The janitorial-services industry has drawn attention for its poor working conditions. Not only do janitors frequently work alone at night, they are vulnerable to sexual harassment and often fear retaliation for reporting harassers, according to a University of California, Berkeley, report.
A new state law is trying to combat the problem: The Property Service Workers Protection Act aims to protect janitors from sexual harassment. The law also aims to prevent wage theft by requiring employers to keep records for three years that contain detailed information about workers' hours and pay rates.
Janitorial employers will soon have to register with the state labor commissioner, and the list of employers will be publicly available through a database.
Additionally, the new law directs the state to create a "sexual violence and harassment prevention training" program.
Workplace Culture
According to the University of California, Berkeley, Labor Occupational Health Program's report, the structure and culture of the property service industry can lead to exploitation because of the following factors:
- Janitors often work in isolated conditions at night.
- Workers are often Latina and undocumented immigrants. They are less likely to report issues because of "fear of retaliation, language barriers, or lack of familiarity with their rights or resources available to them."
- "Layers of contracting and subcontracting" make the situation worse by reducing the accountability of employers.
- The workplace culture includes "poorly trained managers and supervisors, inadequate or nonexistent sexual harassment policies, unfair investigations that humiliate workers, and retaliatory threats." As an example, the report shares the story of a Latina janitor who received unwanted sexual requests via text message from a male co-worker. She said that when she reported the matter to her supervisor, he initially joked and asked, "So did you do it?"
Provisions of the Law
Under the law (which took effect Jan. 1) janitorial employers must maintain records for three years of the names and addresses of all workers, the hours they worked, and the wages they received.
However, Mark Terman, an attorney with Drinker Biddle & Reath in Los Angeles, recommends keeping these records for four years. When coupled with an unfair business practices claim, the statute of limitations for unpaid wage claims in California is four years, he noted.
Beginning July 1, 2018, the law will require janitorial employers to register each year with the state labor commissioner. To register, employers must meet certain conditions. For example, they must have satisfied any final judgments for unpaid wages. Information about janitorial employers will be accessible through a public database.
"The idea is by having that public accountability, the employers are going to be more careful," said Lisa Von Eschen, an attorney with Lamb & Kawakami in Los Angeles.
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.
"The hope is that the training will provide some awareness for these women that they have rights, and they don't have to put up with this," Von Eschen said.
The law's training requirements go further than California's existing sexual harassment training law, Terman said. Currently, supervisors at companies with 50 or more employees must receive this training every other year. The existing law doesn't require in-person training; instead, it can be done online. The new law requires training for all janitorial employers regardless of size, and it requires that the training be done in person.
Penalties
Employers that violate the registry requirements could face civil fines. If a janitorial company fails to register, it could face a fine of $100 for every day that the business is unregistered—up to $10,000.
Also, any business that contracts with an unregistered janitorial company could be hit with a fine of $2,000 to $10,000 for an initial violation and $10,000 to $25,000 for a subsequent violation.
If the Property Service Workers Protection Act is successful, the California State Legislature might use it as a model to regulate other industries, including the construction, agriculture and garment industries, according to Terman.
"I see this as part of a trend to further regulate industries that are perceived to not comply well with wage and hour laws and other California laws," he said.
Broad Definition of 'Employer'
The definition of "employer" under the act could easily capture nonjanitorial companies, according to Matt Oster, an attorney with Wolf, Rifkin, Shapiro, Schulman & Rabkin in Los Angeles.
The law defines an employer as "any person or entity that employs at least one employee and one or more covered workers" and that enters into agreements to provide janitorial services.
For instance, a property owner might hire a management company that has one employee who predominantly does janitorial work. The property owner might not think of the management company as a janitorial company—but under the act, that business could be considered one.
"Understand that it may apply to service contracts that you wouldn't really think it would apply to," said Oster.
In their contracts, companies should consider adding that the service provider is not a janitorial-services company within the meaning of the law, according to Oster.
Also, the contract should probably have an indemnification provision that makes the service provider liable for all misrepresentations, Oster added.
Moreover, "in the event there is no indemnification or the service provider does not have the money to pay any fines levied against the client, I would argue that the client did all it could to comply with the law," he stated.
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