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By Rhonda Smith
Sept. 21 — Training janitors how to protect themselves against sexual harassment and assaults at work, often involving their supervisors, is a key component of a new law in California.
Assembly Bill 1978, which California Gov. Jerry Brown (D) signed Sept. 15, is the first state law in the U.S. specifically geared toward eradicating this problem in the janitorial services industry, sources told Bloomberg BNA.
Another major component of the law is a requirement that janitorial service employers pay a $500 fee and register annually with the state’s Division of Labor Standards Enforcement.
Business leaders said that although the law’s intentions are good, it could be time-consuming and costly to adhere to its requirements.
“This is just one more burden,” Ken DeVore, legislative director for the National Federation of Independent Business California, told Bloomberg BNA. “Every imposition on a business creates new costs for them, and new potential liability.”
He added, however: “We don’t believe there should be sexual harassment or assault in any workplace.”
Proponents praised the legislation, sponsored by California State Assemblywoman Lorena Gonzalez (D), saying it holds janitorial contractors, as well as building owners that have agreements with them, more accountable.
In addition to requiring intensive employee training, the law contains registration requirements and fines designed to weed out janitorial service contractors that operate in California’s “underground economy,” or off the books, proponents said. Such contractors don’t always follow the same policies and procedures as their counterparts operating legitimate businesses, they said.
“What we’ve seen in conversations is that women are being exposed to supervisors who take pictures of their genitals and send it to them, or make them watch porn on their lunch break,” Lilia Garcia-Brower, executive director of the Maintenance Cooperation Trust Fund, told Bloomberg BNA.
The MCTF is a watchdog group in California whose mission is to abolish illegal and unfair business practices in the janitorial industry, its website states.
Female janitors in California, many of them Latina, aren’t always sure their supervisors’ actions amount to sexual harassment, Alejandra Valles, secretary-treasurer and chief of staff at the Service Employees International Union-United Service Workers West, told Bloomberg BNA.
SEIU-USWW, which has headquarters in Los Angeles and Oakland, Calif., was a key supporter of A.B. 1978.
“Offering qualitative training, versus having an HR person teach this, is precisely what the bill was crafted to do,” Valles said. “It will empower the women and, most important, they will know where they can go for help.”
“Rape on the Night Shift,” a Frontline documentary that first aired in 2015 on PBS, highlighted female janitors who’ve faced similar challenges whether they work for small contractors and subcontractors or large corporations such as New York City-based ABM Industries Inc. or SMS Holdings Corp., in Nashville, Tenn.
Under the new law, effective July 1, 2018, every janitorial contractor in California must register annually with the Department of Industrial Relations and pay a $500 registration fee.
Employers must provide details about their janitorial companies, disclose any legal actions they are facing and, where applicable, provide a federal employer identification number or state employer identification number for the business.
They also must keep accurate records of specific information about their employees for three years.
“To the responsible business owner this will seem like common sense,” Garcia-Brower said. “But with the underground economy and fly-by-night contractors in California that’s a big step forward.”
Employers that don’t register with the state DIR annually are subject to civil fines ranging from $100 to $10,000.
“A subcontracting system that awards contracts to the lowest bidder, the practice of operating ‘underground’ or off the books, and minimal profit margins all serve to keep wages low and hazards unchecked throughout the property services industry,” a March report from the University of California Berkeley’s Center for Labor Research and Education said.
“This industry dysfunction can also manifest itself in the form of sexual harassment and assault of janitors and security officers, often by their own supervisors,” the report said.
A.B. 1978 applies to janitorial companies that have at least one employee and enter into contracts, subcontracts or franchise agreements to provide cleaning services. Covered workers include janitors working as employees, independent contractors or franchisees.
Starting Jan. 1, 2020, affected janitorial service employers must provide workers with in-person, sexual-harassment and violence-prevention training every two years, the new law mandates.
In California, employers already are required to train supervisors about sexual harassment every two years, but not workers, Garcia-Brower said.
“That’s really the most valuable piece in respect to sexual assault and harassment,” she said. “Employers will be required to train every employee and inform them of their policy and the company’s process to resolve this type of dispute.”
The law also stipulates that businesses or entities that contract with unregistered janitorial companies will face civil fines ranging from $2,000 to $25,000. This creates joint liability affecting building owners as well as the contractors they hire to perform janitorial services, Garcia-Brower said.
Representatives for the Building Owners and Managers Association of California didn’t respond to Bloomberg BNA’s requests for comment.
BOMA California was part of a coalition of business organizations that initially opposed A.B. 1978. After the bill was amended, which DeVore of California’s NFIB affiliate said significantly narrowed its focus, coalition members agreed to neither oppose nor support it.
In addition to the California Chamber of Commerce, coalition members included the California Automakers’ Wholesalers Association (CAWA), California Business Properties Association, International Council of Shopping Centers, Commercial Real Estate Development Association, and California’s NFIB affiliate.
“AB 1978 originally included severe violation liabilities for small businesses regarding retention of building maintenance companies,” Jennifer Zins, CAWA director of government affairs, told Bloomberg BNA in an e-mail message. “There were other unprecedented standards that simply far exceed the need to address issues in the underground economy such as excessive daily penalties, onerous training and document retention requirements, and extensive registration disclosures.”
Paul Greenland, immediate past president of the Building Service Contractors Association International, said, “The intent of the law is good; the implementation sounds punitive on the industry.”
Greenland is also president of Aetna Integrated Services, a property services company based in Columbus, Ohio, that employs 1,500 workers.
“We’re also not in favor of extra government regulations, certainly that affect only our industry,” Greenland said.
“Employees in other industries work by themselves,” he added, citing security guards, telemarketers, and gas station and mini-mart attendants. “Shouldn’t we be teaching sexual harassment to all employees?”
Several factors increase the risk of sexual harassment and assault among janitors and security officers in particular, said a May report by the Labor Occupational Health Program at the University of California, Berkeley.
The factors include working in isolation at night, and layers of contracting and subcontracting that “create less accountability on the part of employers,” the report said.
Being female, Latina, an immigrant, and/or undocumented also can make it less likely that workers will report harassment, the researchers said, because they fear “retaliation, language barriers, or lack of familiarity with their rights or resources available to them.”
In addition, some parts of the janitorial services industry can include a workplace culture composed of “poorly trained managers and supervisors, inadequate or nonexistent sexual harassment policies, unfair investigations that humiliate workers, and retaliatory threats,” the report said.
For the first time, SEIU-USWW’s two four-year master janitorial contracts, which were ratified in May 2016, include detailed language stipulating how sexual harassment and related complaints will be handled by the union and employers that signed them, said Mark Sharwood, the organization’s bargaining director.
Among an estimated 150,000 janitors employed in California, SEIU-USWW represents 22,000, Valles said.
Similar language also is included in a bargaining agreement between SEIU Local 87 and maintenance contractors that covers some 3,000 janitors who clean office buildings in downtown San Francisco, Olga Miranda, the local’s president, told Bloomberg BNA in August.
“Whether and how companies have actually started to change their practices or take this issue more seriously, the proof will be in the pudding over the next couple of years because of the new legislation and the new provisions in the master contracts that address sexual harassment,” Jennifer Reisch, legal director of Equal Rights Advocate, a nonprofit legal advocacy organization in San Francisco, told Bloomberg BNA.
Reisch was co-lead counsel in a lawsuit against ABM Industries on behalf of Maria Bojorquez, a janitor who won a jury verdict of $812,001 in May 2012.
In a separate legal case that year, ABM Industries, along with two of its subsidiaries, ABM Janitorial Services Inc. and ABM Janitorial Services Northern California Inc., agreed to pay $5.8 million and provide other relief to a class of 21 Hispanic female janitors.
In the lawsuit involving the 21 janitors, the EEOC alleged that the company permitted sexual harassment of the janitors by male supervisors and co-workers that included the rape of one female employee ( EEOC v. ABM Indus. Inc., E.D. Cal., No. 1:07-cv-01428, settlement announced 9/2/10).
ABM denied wrongdoing in the consent decree.
The company didn’t respond to Bloomberg BNA’s requests for comment about A.B. 1978.
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Text of the California law is available at http://src.bna.com/iEv.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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