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ARTICLE 33C: DISPLACED WORKER PROTECTION

Sec. 3300C.1. Definitions.

Sec. 3300C.2. Transition Employment Period.

Sec. 3300C.3. Enforcement.

Sec. 3300C.4. Successor's Prior Employees.

Sec. 3300C.5. Applicability to Existing Contracts.

Sec. 3300C.6. Severability.

SEC. 3300C.1. DEFINITIONS.

The following definitions shall apply throughout this Article:

(a) "Awarding authority" means any person that awards or otherwise enters into contracts for security and janitorial or building maintenance services performed within the City and County of San Francisco.

(b) "Contractor" means any person that enters into a service contract with the awarding authority and who employs 25 or more persons.

(c) "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 and County of San Francisco 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.

(d) "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.

(e) "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 and County of San Francisco for the services governed by this Article.

(f) "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.

(g) "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.

(h) "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 by Ord. 165-98, App. 5/21/98)

SEC. 3300C.2. TRANSITION EMPLOYMENT PERIOD.

All service contracts covered by this Article 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.

If the terminated contractor has not learned the identity of the successor contractor, if any, by the time that notice was given of the contract termination, the terminated contractor shall obtain such information from the awarding authority. If a successor service contractor has not been awarded by the end of the 10 day period, the employment information referred to earlier in this subsection shall be provided to the awarding authority at such time. 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 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.

(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. "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. 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 shall include a provision in which the contractor agrees to require subcontractors to comply with the obligations imposed by this Article.

(Added by Ord. 165-98, App. 5/21/98)

SEC. 3300C.3. ENFORCEMENT.

(a) An employee who has been discharged in violation of this Article by a successor contractor or its subcontractor may bring an action in the Municipal Court or Superior Court of the State of California, as appropriate, against the successor contractor and, where applicable, its subcontractor, and 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:

(1) 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

(2) The final regular rate received by the employee.

(b) If 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.

(c) This Article is not intended to create a private right of action against the awarding authority.

(Added by Ord. 165-98, App. 5/21/98)

SEC. 3300C.4. SUCCESSOR'S PRIOR EMPLOYEES.

Notwithstanding the provisions of Section 3300C.2, a successor contractor or subcontractor may replace an employee retained pursuant to this Article with a person employed by the contractor or subcontractor continuously for eight months prior to the commencement of the successor service contract or subcontract in a capacity similar to that proposed under the successor service contract or subcontract. This Section shall apply only where the existing employee of the successor contractor or subcontractor would otherwise be laid off work as a result of the award of the successor contract.

(Added by Ord. 165-98, App. 5/21/98)

SEC. 3300C.5. APPLICABILITY TO EXISTING CONTRACTS.

This Article shall only apply to contracts entered into on or after the effective date of this Article.

(Added by Ord. 165-98, App. 5/21/98)

SEC. 3300C.6. SEVERABILITY.

If any severable provision or provisions of this Article or any application thereof is held invalid, such invalidity shall not affect any other provisions or applications of the Article that can be given effect notwithstanding such invalidity.

(Added by Ord. 165-98, App. 5/21/98)