Bill No.
19-12
Concerning: Human Rights and Civil
Liberties
Displaced
Service
Workers
Revised: September 18, 2012 Draft No.
L
Introduced:
May 15, 2012
Enacted:
September 18. 2012
Executive:
September 21,2012
Effective:
December 21,2012
Sunset Date:
--!..:N~on~e::.-
_ _ _ _ __
Ch.
--.1L,
Laws of Mont. Co.
2012
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmembers Ervin, Rice, Elrich, Riemer and Navarro
AN
ACT to:
(1)
(2)
(3)
(4)
require certain contractors to retain certain service workers for a transition period;
provide enforcement by the Office of Human Rights and the Human Rights
Commission;
authorize the Human Rights Commission to award certain relief; and
generally regulate the displacement of certain service workers by a covered
employer.
By amending
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Sections 27-7 and 27-8, and
By adding
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Article X, Displaced Service Workers
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
* * *
The County Council for Montgomery County, Maryland approves the following Act:
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BILL NO.
19-12
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Sec.
1.
Sections 27-7 and 27-8 are amended and Chapter 27, Article
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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
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enforce this Article or Article
Xt
may
file with the Director a written
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complaint, sworn to or affmned under the penalties of perjury, that must
state:
(1) the particulars ofthe 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.
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(t)
(1 )
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Initial determination, dismissal before hearing.
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.
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(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)
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dismiss the complaint without a hearing;
order the Director to investigate further; or
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(B)
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BILL
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(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]
Article or Article X occurred.
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violation of this
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(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.
*
*
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(a)
Damages and other relieffor complainant.
After finding a violation
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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:
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*
(F)
*
*
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financial losses resulting from the discriminatory act or
violation of Article X; and
(G)
interest on any damages
(c);
from
the date
of the
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discriminatory act or violation, as provided in subsection
(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
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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
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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.
27-64.
Definitions.
*
*
DISPLACED SERVICE WORKERS PROTECTION ACT.
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!ill
As used in this Article:
Awarding authority
means any person that awards or enters into
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service contract or subcontract with
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contractor to be performed in the
County.
Awarding authority
includes the County. but does not include
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Federal, State, [[County,)) or municipal government. or a common
ownership community. as defined in Section 10B-2(b)'
Contractor
means any person, including
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subcontractor, which enters
into
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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
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service contract.
Service contract
means
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contract between an awarding authority and
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contractor to provide security, janitorial, building maintenance, food
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BILL No. 19-12
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preparation, or non-professional health care services in
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facility located
in the County which is used as a:
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private school;
hospital, nursing care facility, or other health care provider;
institution, such as
or music hall;
multi-family residential building or complex with more than 30
units; or
commercial building or office building occupying more than
75,000 square feet.
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museum, convention center, arena, airport,
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Service employee
means an individual employed on
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full or part-time
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basis by
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contractor as a:
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building service employee, including
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janitor, security officer,
groundskeeper, door staff, maintenance technician, handyman,
superintendent, elevator operator, window cleaner, or building
engmeer;
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food service worker, including
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cafeteria attendant, line
attendant, cook, butcher, baker, server, cashier, catering worker,
dining attendant, dishwasher, or merchandise vendor;
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non-professional employee performing health care or related
servIce.
Service employee
does not include:
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managerial
or confidential employee;
an employee who works m an executive, administrative, or
professional capacity;
an employee who earns more than $30 per hour; or
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(±}
an employee who is regularly scheduled to work less than
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hours per week.
Successor contractor
means
!!
contractor that:
ill
is awarded
!!
service contract to provide, in whole or in part,
services that are substantially similar to those provided at any
time during the previ ous 90 days;
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has purchased or acquired control of
!!
property located in the
County where service employees were employed at any time
during the previous 90 days; or
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terminates
!!
service contract and hires service employees as its
direct employees to perform services that are substantially
similar, within 90 days after
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service contract is terminated or
cancelled.
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(hl
This Article does not limit the ability of an awarding authority to
terminate a service contract or replace
!!
contractor with another
contractor.
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27-65.
Transition employment period.
.w
Awarding authority.
At least
U
days before a servIce contract IS
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terminated, an awarding authority must:
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request the terminated contractor to give the successor contractor
!!
complete list of the name, date of hire, and job classification of
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each service employee working on the service contract;
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give the successor contractor
!!
complete list of the name, date of
hire, and job classification of each service employee of the
terminated contractor working on the service contract;
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ill
notify the collective bargaining representative, if any, of the
affected service employees of the pending termination of the
service contract; and
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ensure that the terminated contractor conspicuously posts. at any
affected work site,
f!
written notice to all affected servIce
employees describing the pending termination of the servIce
contract and the employee rights provided
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this Article [[is
conspicuously posted at any affected work site]],:
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Where the County is the awarding authority in this Section:
LA.J
Ifflrzinated or cancelled
means a termination for default
termination for convenience.
Or
mutual termination as
defmed in Chapter 11 B and the County procurement
regulations; and
(ill
this Section does not apply to a County service contract
awarded by an emergency procurement or direct purchase
as defined in Chapter
lIB
and . the County procurement
regulations.
(Q)
Successor contractor.
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Subject to paragraph
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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.
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Each successor contractor must gIVe each affected servIce
employee
f!
written offer of employment for the 90-day transition
~iod
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and send
f!
fQPY
to the employee's collective bargaining
representative, if any. Each offer must:
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CA)
state the date
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which the service employee must accept
the offer; and
(ID
allow the employee at least 10 days after receiving the
notice
to
accept the offer.
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Each successor contractor may.:
tAl
[[retain]] offer employment to less than all of the affected
service employees during the 90 day transition period if
the successor contractor:
ll1.A111
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finds that fewer servIce employees are
required to perform the work than the terminated
contractor had employed;
[[(ID]]
!ill
[[retains service employees
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seniority
within each job classification;])
[[(g
Ciii)]] maintains
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preferential hiring list of those
employees not retained; and
nCD)
(iv)l1 (iii)
hires any additional service employees
from the list[[.'l in order of seniority,]] until all
affected service employees have been offered
employment; and
!1ll
refuse to retain a service employee who fails a pre­
employment ineligibilitytest administered by the successor
contractor ifthe successor contractor:
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routinely requires all service employees to undergo
the ineligibility test as a condition of employment;
and
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ill)
.adQpted the ineligibility test as part of a written
employment policy prior to bidding on the successor
contract.
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Each successor contractor must not discharge
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service employee
retained under this Section without just cause during the
transition period.
27-66.
Enforcement.
A service employee who was not [[retained]] offered employment or who was
during the transition period
[L.
or who was discharged]] in violation of
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this Article, may file
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complaint with the Director under Section 27-7.
Roger
Date
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Approved:
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This is a correct copy ofCouncil action.
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Linda M. Lauer, Clerk of the Council
Date
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