Senate Bill S2225

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2225
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 23, 2019
                                ___________
 
 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:

   Section  1.  Legislative  findings  and intent. The legislature hereby
 finds that the volatility of the real estate industry coupled  with  new
 trends   in  the  service  economy  are  undermining  stable  employment
 relationships and creating a drain on an  already  over-burdened  social
 services system. At a time of great uncertainty, it is the policy of the
 state  to  promote stability in employment for building service workers,
 which will reduce the need for social services resulting from  unemploy-
 ment, and promote stability in the service industry.
   § 2. The labor law is amended by adding a new section 202-n to read as
 follows:
   §  202-N.  DISPLACED BUILDING SERVICE WORKERS. 1. FOR PURPOSES OF THIS
 SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "BUILDING SERVICE" MEANS WORK PERFORMED  IN  CONNECTION  WITH  THE
 CARE  OR  MAINTENANCE  OF  AN EXISTING BUILDING AND INCLUDES, BUT IS NOT
 LIMITED TO, WORK PERFORMED  BY  A  WATCHMAN,  GUARD,  DOORMAN,  BUILDING
 CLEANER,  PORTER, HANDYMAN, JANITOR, GARDENER, GROUNDSKEEPER, STATIONARY
 FIREMAN, ELEVATOR OPERATOR AND STARTER, WINDOW CLEANER, AND  SUPERINTEN-
 DENTS.
   (B)  "BUILDING  SERVICE  CONTRACT" MEANS A CONTRACT LET TO ANY COVERED
 EMPLOYER FOR THE FURNISHING  OF  BUILDING  SERVICES,  AND  INCLUDES  ANY
 SUBCONTRACTS FOR SUCH SERVICES.
   (C)  "BUILDING  SERVICE CONTRACTOR" MEANS ANY PERSON WHO ENTERS INTO A
 BUILDING SERVICE CONTRACT.
   (D) "BUILDING SERVICE EMPLOYEE" MEANS ANY PERSON EMPLOYED AS A  BUILD-
 ING  SERVICE  EMPLOYEE  BY  A  COVERED  EMPLOYER  WHO HAS BEEN REGULARLY
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08142-01-9

 S. 2225                             2
 
 ASSIGNED TO A BUILDING ON A FULL OR PART-TIME BASIS FOR AT LEAST  NINETY
 DAYS  IMMEDIATELY PRECEDING ANY TRANSITION IN EMPLOYMENT SUBJECT TO THIS
 SECTION EXCEPT FOR: (I) PERSONS  WHO  ARE  MANAGERIAL,  SUPERVISORY,  OR
 CONFIDENTIAL  EMPLOYEES, PROVIDED THAT THIS EXEMPTION SHALL NOT APPLY TO
 BUILDING SUPERINTENDENTS OR RESIDENT MANAGERS, (II) PERSONS  EARNING  IN
 EXCESS  OF  TWENTY-FIVE  DOLLARS  PER  HOUR FROM A COVERED EMPLOYER, AND
 (III) PERSONS REGULARLY SCHEDULED TO WORK FEWER  THAN  EIGHT  HOURS  PER
 WEEK AT A BUILDING.
   (E) "COVERED EMPLOYER" MEANS ANY PERSON WHO OWNS OR MANAGES REAL PROP-
 ERTY,  EITHER ON ITS OWN BEHALF OR FOR ANOTHER PERSON, WITHIN THE STATE,
 INCLUDING, BUT NOT LIMITED TO, HOUSING COOPERATIVES, CONDOMINIUM ASSOCI-
 ATIONS, BUILDING MANAGING AGENTS, AND ANY BUILDING  SERVICE  CONTRACTOR,
 PROVIDED, HOWEVER, THAT THE REQUIREMENTS OF THIS SECTION SHALL NOT APPLY
 TO:  (I) RESIDENTIAL BUILDINGS OF LESS THAN FIFTY UNITS, (II) COMMERCIAL
 OFFICE, INSTITUTIONAL OR RETAIL BUILDINGS OF LESS THAN ONE HUNDRED THOU-
 SAND SQUARE FEET, (III) ANY BUILDING IN WHICH ANY  GOVERNMENTAL  ENTITY,
 THE  HEAD  OR  MAJORITY OF MEMBERS OF WHICH ARE APPOINTED BY ONE OR MORE
 OFFICERS OF THE STATE, OCCUPIES FIFTY PERCENT OR MORE  OF  THE  RENTABLE
 SQUARE  FOOTAGE,  OR  (IV) TO THE EXTENT THAT SUCH REQUIREMENTS CONFLICT
 WITH SECTION ONE HUNDRED SIXTY-TWO OF THE STATE FINANCE LAW.
   (F) "PERSON" MEANS ANY INDIVIDUAL, PROPRIETORSHIP, PARTNERSHIP,  JOINT
 VENTURE,  CORPORATION, LIMITED LIABILITY COMPANY, TRUST, ASSOCIATION, OR
 OTHER ENTITY THAT MAY EMPLOY PERSONS OR ENTER  INTO  SERVICE  CONTRACTS,
 BUT  SHALL  NOT INCLUDE ANY MUNICIPALITY, THE STATE OF NEW YORK, AND THE
 FEDERAL GOVERNMENT OR ANY OTHER GOVERNMENTAL ENTITY, OR  ANY  INDIVIDUAL
 OR ENTITY MANAGING REAL PROPERTY FOR A GOVERNMENTAL ENTITY.
   (G)  "SUCCESSOR  EMPLOYER" MEANS A COVERED EMPLOYER THAT: (I) HAS BEEN
 AWARDED A BUILDING SERVICE CONTRACT TO PROVIDE, IN  WHOLE  OR  IN  PART,
 BUILDING SERVICES THAT ARE SUBSTANTIALLY SIMILAR TO THOSE PROVIDED UNDER
 A  SERVICE  CONTRACT  THAT  HAS  RECENTLY  BEEN  TERMINATED, OR (II) HAS
 PURCHASED OR ACQUIRED CONTROL OF A PROPERTY IN  WHICH  BUILDING  SERVICE
 EMPLOYEES WERE EMPLOYED.
   2.  (A)  NO  LESS  THAN  FIFTEEN  CALENDAR DAYS BEFORE TERMINATING ANY
 BUILDING SERVICE CONTRACT, ANY COVERED EMPLOYER SHALL REQUEST THE TERMI-
 NATED CONTRACTOR TO PROVIDE TO THE SUCCESSOR EMPLOYER A FULL  AND  ACCU-
 RATE  LIST  CONTAINING  THE  NAME, ADDRESS, DATE OF HIRE, AND EMPLOYMENT
 OCCUPATION CLASSIFICATION OF EACH BUILDING  SERVICE  EMPLOYEE  CURRENTLY
 EMPLOYED AT THE SITE OR SITES COVERED BY THE TERMINATED CONTRACT.
   (B)  NO LESS THAN FIFTEEN CALENDAR DAYS BEFORE TRANSFERRING A CONTROL-
 LING INTEREST IN ANY COVERED BUILDING IN WHICH BUILDING SERVICES EMPLOY-
 EES ARE EMPLOYED, ANY COVERED EMPLOYER SHALL PROVIDE  TO  THE  SUCCESSOR
 EMPLOYER  A FULL AND ACCURATE LIST CONTAINING THE NAME, ADDRESS, DATE OF
 HIRE, AND EMPLOYMENT OCCUPATION CLASSIFICATION OF EACH BUILDING  SERVICE
 EMPLOYEE CURRENTLY EMPLOYED AT THE SITE OR SITES COVERED BY THE TRANSFER
 OF CONTROLLING INTEREST.
   (C)  NO  MORE  THAN SEVEN CALENDAR DAYS AFTER NOTICE THAT ITS BUILDING
 SERVICE CONTRACT HAS BEEN TERMINATED, ANY COVERED EMPLOYER SHALL PROVIDE
 TO THE SUCCESSOR EMPLOYER A FULL AND ACCURATE LIST CONTAINING THE  NAME,
 ADDRESS,  DATE OF HIRE, AND EMPLOYMENT OCCUPATION CLASSIFICATION OF EACH
 BUILDING SERVICE EMPLOYEE EMPLOYED ON THE NOTICE DATE  AT  THE  SITE  OR
 SITES COVERED BY THE TERMINATED BUILDING SERVICE CONTRACT.
   (D)  WHEN  PROVIDING  THE NOTICE REQUIRED UNDER THIS SUBDIVISION, EACH
 COVERED EMPLOYER SHALL ENSURE THAT A NOTICE TO BUILDING SERVICE  EMPLOY-
 EES  IS  POSTED SETTING FORTH THE RIGHTS PROVIDED UNDER THIS SECTION AND
 WHICH INCLUDES A COPY OF THE LIST PROVIDED  UNDER  THE  PRECEDING  PARA-
 GRAPHS,  AND THAT SUCH NOTICE IS ALSO PROVIDED TO THE EMPLOYEES' COLLEC-

 S. 2225                             3
 
 TIVE BARGAINING REPRESENTATIVE, IF ANY. THE NOTICE  AND  LIST  SHALL  BE
 POSTED  IN  THE SAME LOCATION AND MANNER THAT OTHER STATUTORILY REQUIRED
 NOTICES TO EMPLOYEES ARE POSTED AT THE AFFECTED BUILDING OR BUILDINGS.
   (E)  A  SUCCESSOR  EMPLOYER  SHALL  RETAIN FOR A NINETY DAY TRANSITION
 EMPLOYMENT PERIOD AT THE AFFECTED BUILDING OR BUILDINGS  THOSE  BUILDING
 SERVICE  EMPLOYEE  OR  EMPLOYEES  OF  THE  TERMINATED  BUILDING  SERVICE
 CONTRACTOR (AND ITS SUBCONTRACTORS), OR OTHER COVERED EMPLOYER, EMPLOYED
 AT THE BUILDING OR BUILDINGS COVERED BY THE TERMINATED BUILDING  SERVICE
 CONTRACT OR OWNED OR OPERATED BY THE FORMER COVERED EMPLOYER.
   (F) IF AT ANY TIME THE SUCCESSOR EMPLOYER DETERMINES THAT FEWER BUILD-
 ING  SERVICE  EMPLOYEES ARE REQUIRED TO PERFORM BUILDING SERVICES AT THE
 AFFECTED BUILDING OR BUILDINGS THAN HAD BEEN  PERFORMING  SUCH  SERVICES
 UNDER THE FORMER EMPLOYER, THE SUCCESSOR EMPLOYER SHALL RETAIN THE PRED-
 ECESSOR  BUILDING  SERVICE EMPLOYEES BY SENIORITY WITHIN JOB CLASSIFICA-
 TION; PROVIDED, THAT DURING  SUCH  NINETY  DAY  TRANSITION  PERIOD,  THE
 SUCCESSOR  EMPLOYER  SHALL  MAINTAIN A PREFERENTIAL HIRING LIST OF THOSE
 BUILDING SERVICE EMPLOYEES NOT RETAINED AT THE BUILDING OR BUILDINGS WHO
 SHALL BE GIVEN A RIGHT OF FIRST REFUSAL TO ANY JOBS WITHIN THEIR CLASSI-
 FICATIONS THAT BECOME AVAILABLE DURING THAT PERIOD.
   (G) EXCEPT AS PROVIDED IN PARAGRAPH (F) OF  THIS  SUBDIVISION,  DURING
 SUCH  NINETY  DAY  PERIOD,  THE SUCCESSOR CONTRACTOR SHALL NOT DISCHARGE
 WITHOUT CAUSE AN EMPLOYEE RETAINED PURSUANT TO THIS SECTION.
   (H) AT THE END OF THE NINETY  DAY  TRANSITION  PERIOD,  THE  SUCCESSOR
 EMPLOYER SHALL PERFORM A WRITTEN PERFORMANCE EVALUATION FOR EACH EMPLOY-
 EE  RETAINED  PURSUANT  TO  THIS  SECTION. IF THE EMPLOYEE'S PERFORMANCE
 DURING SUCH NINETY DAY PERIOD IS SATISFACTORY, THE SUCCESSOR  CONTRACTOR
 SHALL OFFER THE EMPLOYEE CONTINUED EMPLOYMENT UNDER THE TERMS AND CONDI-
 TIONS ESTABLISHED BY THE SUCCESSOR EMPLOYER OR AS REQUIRED BY LAW.
   3.  (A)  A  BUILDING  SERVICE  EMPLOYEE WHO HAS BEEN DISCHARGED OR NOT
 RETAINED IN VIOLATION OF THIS SECTION MAY BRING  AN  ACTION  IN  SUPREME
 COURT  AGAINST  A  SUCCESSOR  CONTRACTOR  AND/OR  COVERED  EMPLOYER  FOR
 VIOLATION OF ANY OBLIGATION IMPOSED PURSUANT TO THIS SECTION.
   (B) THE COURT SHALL HAVE  AUTHORITY  TO  ORDER  INJUNCTIVE  RELIEF  TO
 PREVENT OR REMEDY A VIOLATION OF ANY OBLIGATION IMPOSED PURSUANT TO THIS
 SECTION.
   (C) IF THE COURT FINDS THAT BY REASON OF A VIOLATION OF ANY OBLIGATION
 IMPOSED  PURSUANT TO SUBDIVISION TWO OF THIS SECTION, A BUILDING SERVICE
 EMPLOYEE HAS BEEN DISCHARGED  OR  NOT  RETAINED  IN  VIOLATION  OF  THIS
 SECTION, IT SHALL AWARD:
   (I)  BACK PAY 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.
   (II) COSTS OF BENEFITS THE SUCCESSOR EMPLOYER WOULD HAVE INCURRED  FOR
 THE EMPLOYEE UNDER THE SUCCESSOR CONTRACTOR'S OR EMPLOYER'S BENEFIT PLAN
 OR PLANS.
   (III)  THE  BUILDING  SERVICE EMPLOYEE'S REASONABLE ATTORNEYS FEES AND
 COSTS.
   (D) IN ANY SUCH ACTION, THE COURT SHALL HAVE AUTHORITY  TO  ORDER  THE
 TERMINATED  CONTRACTOR  OR  FORMER  EMPLOYER  TO  PROVIDE  THE SUCCESSOR
 EMPLOYER WITH THE INFORMATION REQUIRED PURSUANT TO  SUBDIVISION  TWO  OF
 THIS SECTION.
   4.  THE PROVISIONS OF THIS SECTION SHALL NOT APPLY: (A) TO ANY SUCCES-
 SOR EMPLOYER THAT, ON OR BEFORE THE EFFECTIVE DATE OF  THE  TRANSFER  OF
 CONTROL FROM A PREDECESSOR COVERED EMPLOYER TO THE SUCCESSOR EMPLOYER OR

 S. 2225                             4
 
 THE COMMENCEMENT OF SERVICES BY A SUCCESSOR BUILDING SERVICE CONTRACTOR,
 AGREES TO ASSUME, OR TO BE BOUND BY, THE COLLECTIVE BARGAINING AGREEMENT
 OF THE PREDECESSOR COVERED EMPLOYER COVERING BUILDING SERVICE EMPLOYEES,
 PROVIDED  THAT  THE  COLLECTIVE  BARGAINING AGREEMENT PROVIDES TERMS AND
 CONDITIONS FOR THE DISCHARGE OR LAYING OFF OF EMPLOYEES;  OR  (B)  WHERE
 THERE  IS  NO  EXISTING  COLLECTIVE BARGAINING AGREEMENT AS DESCRIBED IN
 PARAGRAPH (A) OF  THIS  SUBDIVISION,  TO  ANY  SUCCESSOR  EMPLOYER  THAT
 AGREES,  ON OR BEFORE THE EFFECTIVE DATE OF THE TRANSFER OF CONTROL FROM
 A  PREDECESSOR  COVERED  EMPLOYER  TO  THE  SUCCESSOR  EMPLOYER  OR  THE
 COMMENCEMENT  OF SERVICES BY A SUCCESSOR BUILDING SERVICE CONTRACTOR, TO
 ENTER INTO A NEW COLLECTIVE BARGAINING AGREEMENT COVERING  ITS  BUILDING
 SERVICE  EMPLOYEES,  PROVIDED  THAT  THE COLLECTIVE BARGAINING AGREEMENT
 PROVIDES TERMS AND CONDITIONS FOR THE DISCHARGE OR LAYING OFF OF EMPLOY-
 EES; OR (C) TO ANY SUCCESSOR EMPLOYER WHOSE BUILDING  SERVICE  EMPLOYEES
 WILL  BE  ACCRETED  TO  A BARGAINING UNIT WITH A PRE-EXISTING COLLECTIVE
 BARGAINING AGREEMENT, PROVIDED THAT THE COLLECTIVE BARGAINING  AGREEMENT
 PROVIDES TERMS AND CONDITIONS FOR THE DISCHARGE OR LAYING OFF OF EMPLOY-
 EES;  OR  (D)  TO ANY COVERED EMPLOYER THAT OBTAINS A WRITTEN COMMITMENT
 FROM A SUCCESSOR EMPLOYER THAT THE SUCCESSOR EMPLOYER'S BUILDING SERVICE
 EMPLOYEES WILL BE COVERED BY A COLLECTIVE BARGAINING  AGREEMENT  FALLING
 WITHIN PARAGRAPHS (A), (B), OR (C) OF THIS SUBDIVISION.
   § 3. This act shall take effect immediately.