Maywood Municipal Code Ch. 13 Waste Disposal Worker Retention Ordinance

(a) The Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 ("AB 939") established a solid waste management process that requires cities and other local jurisdictions to implement source reduction, reuse, and recycling as integrated waste management practices. Further, AB 939 authorizes and requires local agencies to make adequate provisions for solid waste handling within their jurisdictions.

(b) The adoption of these supplemental regulations are to ensure the retention of experienced workers during the transition to new ownership or a change in contracted waste disposal services.

(c) In the event of a change in the contracted waste disposal services provider, or a change in ownership or control of such provider, the retention of experienced waste disposal workers is an important component in protecting the public health and safety interests of Maywood residents, as well as the efficient and effective delivery of contracted waste disposal services.

(d) The City has a vital interest in the safe, efficient and effective delivery of contracted waste disposal services. This Chapter seeks to ensure that the retention of experienced workers is retained during the transition to new ownership or a change in contracted waste disposal services.

(Ord. No. 10-01, § 1, 2-23-2010)

As used in this Chapter:

(a) "Change in Contract" shall mean any change by the City of the Service Provider with whom the City contracts to provide contracted waste disposal services including the pick-up, transfer, disposal and sorting of residential and commercial solid waste, recycling and street sweeping.

(b) "Change in Control" shall mean any sale, assignment, transfer, contribution or other disposition of all or substantially all of the assets or a controlling interest (including by consolidation, merger, or reorganization) of the Existing Service Provider, or any Person who controls such Existing Service Provider to a Successor Service Provider.

(c) "City" shall mean the City of Maywood.

(d) "Existing Service Provider" shall mean the Service Provider who owns, controls and/or provides contracted waste disposal services prior to a Change in Control or Change in Contract.

(e) "Person" shall mean an individual, corporation, partnership, limited partnership, trust, estate, association, joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign.

(f) "Qualified Displaced Worker" shall mean any person employed by the Existing Service Provider or any its subcontractors under the City's contracted waste disposal services agreement who:

(1) is not an "exempt" employee under the Fair Labor Standards Act (FLSA);

(2) has been employed by the Existing Service Provider or any of its subcontractors for at least thirty (30) calendar days prior to the execution of the Transfer Document.

(g) "Service Provider" shall mean any person including any corporation, company, partnership, trust, estate, association, joint venture or other legal or commercial entity, including any subcontractors, operating within the City that employs workers to perform City-contracted waste disposal services, including the pick-up, transfer, disposal and sorting of residential and commercial solid waste, recycling, and street sweeping.

(h) "Successor Service Provider" shall mean the Service Provider who owns, controls and/or provides contracted waste disposal services following a Change in Control or Change in Contract.

(i) "Transfer Document" shall mean the document effecting a Change in Control or Change in Contract.

(Ord. No. 10-01, § 1, 2-23-2010)

(a) An Existing Service Provider shall, within ten (10) days of the execution of a Transfer Document, provide the Successor Service Provider and the City Manager a list of all of the employees of the Existing Service Provider, including each employee's name, last known address, date of hire and job classification at the time of the transfer. The Successor Service Provider shall offer employment to all Qualified Displaced Workers.

(b) All Successor Service Provider work hours spent on City-contracted waste disposal services must be performed, to the extent feasible, by Qualified Displaced Workers. Nothing herein shall be construed as requiring the Successor Service Provider to create additional positions that the Successor Service Provider does not need. However, prior to reducing the amount of work hours or positions utilized to perform waste disposal services, a Successor Service Provider must obtain written approval from the City Manager.

(c) The Successor Service Provider is prohibited from discharging any Qualified Displaced Worker, except for cause, for at least 180 days from the effective date of the Transfer Document, or the date on which the Successor Service Provider actually begins providing contracted waste disposal services, whichever is later.

(d) At the end of such 180-day period, the Successor Service Provider (or subcontractor, where applicable) shall conduct a written performance evaluation for each employee retained pursuant to this Chapter. If the employee's performance during such 180-day period is satisfactory, the Successor Service Provider (or subcontractor) shall offer the employee continued employment consistent with Section 4-13.05 of this Chapter.

(Ord. No. 10-01, § 1, 2-23-2010)

In the event that, during the 180-day transition period described in [subsection] 4-13.03(c) above, the Successor Service Provider determines that fewer positions are needed to deliver and maintain the contracted service, the Successor Service Provider shall retain Qualified Displaced Workers by seniority. Seniority shall be determined by reference to the collective bargaining agreement covering the Qualified Displaced Workers, if one exists, or, if no such agreement exists, then by reference to the initial hire date with the Existing Service Provider of each Qualified Displaced Worker. Any Qualified Displaced Workers not retained by the Successor Service Provider shall be placed on a preferential hiring list and considered by the Successor Service Provider for any job openings that may arise.

(Ord. No. 10-01, § 1, 2-23-2010)

Each Successor Service Provider must provide all employees covered by this Chapter with wages in an amount and benefits at a value of not less than the greater of those (a) in effect at the point of execution of the Transfer Document or (b) in any collective bargaining agreement, whether effective or expired, between an Existing Service Provider and such employees. For purposes of this Chapter, "wages and benefits" includes all wages or compensation referenced in the existing collective bargaining agreement including provisions addressing how overtime shall be calculated, employer and employee contributions for medical insurance and retirement benefits, any tool, shoe or uniform allowance, sick leave, vacation time and personal or family leave.

(Ord. No. 10-01, § 1, 2-23-2010)

(a) No Existing Service Provider or Successor Service Provider shall discharge or otherwise discriminate against anyone for making a complaint, participating in any City proceeding, or using any civil remedy to enforce his or her rights, or for otherwise asserting his or her rights under this Chapter.

(b) Any waiver by a Qualified Displaced Worker of any or all of the provisions of this Chapter shall be deemed contrary to public policy and shall be void and unenforceable, except where such waiver occurs in a bona fide collective bargaining agreement. Any attempt by an Existing Service Provider or Successor Service Provider to have a waste, recycling or street sweeping worker waive his or her rights given by this Chapter shall constitute a willful violation of this Chapter.

(Ord. No. 10-01, § 1, 2-23-2010)

(a) Any employee claiming a violation of this Chapter may bring an action against an Existing Service Provider or Successor Service Provider in the Superior Court of the State of California, to enforce the provisions of this Chapter. The court is authorized to award liquidated damages for each violation in an amount equivalent to 180 days of the employee's average regular rate of pay and, where appropriate, back pay, any other actual damages, reinstatement, injunctive relief, and any other legal or equitable relief. This section further authorizes the awarding of treble damages for willful violations of this Chapter. Violations of this Chapter are declared to irreparably harm the public and covered employees generally.

(b) The Court shall award reasonable attorney's fees, expert witness fees and costs to any plaintiff who prevails in an action to enforce this Chapter.

(c) Nothing in this Chapter shall be interpreted to preclude or limit the City from seeking injunction or other judicial relief.

(d) The rights and remedies set forth herein are in addition to any other rights which an employee might have, under any federal or state statute or regulation or municipal ordinance or regulation or at common law.

(e) The terms of this Chapter shall be included, by reference, in all future contracts to provide waste disposal services, including the pick-up, transfer, and disposal and recycling of residential and commercial trash, the collection of recyclable materials and street sweeping to which any Service Provider is a party. All Service Providers shall include the terms of this Chapter, by reference, in all subcontracts which the Service Provider may enter into involving the provision of waste disposal services, including the pick-up, transfer, disposal and recycling of residential and commercial trash, the collection of recyclable materials and street sweeping. In addition, the following language shall be included in all contracts for waste disposal services, the collection of recyclable materials and street sweeping between the City and any Service Provider:

It is understood between the parties that Qualified Displaced Workers, as that term is defined in Title 4, Chapter 13 are third-party beneficiaries to this contract and Contractor agrees that, as such, qualified workers shall have the right to enforce the provisions of this agreement relating to employee retention and initial wages and benefits. This right shall be independent of the City's right to enforce any and all portions of the contract and shall be in addition to any rights that such workers may have under any other federal, state or local statute or at equity. In the event that a Qualified Displaced Worker prevails in an action to enforce this contract, that Qualified Displaced Worker shall be entitled to his or her costs, including a reasonable attorney's fees and costs, in addition to any other remedies that the worker may be due at law or in equity.

(Ord. No. 10-01, § 1, 2-23-2010)