hour from a covered employer, and
4 (iii) persons regularly scheduled to work fewer than eight hours per
5 week at a building.
6 (e) "Covered employer" means any person who owns or manages real prop-
7 erty, either on its own behalf or for another person, within the state,
8 including, but not limited to, housing cooperatives, condominium associ-
9 ations, building managing agents, and any building service contractor,
10 provided, however, that the requirements of this section shall not apply
11 to: (i) residential buildings of less than fifty units, (ii) commercial
12 office, institutional or retail buildings of less than one hundred thou-
13 sand square feet, (iii) any building in which any governmental entity,
14 the head or majority of members of which are appointed by one or more
15 officers of the state, occupies fifty percent or more of the rentable
16 square footage, or (iv) to the extent that such requirements conflict
17 with section one hundred sixty-two of the state finance law.
18 (f) "Person" means any individual, proprietorship, partnership, joint
19 venture, corporation, limited liability company, trust, association, or
20 other entity that may employ persons or enter into service contracts,
21 but shall not include any municipality, the state of New York, and the
22 federal government or any other governmental entity, or any individual
23 or entity managing real property for a governmental entity.
24 (g) "Successor employer" means a covered employer that: (i) has been
25 awarded a building service contract to provide, in whole or in part,
26 building services that are substantially similar to those provided under
27 a service contract that has recently been terminated, or (ii) has
28 purchased or acquired control of a property in which building service
29 employees were employed.
30 2. (a) No less than fifteen calendar days before terminating any
31 building service contract, any covered employer shall request the termi-
32 nated contractor to provide to the successor employer a full and accu-
33 rate list containing the name, address, date of hire, and employment
34 occupation classification of each building service employee currently
35 employed at the site or sites covered by the terminated contract.
36 (b) No less than fifteen calendar days before transferring a control-
37 ling interest in any covered building in which building services employ-
38 ees are employed, any covered employer shall provide to the successor
39 employer a full and accurate list containing the name, address, date of
40 hire, and employment occupation classification of each building service
41 employee currently employed at the site or sites covered by the transfer
42 of controlling interest.
43 (c) No more than seven calendar days after notice that its building
44 service contract has been terminated, any covered employer shall provide
45 to the successor employer a full and accurate list containing the name,
46 address, date of hire, and employment occupation classification of each
47 building service employee employed on the notice date at the site or
48 sites covered by the terminated building service contract.
49 (d) When providing the notice required under this subdivision, each
50 covered employer shall ensure that a notice to building service employ-
51 ees is posted setting forth the rights provided under this section and
52 which includes a copy of the list provided under the preceding para-
53 graphs, and that such notice is also provided to the employees' collec-
54 tive bargaining representative, if any. The notice and list shall be
55 posted in the same location and manner that other statutorily required
56 notices to employees are posted at the affected building or buildings.
S. 6782 3
1 (e) A successor employer shall retain for a ninety day transition
2 employment period at the affected building or buildings those building
3 service employee or employees of the terminated building service
4 contractor (and its subcontractors), or other covered employer, employed
5 at the building or buildings covered by the terminated building service
6 contract or owned or operated by the former covered employer.
7 (f) If at any time the successor employer determines that fewer build-
8 ing service employees are required to perform building services at the
9 affected building or buildings than had been performing such services
10 under the former employer, the successor employer shall retain the pred-
11 ecessor building service employees by seniority within job classifica-
12 tion; provided, that during such ninety day transition period, the
13 successor employer shall maintain a preferential hiring list of those
14 building service employees not retained at the building or buildings who
15 shall be given a right of first refusal to any jobs within their classi-
16 fications that become available during that period.
17 (g) Except as provided in paragraph (f) of this subdivision, during
18 such ninety day period, the successor contractor shall not discharge
19 without cause an employee retained pursuant to this section.
20 (h) At the end of the ninety day transition period, the successor
21 employer shall perform a written performance evaluation for each employ-
22 ee retained pursuant to this section. If the employee's performance
23 during such ninety day period is satisfactory, the successor contractor
24 shall offer the employee continued employment under the terms and condi-
25 tions established by the successor employer or as required by law.
26 3. (a) A building service employee who has been discharged or not
27 retained in violation of this section may bring an action in supreme
28 court against a successor contractor and/or covered employer for
29 violation of any obligation imposed pursuant to this section.
30 (b) The court shall have authority to order injunctive relief to
31 prevent or remedy a violation of any obligation imposed pursuant to this
32 section.
33 (c) If the court finds that by reason of a violation of any obligation
34 imposed pursuant to subdivision two of this section, a building service
35 employee has been discharged or not retained in violation of this
36 section, it shall award:
37 (i) Back pay for each day during which the violation continues, which
38 shall be calculated at a rate of compensation not less than the higher
39 of: (1) the average regular rate of pay received by the employee during
40 the last three years of the employee's employment in the same occupation
41 classification; or (2) the final regular rate received by the employee.
42 (ii) Costs of benefits the successor employer would have incurred for
43 the employee under the successor contractor's or employer's benefit plan
44 or plans.
45 (iii) The building service employee's reasonable attorneys fees and
46 costs.
47 (d) In any such action, the court shall have authority to order the
48 terminated contractor or former employer to provide the successor
49 employer with the information required pursuant to subdivision two of
50 this section.
51 4. The provisions of this section shall not apply: (a) to any succes-
52 sor employer that, on or before the effective date of the transfer of
53 control from a predecessor covered employer to the successor employer or
54 the commencement of services by a successor building service contractor,
55 agrees to assume, or to be bound by, the collective bargaining agreement
56 of the predecessor covered employer covering building service employees,
S. 6782 4
1 provided that the collective bargaining agreement provides terms and
2 conditions for the discharge or laying off of employees; or (b) where
3 there is no existing collective bargaining agreement as described in
4 paragraph (a) of this subdivision, to any successor employer that
5 agrees, on or before the effective date of the transfer of control from
6 a predecessor covered employer to the successor employer or the
7 commencement of services by a successor building service contractor, to
8 enter into a new collective bargaining agreement covering its building
9 service employees, provided that the collective bargaining agreement
10 provides terms and conditions for the discharge or laying off of employ-
11 ees; or (c) to any successor employer whose building service employees
12 will be accreted to a bargaining unit with a pre-existing collective
13 bargaining agreement, provided that the collective bargaining agreement
14 provides terms and conditions for the discharge or laying off of employ-
15 ees; or (d) to any covered employer that obtains a written commitment
16 from a successor employer that the successor employer's building service
17 employees will be covered by a collective bargaining agreement falling
18 within paragraphs (a), (b), or (c) of this subdivision.
19 § 3. This act shall take effect immediately.
