HB4241sam005 93RD GENERAL ASSEMBLY

Sen. James A. DeLeo

Filed: 5/11/2004

09300HB4241sam005 LRB093 20358 RXD 50816 a

AMENDMENT TO HOUSE BILL 4241

AMENDMENT NO. ______. Amend House Bill 4241, AS AMENDED, by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Displaced Building Service Workers Protection Act.

Section 5. Definitions. In this Act:

"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, security officer, door staff, building cleaner, maintenance technician, handyman, janitor, elevator operator, window cleaner, building engineer and groundskeeper.

"Building service contract" means a contract let to any covered employer for the furnishing of building services and includes any subcontract for such services.

"Building service contractor" means any person who enters into a building service contract.

"Building service employee" means any person employed as a building service employee by a covered employer who has been regularly assigned to a building on a full or part-time basis for at least 25 working 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 engineers for existing properties, (ii) persons earning in excess of $25 per hour from a covered employer, and (iii) persons regularly scheduled to work fewer than 6 hours per week at a building.

"State of Illinois" means any city, township, administration, department, division, bureau, board or commission, or a corporation, institution, or agency of government, the expenses of which are paid in whole or in part from the State treasury.

"Covered employer" means any person who owns or manages real property, either on its own behalf or for another person, or any person who contracts or subcontracts with an owner or manager of real property within the State of Illinois for real estate, including, but not limited to, housing cooperatives, condominium associations, building managing agents, and any building service contractor provided, however, that the requirements of this Act shall not apply to (i) residential buildings under 50 units, (ii) commercial office, institutional, or retail buildings of less than 75,000 square feet or retail stores or distribution centers, or manufacturing and assembly or warehousing and logistic facilities, or churches, synagogues, mosques, or places of worship, or elementary or secondary schools, (iii) any building in which the State of Illinois or any governmental entity, the head or majority of members of which are appointed by one or more officers of the State of Illinois, occupies 50% or more of the rentable square footage, (iv) any building that is owned or operated by a hospital or hospital affiliate as defined in the Hospital Licensing Act, (v) any building that is owned or operated by a public utility, public utility affiliate, telecommunications carrier, or its affiliate as defined in the Public Utilities Act or independent electric generators, or (vi) any administrative building owned and operated by a manufacturer.

"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 the City of Chicago, the State of Illinois, and the federal government or any other entity, or any individual or entity managing real property for a governmental entity.

"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 property in which building service employees were employed.

Section 10. Protection for building service employees.

(a) No less than 15 calendar days before terminating any building service contract, any covered employer shall request the terminated contractor to provide the successor employer and any collective bargaining representative of any of the affected employees 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 contract.

(b) No less than 15 calendar days before transferring a controlling interest in any covered building in which building service employees are employed, any covered employer shall provide to the successor employer and any collective bargaining representative of any of the affected employees 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) Any covered employer shall provide to the successor employer and any collective bargaining representative of any of the affected employees 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 terminated building service contract no more than 7 calendar days after notice that its building service contract has been terminated.

(d) When providing the notice required under this Section, each covered employer shall ensure that a notice to building service employees is posted setting forth the rights provided under this Section and which includes a copy of the list provided under the proceeding Sections, and that such notice is also provided to the employees' collective 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 site or sites.

(e) A successor employer shall retain for a transition employment period of 25 working days at the affected site or sites those building service employees of the terminated building service contractor and its subcontractors, or other covered employer, employed at the site or sites 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 building service employees are required to perform building services at the affected building than had been performing such services under the former employer, the successor employer shall retain the predecessor building service employees by seniority within job classification; provided that during a transition period of 25 working days, the successor employer shall maintain a preferential hiring list of those building service employees not retained at the building who shall be given a right of first refusal to any jobs within their classification that becomes available during that period.

(g) Except as provided in subsection (f), during such period of 25 working days, the successor contractor's management of the business and the direction of its personnel, including the right to hire, discipline and discharge employees for just cause is vested exclusively in the contractor. The contractor may require employees to submit to a criminal background check by the Illinois State Police and the Federal Bureau of Investigation.

(h) At the end of the transition period of 25 working days, the successor employer shall use his or her own existing practices and forms to perform a written performance evaluation for each employee retained pursuant to this Section. If the employee's performance during such period of 25 working days is satisfactory, the successor contractor shall offer the employee continued employment under the terms and conditions established by the successor employer or as required by law.

Section 15. Violation.

(a) A building service employee who has been discharged or not retained in violation of this Act may bring an action in court against a successor contractor and covered employer for violation of any obligation imposed pursuant to this Act.

(b) The court shall have the authority to order injunctive relief to prevent or remedy a violation of any obligation imposed pursuant to this Act.

(c) If the court finds that by reason of a violation of any obligation imposed pursuant to subsection (b), a building service employee has been discharged in violation of this Section, it shall award:

(1) 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 (i) the average regular rate of pay received by the employee during the last 3 years of the employee's employment in the same occupation classification; or (ii) the final regular rate received by the employee.

(2) Costs of benefits the successor employer would have incurred for the employee under the successor contractor's or employer's benefit plans.

(3) The building service employee's reasonable attorney's fees and costs.

(d) In any such action, the court shall have the authority to order the terminated contractor or former employer to provide the successor employer with the information required pursuant to Section 10(c) of this Act.

Section 20. Exemptions. The provisions of this Act do not apply:

(1) To any successor employer that, on or before, the effective date of the transfer of control from a predecessor covered employer to the successor employer to 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 building service employees, provided that the collective bargaining agreement provides terms and conditions for the discharge or laying off of employees.

(2) Where there is no existing collective bargaining agreement as described in subdivision (1), 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 discharged or laying off of employees.

(3) To any successor employer whose building service employees will be accredited to a bargaining unit with a pre-existing collective bargaining agreement, provided that the collective bargaining agreement provides terms and conditions for the discharged or laying off of employees.

(4) 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 subdivision (1), (2), or (3).

Section 99. Effective date. This Act takes effect upon becoming law.".