Opinion
A159790
10-15-2021
SEIU-USWW et al., Plaintiffs and Respondents, v. PREFERRED BUILDING SERVICES, INC., Defendant and Appellant.
Greenberg Traurig, Karin L. Bohmholdt, Los Angeles, Charles Birenbaum, Jamie Rich, and Tayanah Miller, San Francisco, for Defendant and Appellant. Weinberg, Roger, & Rosenfeld, Antonio Ruiz, Jannah V. Manansala, Alexander S. Nazarov and Caitlin Gray, Alameda, for Plaintiff and Respondents.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I.C–F and II.
Greenberg Traurig, Karin L. Bohmholdt, Los Angeles, Charles Birenbaum, Jamie Rich, and Tayanah Miller, San Francisco, for Defendant and Appellant.
Weinberg, Roger, & Rosenfeld, Antonio Ruiz, Jannah V. Manansala, Alexander S. Nazarov and Caitlin Gray, Alameda, for Plaintiff and Respondents.
Simons, Acting P.J.
A class of janitors (Janitors) were employed by VPM Maintenance Management, LLC (VPM) at a residential complex (the Site). After VPM terminated its janitorial contract with the Site, a successor janitorial contractor (Successor) replaced VPM. Janitors and their union (Union) (collectively, Plaintiffs) sued Successor for failing to retain Janitors under state and local laws. The trial court granted Plaintiffs’ motion for summary judgment and awarded attorney fees. We affirm.
BACKGROUND
Janitors worked for VPM providing janitorial services at the Site. The Union was Janitors’ elected bargaining representative. In 2014, VPM notified the Union that it was considering terminating its janitorial contract with the Site. In June 2014, VPM and the Union executed an agreement regarding this potential termination (Termination Agreement). The Termination Agreement provided that, in the event that VPM terminated its janitorial contract with the Site, VPM would offer a specified severance package to employees who executed an agreement stating they were voluntarily resigning and releasing all claims against VPM. The Termination Agreement also included the following: "[N]either the Union nor any bargaining unit employee waives any rights under the Displaced Janitors Opportunity Act to require any successor employer to offer employment to existing employees ...." In February 2015, VPM informed the Union that it was terminating its janitorial contract with the Site effective April 13, 2015. Janitors each signed a separation agreement (Separation Agreement). The Separation Agreements stated the employee was voluntarily resigning; provided lump sum payments based on the employee's years of service; included a release of all claims against VPM; and stated the employee's last day would be April 13, 2015, or earlier at VPM's election.
On April 10, 2015, VPM informed the Union that VPM was electing to move up Janitors’ last day pursuant to the Separation Agreements and "today will be everyone's last day." For the following three days, the Site hired another company to provide essential janitorial services; VPM did not provide these services at the Site.
VPM nonetheless paid Janitors through April 13, 2015.
On April 14, 2015, Successor began providing janitorial services at the Site. On that date, Janitors appeared at the Site and asserted their right to retention. Successor did not retain any of the Janitors.
In May 2015, Plaintiffs sued Successor, alleging violations of the Displaced Janitor Opportunity Act ( Lab. Code, §§ 1060 – 1065 ; DJOA), and the Displaced Worker Protection Act (S.F. Police Code, §§ 3300C.1–3300C.6; DWPA). Multiple motions for summary judgment and/or summary adjudication were filed and denied in whole or in part. In November 2018, Plaintiffs filed a motion for summary judgment, which the trial court granted. The court subsequently awarded attorney fees to Plaintiffs and issued judgment. This appeal followed.
All undesignated section references are to the Labor Code.
DISCUSSION
I. Summary Judgment
"An order granting summary judgment is reviewed de novo. [Citation.] As a practical matter, ‘ "we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment." ’ [Citation.] A motion for summary judgment is properly granted ‘if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ " ( Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 661, 233 Cal.Rptr.3d 199.) A. Legal Background
The DJOA "requires contractors who are awarded contracts for janitorial or building maintenance services at a particular site to retain certain employees working for the terminated contractor for a 60-day transition employment period, and to offer those workers continued employment if their performance during the 60-day period is satisfactory. ( § 1061, subds. (b)(1) & (f).) ... [T]he DJOA requires a terminated contractor to provide the name, date of hire, and job classification of each employee employed at the site to the successor contractor within three working days after receiving notice that its contract has been terminated. ( § 1061, subd. (a).) [¶] Under the DJOA, an employee of the terminated contractor who was not offered employment by the successor contractor may sue the successor for back pay, including the value of any lost employment benefits. (§ 1062, subd. (a).) If the employee is the prevailing party, the trial court ‘shall award the employee reasonable attorney's fees and costs as part of the costs recoverable.’ (§ 1062, subd. (c).)" ( Jones v. Quality Coast, Inc. (2021) 62 Cal.App.5th 372, 379–380, 276 Cal.Rptr.3d 597 ( Jones ).)
In a footnote, Successor cursorily asserts the DJOA does not apply because VPM terminated the contract, not the Site. The contention is forfeited: "An appellant cannot bury a substantive legal argument in a footnote and hope to avoid waiver of that argument." (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 419, 255 Cal.Rptr.3d 873.)
The DWPA similarly provides that persons employed under service contracts shall be retained by a successor contractor for a 90-day transition period. (S.F. Police Code, §§ 3300C.1(c) & (f), 3300C.2(b).)
The DJOA was modeled on local ordinances adopted in various cities, including San Francisco—presumably, the DWPA. (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 20 (2001–2002 Reg. Sess.) as amended Sept. 4, 2001, p. 3 ["SB 20 is modeled after local ordinances adopted by San Francisco in 1998, Washington, D.C., in 1994, and, most recently, in Philadelphia, Pennsylvania"].)
B. Employees
Successor argues Janitors were not "employees" within the meaning of the DJOA and DWPA. " ‘As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose.’ [Citation.] The well-established rules for performing this task require us to begin by examining the statutory language, giving it a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language in isolation; rather, we look to the statute's entire substance in order to determine its scope and purposes. [Citation.] That is, we construe the words in question in context, keeping in mind the statute's nature and obvious purposes. [Citation.] We must harmonize the statute's various parts by considering it in the context of the statutory framework as a whole. [Citation.] If the statutory language is unambiguous, then its plain meaning controls. If, however, the language supports more than one reasonable construction, then we may look to extrinsic aids, including the ostensible objects to be achieved and the legislative history." ( Los Angeles County Metropolitan Transportation Authority v. Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1106–1107, 133 Cal.Rptr.3d 738, 264 P.3d 579.)
The DJOA defines "employee" as "any person employed as a service employee of a contractor or subcontractor who works at least 15 hours per week and whose primary place of employment is in the State of California under a contract to provide janitorial or building maintenance services." ( § 1060, subd. (c).) The DWPA provides a similar definition; the only differences are not material here. (S.F. Police Code, § 3300C.1(c) [" ‘Employee’ means any person employed as a service employee of a contractor or subcontractor who works at least 15 hours per week and whose primary place of employment is in the City and County of San Francisco under a contract to provide security services, janitorial services, or building maintenance services for the awarding authority."].) Under the DJOA, a successor contractor is required to retain "employees who have been employed by the terminated contractor or its subcontractors, if any, for the preceding four months or longer at the site or sites covered by the successor service contract ...." ( § 1061, subd. (b)(1).) The DWPA imposes a nearly identical requirement, but requires retained employees to have been employed for at least the preceding eight months. (S.F. Police Code, § 3300C.2(b) [successor contractor must retain "employees who have been employed by the terminated contractor or its subcontractors, if any, for the preceding eight months or longer at the site or sites covered by the contract"].)
Plaintiffs suggest the statutes require retention of any person "recently or lately" employed by the terminated contractor. This argument is fatally undermined by another provision, requiring the terminated contractor to provide information about "each employee employed at the site or sites covered by the terminated service contract at the time of the contract termination ." ( § 1061, subd. (a)(1), italics added; see S.F. Police Code, § 3300C.2(a) [terminated contractor must provide information about "each employee employed at the site or sites covered by the prospective contractor at the time of contract termination " (italics added)].) Similarly, the DJOA's formula for calculating a backpay award incorporates "[t]he final regular rate of pay received by the employee at the time of termination of the predecessor contract ...." (§ 1062, subd. (a)(2), italics added.) This language makes it clear that the individual must be an employee at the time of contract termination.
Successor argues the time of contract termination was April 13, 2015, relying on a declaration from VPM's president averring that "[o]n April 13, 2015, VPM terminated" its janitorial contract with the Site. However, the undisputed evidence establishes that after April 10, 2015, VPM did not provide janitorial services at the Site. No VPM employees provided these services. VPM also did not provide these services through other means; instead, the Site itself hired a third company to provide janitorial services between April 10 and April 14, the date Successor began providing janitorial and maintenance services at the Site. April 10, 2015 was thus the last day VPM provided janitorial services at the Site, either with its own employees or by some other means.
We must determine whether "the time of contract termination" for purposes of the DJOA and DWPA is the nominal last day of the contract or the last day the terminated contractor actually provides janitorial services at the site. The statutory purpose informs our analysis. " ‘When construing the Labor Code ..., we adopt the construction that best gives effect to the purpose of the Legislature .... [Citations.] Time and again, we have characterized that purpose as the protection of employees—particularly given the extent of legislative concern about working conditions, wages, and hours when the Legislature enacted key portions of the Labor Code. [Citations.] In furtherance of that purpose, we liberally construe the Labor Code ... to favor the protection of employees.’ " ( Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, 839, 235 Cal.Rptr.3d 820, 421 P.3d 1114.) This employee-protective purpose is confirmed by the legislative history of the DJOA, which "indicates it was designed to protect vulnerable janitorial workers from a labor market in which they can lose their jobs with little or no warning." ( Jones, supra, 62 Cal.App.5th at p. 380, fn. 3, 276 Cal.Rptr.3d 597.)
The parties do not suggest the purpose of the DWPA is any different.
In addition, the DJOA includes provisions indicating a legislative intent to forestall contractors and awarding authorities from circumventing its provisions. The statute defines " ‘Successor service contract’ " to mean "a service contract for the performance of essentially the same services as were previously performed pursuant to a different service contract at the same facility that terminated within the previous 30 days." ( § 1060, subd. (g).) However, in an apparent recognition that contractors and awarding authorities might wait 31 days to begin a new contract to avoid the statute's requirements, the DJOA further provides, "A service contract entered into more than 30 days after the termination of a predecessor service contract shall be considered a ‘successor service contract’ if its execution was delayed for the purpose of avoiding application of this chapter." ( § 1060, subd. (g).)
To allow a terminated contractor to stop providing services a few days before the nominal end of the contract and claim it therefore had no employees "at the time of contract termination" would create an easy way around the requirements of the DJOA and DWPA. Such an interpretation would contravene the legislative intent to close such loopholes, the worker-protective statutory purpose, and our obligation to liberally construe the statutes in favor of employee protection. Accordingly, we conclude that April 10, 2015—the last day VPM provided janitorial services at the Site—was "the time of contract termination" for purposes of the DJOA and DWPA, regardless of any other nominal or technical contract end date. Janitors were therefore employees at the time of contract termination.
Our analysis is not impacted by Janitors’ statements in the Separation Agreements that they voluntarily resigned. Setting aside the question of whether their departure is accurately characterized as voluntary (see Cal. Code Regs., tit. 22, § 1256–1, subd. (d) [for purposes of unemployment benefits, "An employee who leaves work when asked by the employer to either resign or be fired ... has not left work of his or her own free will," and is therefore "involuntarily unemployed"]), Janitors’ resignations were effective at the end of the day on April 10, 2015. Therefore, Janitors were still employees at the time of contract termination.
Successor also makes much of Janitors’ receipt of severance packages from VPM. We fail to see how this severance—received by Janitors in exchange for their release of all claims against VPM —impacts our interpretation of Successor's obligations under the DJOA and DWPA. Nor are we persuaded by Successor's argument that, if we affirm the trial court, a janitor and terminated contractor could never "voluntarily sever their employment relationship ... without triggering a retention obligation for the successor." Most obviously, a janitor could waive his or her rights under the DJOA or DWPA.
In the unpublished portion of the opinion, we reject Successor's argument that Janitors so waived these rights. (See post, part I.E.)
See footnote *, ante .
See footnote *, ante .
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR:
Needham, J.
Burns, J.