Bill No. 19-12
Concerning: Human Rights and Civil Liberties – Displaced Service Workers
Revised: September 18, 2012 Draft No. 7
Introduced: May 15, 2012
Enacted: September 18, 2012
Executive: September 21, 2012
Effective: December 21, 2012
Sunset Date: None
Ch. 18 , Laws of Mont. Co. 2012
For Montgomery County, Maryland
AN ACT to:
(1) require certain contractors to retain certain service workers for a transition period;
(2) provide enforcement by the Office of Human Rights and the Human Rights Commission;
(3) authorize the Human Rights Commission to award certain relief; and
(4) generally regulate the displacement of certain service workers by a covered employer.
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Sections 27-7 and 27-8, and
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Article X, Displaced Service Workers
Boldface Heading or defined term. Underlining Added to existing law by original bill. [Single boldface
from existing law by original bill. Double
by amendment. [[Double boldface
from existing law or the bill by amendment. *
* * Existing law unaffected by bill.
Boldface Heading or defined term.
Underlining Added to existing law by original bill.
[Single boldface brackets] Deleted from existing law by original bill.
Double underlining Added by amendment.
[[Double boldface brackets]] Deleted from existing law or the bill by amendment.
* * * Existing law unaffected by bill.
Sec. 1. Sections 27-7 and 27-8 are amended and Chapter 27, Article X is added as follows:
27-7. Administration and enforcement.
(a) Filing complaints. Any person subjected to a discriminatory act or practice in violation of this Article, or any group or person seeking to enforce this Article or Article X, may file with the Director a written complaint, sworn to or affirmed under the penalties of perjury, that must state:
(1) the particulars of the alleged violation;
(2) the name and address of the person alleged to have committed the violation; and
(3) any other information required by law or regulation.
* * *
(f) Initial determination, dismissal before hearing.
(1) The Director must determine, based on the investigation, whether reasonable grounds exist to believe that a violation of this Article or Article X occurred and promptly send the determination to the complainant and the respondent.
(2) If the Director determines that there are no reasonable grounds to believe a violation occurred, and the complainant appeals the determination to the Commission within 30 days after the Director sends the determination to the complainant, the Director promptly must certify the complaint to the Commission. The Commission must appoint a case review board to consider the appeal. The board may hear oral argument and must:
(A) dismiss the complaint without a hearing;
(B) order the Director to investigate further; or
(C) set the matter for a hearing by a hearing examiner or the board itself, and consider and decide the complaint in the same manner as if the Director had found reasonable grounds to believe that [discrimination] a violation of this Article or Article X occurred.
(3) If the Director determines that there are reasonable grounds to believe a violation occurred, the Director must attempt to conciliate the matter under subsection (g).
* * *
27-8. Penalties and relief.
(a) Damages and other relief for complainant. After finding a violation of this Article or Article X, the case review board may order the payment of damages (other than punitive damages) and any other relief that the law and the facts warrant, such as:
(1) compensation for:
* * *
(F) financial losses resulting from the discriminatory act or a violation of Article X; and
(G) interest on any damages from the date of the discriminatory act or violation, as provided in subsection (c);
(2) equitable relief to prevent the discrimination or the violation of Article X and otherwise effectuate the purposes of this Chapter;
(3) consequential damages, such as lost wages from employment discrimination or a violation of Article X or higher housing costs from housing discrimination, for up to 2 years after the [discrimination] violation, not exceeding the actual difference in expenses or benefits that the complainant realized while seeking to mitigate the consequences of the [discrimination] violation (such as income from alternate employment or unemployment compensation following employment discrimination); and
(4) any other relief that furthers the purposes of this Article or Article X or is necessary to eliminate the effects of any discrimination prohibited under this Article.
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ARTICLE X. DISPLACED SERVICE WORKERS PROTECTION ACT.
(a) As used in this Article:
Awarding authority means any person that awards or enters into a service contract or subcontract with a contractor to be performed in the County. Awarding authority includes the County, but does not include a Federal, State, [[County,]] or municipal government, or a common ownership community, as defined in Section 10B-2(b).
Contractor means any person, including a subcontractor, which enters into a service contract to be performed in the County and employs more than 20 service employees in the entire company.
Director means the Executive Director of the Office of Human Rights and includes the Executive Director’s designee.
Person means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ persons or enter into a service contract.
Service contract means a contract between an awarding authority and a contractor to provide security, janitorial, building maintenance, food preparation, or non-professional health care services in a facility located in the County which is used as a:
(1) private school;
(2) hospital, nursing care facility, or other health care provider;
(3) institution, such as a museum, convention center, arena, airport, or music hall;
(4) multi-family residential building or complex with more than 30 units; or
(5) commercial building or office building occupying more than 75,000 square feet.
Service employee means an individual employed on a full or part-time basis by a contractor as a:
(1) building service employee, including a janitor, security officer, groundskeeper, door staff, maintenance technician, handyman, superintendent, elevator operator, window cleaner, or building engineer;
(2) food service worker, including a cafeteria attendant, line attendant, cook, butcher, baker, server, cashier, catering worker, dining attendant, dishwasher, or merchandise vendor;
(3) non-professional employee performing health care or related service.
Service employee does not include:
(1) a managerial or confidential employee;
(2) an employee who works in an executive, administrative, or professional capacity;
(3) an employee who earns more than $30 per hour; or
(4) an employee who is regularly scheduled to work less than 10 hours per week.
Successor contractor means a contractor that:
(1) is awarded a service contract to provide, in whole or in part, services that are substantially similar to those provided at any time during the previous 90 days;
(2) has purchased or acquired control of a property located in the County where service employees were employed at any time during the previous 90 days; or
(3) terminates a service contract and hires service employees as its direct employees to perform services that are substantially similar, within 90 days after a service contract is terminated or cancelled.
(b) This Article does not limit the ability of an awarding authority to terminate a service contract or replace a contractor with another contractor.
27-65. Transition employment period.
(a) Awarding authority. At least 15 days before a service contract is terminated, an awarding authority must:
(1) request the terminated contractor to give the successor contractor a complete list of the name, date of hire, and job classification of each service employee working on the service contract;
(2) give the successor contractor a complete list of the name, date of hire, and job classification of each service employee of the terminated contractor working on the service contract;
(3) notify the collective bargaining representative, if any, of the affected service employees of the pending termination of the service contract; and
(4) ensure that the terminated contractor conspicuously posts, at any affected work site, a written notice to all affected service employees describing the pending termination of the service contract and the employee rights provided by this Article [[is conspicuously posted at any affected work site]].
(5) Where the County is the awarding authority in this Section:
(A) terminated or cancelled means a termination for default, termination for convenience, or mutual termination as defined in Chapter 11B and the County procurement regulations; and
(B) this Section does not apply to a County service contract awarded by an emergency procurement or direct purchase as defined in Chapter 11B and the County procurement regulations.
(b) Successor contractor.
(1) Subject to paragraph (3), each successor contractor must offer to retain each affected service employee at an affected site for 90 days or until the successor contract is terminated, whichever is earlier.
(2) Each successor contractor must give each affected service employee a written offer of employment for the 90-day transition period and send a copy to the employee’s collective bargaining representative, if any. Each offer must:
(A) state the date by which the service employee must accept the offer; and
(B) allow the employee at least 10 days after receiving the notice to accept the offer.
(3) Each successor contractor may:
(A) [[retain]] offer employment to less than all of the affected service employees during the 90 day transition period if the successor contractor:
[[(A)]] (i) finds that fewer service employees are required to perform the work than the terminated contractor had employed;
[[(B)]] (ii) [[retains service employees by seniority within each job classification;]]
[[(C) (iii)]] maintains a preferential hiring list of those employees not retained; and
[[(D) (iv)]] (iii) hires any additional service employees from the list[[, in order of seniority,]] until all affected service employees have been offered employment; and
(B) refuse to retain a service employee who fails a pre-employment ineligibility test administered by the successor contractor if the successor contractor:
(i) routinely requires all service employees to undergo the ineligibility test as a condition of employment; and
(ii) adopted the ineligibility test as part of a written employment policy prior to bidding on the successor contract.
(4) Each successor contractor must not discharge a service employee retained under this Section without just cause during the transition period.
A service employee who was not [[retained]] offered employment or who was discharged during the transition period [[, or who was discharged]] in violation of this Article, may file a complaint with the Director under Section 27-7.