BILL REQ. #: H-1559.1

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SUBSTITUTE HOUSE BILL 1832
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State of Washington

62nd Legislature

2011 Regular Session

By House Labor & Workforce Development (originally sponsored by Representatives Upthegrove, Moscoso, Fitzgibbon, Stanford, Pettigrew, Sells, Goodman, Roberts, Green, Frockt, Kenney, and Ormsby)

READ FIRST TIME 02/17/11.

AN ACT Relating to protecting the rights of employees of service contractors at certain airports; amending RCW 14.08.015; adding a new section to chapter 14.08 RCW; repealing RCW 14.08.010; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 14.08.015 and 1987 c 254 s 1 are each amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Airport charges" means charges of an airport operator for tie-downs, landing fees, the occupation of a hangar by an aircraft, and all other charges owing or to become owing under a contract between an aircraft owner and an airport operator or under an officially adopted regulation and/or tariff including, but not limited to, the cost of sale and related expenses.
     (2) "Aircraft" means every species of aircraft or other mechanical device capable of being used for the purpose of aerial flight.
     (3) "Airport operator" means any municipality ((~~as defined in RCW 14.08.010(2)~~)) or state agency which owns and/or operates an airport.
     (4) "Airport purposes" means and includes airport, restricted landing area, and other air navigation facility purposes.
     (5) "Awarding authority" means any person, including the municipality and a contractor or subcontractor, who awards or otherwise enters into a contract to perform food and beverage, retail, security, or janitorial services, at an airport in a county with a population of one million or more.
     (6) "Contractor" means any person who enters into a service contract with the awarding authority and any subcontractors to the service contract at any tier who employ ten or more persons.
     (7) "Employee" means any person engaged to perform services pursuant to a service contract, but does not include a person who is: (a) A managerial, supervisory, or confidential employee, including any person who would be so defined under the federal fair labor standards act; or (b) employed for less than fifteen hours per week.
     (8) "Labor organization" means the same as in 29 U.S.C. Sec. 152(5).
     (9) "Labor peace agreement" means an enforceable agreement with a labor organization that represents or seeks to represent the contractor's employees working under the contract and that contains provisions under which the labor organization for itself and its members agree to refrain from engaging in any picketing, work stoppages, boycotts, or any other economic interference with the operations of the contractor under its contract.
     (10) "Municipality" means any county, city, town, airport district, or port district of this state.
     (11) "Owner" means (a) every natural person, firm, partnership, corporation, association, trust, estate, or organization, or agent thereof with actual or apparent authority, who expressly or impliedly contracts for use of airport property for landing, parking, or hangaring aircraft, and (b) includes the registered owner or owners and lienholders of record with the federal aviation administration.
     (12) "Person" means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust association, or other entity that may employ or enter into other contracts, including the state and its political subdivisions.
     (13) "Service contract" means a contract for the performance of food and beverage, retail, security, or janitorial services, at the airport.
     (14) "Successor service contract" means a service contract with the awarding authority under which substantially the same services to be performed have previously been rendered to the awarding authority as part of the same program or at the same facility under another service contract or have previously been rendered by the awarding authority's own employees.
     (15) "Terminated contractor" means a contractor whose service contract expires without renewal or whose contract is terminated within eighteen months before or after the commencement of operations under a successor service contract, and includes the awarding authority itself when work previously rendered by the awarding authority's own employees is the subject of a successor service contract.

NEW SECTION.  Sec. 2   A new section is added to chapter 14.08 RCW to read as follows:
     (1) Each contractor and awarding authority that enters into a service contract to be performed at the airport shall be subject to the following obligations:
     (a) The awarding authority shall give advance notice to a contractor and the exclusive bargaining representative of any of the contractor's employees, of the termination or nonrenewal of the service contract as soon as reasonably practicable after the awarding authority knows or decides that the contract will be terminated or not renewed, and shall provide the contractor and the exclusive bargaining representative with the name, telephone number, and address of the successor contractor or contractors, if known. The terminated contractor shall, not later than three days after receipt of the notice, provide the successor contractor with the name, date of hire, and employment occupation classification of each person employed by the terminated contractor at the site or sites covered by the service contract as of the date the terminated contractor receives the notice of termination or nonrenewal.
     (b) On the date the service contract terminates, the terminated contractor shall provide the successor contractor with updated information concerning the name, date of hire, and employment occupation classification of each person employed by the terminated contractor at the site or sites covered by the service contract, to ensure that the information is current up to the actual date of service contract termination.
     (c) If the awarding authority fails to notify the terminated contractor of the identity of the successor contractor, as required by (a) of this subsection, the terminated contractor shall provide the information described in (b) of this subsection to the awarding authority not later than three days after receiving notice that the service contract will be terminated. The awarding authority shall be responsible for providing the information to the successor contractor as soon as the successor contractor has been selected.
     (d)(i) Except as provided in (d)(iv) of this subsection, a successor contractor shall retain, for at least ninety days from the date of first performance of services under the successor service contract, each of the employees who was continuously employed by the terminated contractor at the site or sites covered by the service contract during the six-month period immediately preceding the termination or nonrenewal of the service contract, or, if sooner, the layoff or termination of the employee, including any periods of layoff or leave with recall rights, and shall offer employment to employees who have been continuously employed by the terminated contractor at the site or sites covered by the service contract during the six-month period immediately preceding commencement of the successor contractor's operations and who are engaged in operations of the terminated contractor that have not ceased when the successor contractor commences operations and retain any employee who accepts the offer for at least ninety days from the date of first performance of services under the successor service contract.
     (ii) Except as provided in (d)(iv) of this subsection, if the successor service contract is terminated prior to the expiration of the ninety-day period, then any contractor awarded a subsequent successor service contract shall be bound by the requirements set forth in this subsection to retain, for a new ninety-day period commencing with the onset of the subsequent successor service contract, all of the employees who were entitled to retention or employment as provided in (d)(i) of this subsection.
     (iii) At least five days prior to the termination of a service contract, if the termination occurs before the successor contractor commences operations, or at least fifteen days prior to the commencement of the first performance of service under a successor service contract, the successor contractor shall hand-deliver a written offer of employment to each employee who is entitled to retention or employment as provided in (d)(i) of this subsection. The written offer of employment shall be in substantially the form set forth below and in the employee's native language or any other language in which the employee is fluent:

     "IMPORTANT INFORMATION REGARDING YOUR EMPLOYMENT

To: . . . . . . (Name of employee)

     We have received information that you are employed by . . . . . . (name of predecessor contractor) and are currently performing work at . . . . . . (address of worksite). . . . . . . (Name of predecessor contractor's) contract to perform . . . . . . (describe services under contract) at . . . . . . (address of worksite) will terminate as of . . . . . . (last day of predecessor contract) and it will no longer be providing those services as of that date. We are . . . . . . (name of successor contractor) and have been hired to provide services similar to those of . . . . . . (name of predecessor contractor) at . . . . . . (address of worksite). We are offering you a job with us for a ninety-day probationary period starting . . . . . . (first day of successor contract) to perform the same type of work that you have already been doing for . . . . . . (name of predecessor contractor) under the following terms:

     Pay rate (per hour): $ . . . . . .
     Hours per shift: . . . . . .
     Total hours per week: . . . . . .
     Benefits: . . . . . .

     You must respond to this offer within the next ten days. If you want to continue working at . . . . . . (address of worksite) you must let us know by . . . . . . (no later than ten days after the date of this letter). If we do not receive your response by the end of business that day, we will not hire you and you will lose your job. We can be reached at . . . . . . (successor contractor telephone number).

     Washington state law gives you the following rights:
     1. You have the right with certain exceptions, to be hired by our company for the first ninety days that we begin to provide services at . . . . . . (address of worksite).
     2. During this ninety-day period, you cannot be fired without just cause.
     3. If you believe that you have been fired or laid off in violation of this law, you have the right to sue us and be awarded back pay, attorneys' fees, and court costs.

From: . . . . . . (Name of successor contractor)
. . . . . . (Address of successor contractor) . . . . . .
(Telephone number of successor contractor)"

     Each offer of employment shall state the time within which the employee must accept the offer, but in no case shall that time be less than ten days from the date of the offer of employment.
     (iv) The provisions of (d)(i) and (ii) of this subsection shall not be construed to require a successor contractor to retain any employee whose attendance and performance records, while working under the terminated service contract, would lead a reasonably prudent employer to terminate the employee.
     (e) If at any time a successor contractor determines that fewer employees are required to perform the successor service contract than were required by the terminated contractor, the successor contractor shall be required to retain the employees by seniority within each job classification, based upon the employees' total length of service at the affected site or sites.
     (f) During the ninety-day period, the successor contractor shall maintain a preferential hiring list of employees eligible for retention pursuant to (d) of this subsection who were not initially retained by the successor contractor, from which the successor contractor shall hire additional employees, if necessary.
     (g) Except as provided under (e) of this subsection, during the ninety-day period, the successor contractor shall not discharge without just cause an employee retained pursuant to this section. For purposes of this subsection, "just cause" shall be determined solely by the performance or conduct of the particular employee.
     (h) If the performance of an employee retained pursuant to this section is satisfactory during the ninety-day period, the successor contractor shall offer the employee continued employment under the terms and conditions established by the successor contractor, or as required by law.
     (2)(a) An employee displaced or terminated in violation of this section may bring an action in superior court against the awarding authority, the terminated contractor, or the successor contractor, jointly or severally, to recover damages for any violation of the obligations imposed under this section.
     (b) If the employee prevails in the action, the court may award the employee: (i) Back pay, including the value of benefits, for each day during which the violation continues, that shall be calculated at a rate of compensation not less than the higher of: (A) The average regular rate of pay received by the employee during the last year of employment in the same job occupation classification, or, if the employee has been employed for less than one year, the average rate of pay for the employee's entire employment multiplied by the average number of hours worked per day over the last four months of employment preceding the date of the violation; or (B) the final regular rate of pay received by the employee at the date of termination multiplied by the average number of hours worked per day over the last four months; and (ii) reinstatement to the employee's former position at not less than the most recent rate of compensation received by the employee, including the value of any benefits.
     (c) If the employee prevails in the action, the court shall award the employee reasonable attorneys' fees and costs.
     (d) Nothing in this subsection shall be construed to limit an employee's right to bring a common law cause of action for wrongful termination against the awarding authority, the terminated contractor, or the successor contractor.
     (3) Any awarding authority or contractor who knowingly violates the provisions of this section shall pay a penalty not to exceed one hundred dollars per employee for each day the violation continues.
     (4) Prior to execution of leases or contracts, including renewals or material amendments, (each of these referred to in this subsection and subsections (5) through (8) of this section as a "contract") with the airport or the airport's terminal lessee or managing agent, all contractors, and any existing subtenants under their contracts, shall enter into a labor peace agreement. The contract shall require the contractor to in turn obligate its future subtenants under the contract to enter into labor peace agreements.
     (5) The contractor must provide evidence of the signed labor peace agreement to the airport prior to execution of its contract with the airport or the airport's terminal lessee or managing agent.
     (6) Where the contractor is selected through a request for proposals or other procurement process issued by the airport or airport terminal lessees or their managing agents, notification of the labor peace agreement requirement shall be included in the procurement documents. In these cases, the contractor must provide evidence of the signed labor peace agreement in its response to the request for proposals or the proposal will be deemed nonresponsive.
     (7) The labor peace agreement requirement shall be a material condition of any contracts with the airport, and each contract shall provide that the airport shall have the right to impose penalties and ultimately suspend or terminate the contractor's operations for a breach of the requirement, and to recover damages for the airport's losses and expenses incurred as a result of the breach.
     (8) The airport shall identify the labor organization(s) that represent or are likely to seek to represent a contractor's employees and notify each contractor of this identification along with the labor organization's contact information.

NEW SECTION. Sec. 3 RCW 14.08.010 (Definition -- "Municipality") and 1987 c 254 s 3 & 1945 c 182 s 1 are each repealed.

NEW SECTION. Sec. 4 This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.

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