By Rhonda R. Adato Esq.
The California legislature recently enacted the Property Service Workers Protection Act, which potentially subjects homeowners associations to new regulations regarding janitorial services contracts.
The Act is designed to protect janitorial service workers. Studies have shown that such workers are more vulnerable to harassment, discrimination and wage theft because they (a) often work in isolated conditions at night, (b) they may belong to a minority group, or in some cases be and undocumented immigrants who are less likely to report issues, (c) layers of contracting and subcontracting reduce employer accountability, and (d) the industry’s culture has historically featured poorly trained managers, inadequate or nonexistent sexual harassment policies, unfair investigations, and retaliation.
“Employers” are defined under the Act as “any person or entity that employs at least one employee and one or more covered workers and that enters into contracts, subcontracts, or franchise arrangements to provide janitorial services.” “Covered workers” are, in turn, defined as “a janitor, including any individual predominantly working, whether as an employee, independent contractor, or a franchisee, as a janitor, as that term is defined in the Service Contract Act Directory of Occupations maintained by the United State Department of Labor.”
New Requirements and Applicability to Homeowners Associations
Effective July 1, 2018, Employers are required to register with the Labor Commissioner of the Division of Labor Standards Enforcement of the California Department Industrial Relations on an annual basis. They are also required to keep certain records on file, and provide sexual harassment training to workers. The Department of Industrial Relations will maintain a public database of property service employers on its website, which will include entity names, addresses, registration numbers, and effective dates of registration.
The law also requires the state to develop a sexual violence and harassment prevention training program for janitorial employers and their workers, effective Jan. 1, 2019. This program will include input from an advisory panel, formed by the state’s director of industrial relations. The training must be conducted every other year.
Homeowners associations may also be subject to the Act. Under Labor Code section 1432(b), “[a]ny person or entity that contracts with an employer who lacks a current and valid registration, as displayed on the online registration database at the time the contract is executed, extended, renewed, or modified, under this part on the date the person or entity enters into or renews a contract or subcontract for janitorial services with the employer is subject to a civil fine of” between $2,000 and $10,000 for a first violation, and between $10,000 and $25,000 for a subsequent violation. Under the Labor Code, homeowners associations that contract with a janitorial services company subject to the Act which is not properly and publically registered with the Department of Industrial Relations could be subject to significant fines.
What Can Associations Do?
Associations may want to consider incorporating provisions requiring janitorial services vendors to comply with the Act in any contractual agreements for cleaning services. They may also want to consider incorporating an indemnification clause into any janitorial services contracts shifting liability onto the janitorial services provider for any violations of the Act. Association should also check the Department of Industrial Relations’ public database before contracting with any janitorial services company prior to executing any type of agreement.
Associations with any specific questions regarding their liability under, or compliance with the Act, should consider reaching out to their legal counsel.
https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB1978 (the Act)
https://www.dir.ca.gov/dlse/Janitorial_Providers_Contractors.html (Department of Industrial Relations website)