4-38
SERVICE PROVIDER WORKER RETENTION:
4-38.1 Statement Of Policy:
The city awards numerous contracts every year to various service providers and contractors to perform essential and critical services and governmental functions. The effective and efficient performance of these services is highly dependent upon skilled and experienced workers capable of executing the necessary work in a timely and competent manner. Any changes in the personnel of these service providers can have an effect on the quality of services provided by the city, whether due to a change of ownership of the existing service provider or the subsequent award of a contract to a different service provider.
The city finds that the solicitation and procurement of new service providers is beneficial to the city’s overall economic health and provides the opportunity for other businesses to benefit from city service contracts. The city also recognizes that these benefits are not necessarily diminished by the retention of workers experienced in performing these duties as it allows for the city to utilize those workers’ expertise and knowledge in the effective performance of such duties. Whenever there is turnover related to the performance of these functions, there is an adjustment period for new workers to be able to perform these functions with the same expertise and effectiveness as their predecessors. There is also a loss of institutional knowledge accrued through the experience and longevity of the prior employee. Replacement of these highly experienced and highly skilled workers may affect the success and performance of various city projects, services, and functions.
The retention of the experienced workers also reduces the possibility of labor disputes and disruption of valuable city services. The minimization of such disruptions provides the city and the public with confidence that these services will continue seamlessly through any transition of ownership or change in providers. It will also reduce any impacts associated with unemployment due to such transitions or changes. The city recognizes that such efforts to reduce unemployment are a benefit to the city and the community in general. (Ord. #1781, §2)
4-38.2 Definitions:
Change in ownership shall mean the assignment, alienation, transfer, sale, acquisition, or disposition of a controlling stake or substantially all of assets of the existing service provider by another entity, including but not limited to such transfer through consolidation, merger, reorganization, or bankruptcy.
Change in provider shall mean any change in the existing service provider of city’s contracted services to a successor service provider.
City shall mean the city of Lynwood.
Contracted services shall mean services provided by a service provider under contract with city for a cost above three hundred thousand dollars ($300,000.00) for a period of twelve (12) consecutive months. Contracted services shall not include professional or special services as defined under section 6-3.1; however, the terms “consultant” and “security services” shall not be considered professional or special services for the purpose of this section. The city manager, with the consent of the finance committee, shall have the discretion to determine whether a certain service is considered a contracted service under this section pursuant to section 4-38.7. In the absence of a determination by the city manager regarding whether a certain service is considered a contracted service, the city council shall have the authority to make the determination by a majority vote of the city council.
Displaced worker shall mean any person or individual performing contracted services for the city on behalf of an existing service provider, or any its subcontractors hired to perform work under such contract. This does not apply to exempt employees under the Fair Labor Standards Act (FLSA) or any person or individual who was not employed by the ESP for a minimum of thirty (30) days prior to the execution of the succession event.
Entity shall mean a person or individual, sole proprietor, partnership, limited partnership, limited liability company, company, corporation, agency, association, trust, estate, joint venture, or any other commercial or legal entity, whether domestic or foreign, but shall not include other governmental agencies or public institutions.
Existing services provider or ESP shall mean the service provider contracted to provide contracted services to the city prior to any change in ownership or change in provider event.
Service provider shall mean any entity under contract with the city to provide contracted services.
Succession event shall mean the effective date of the document effecting a change in ownership; or in the event of a change of services, the date of upon which the city provides notice to the existing service provider that city has entered into a contract with a successor service provider.
Successor service provider or SSP shall mean the entity that provides the same or substantially the same contracted services to the city as the existing service provider pursuant to any change in ownership or change in provider event.
Transition period shall mean the period as described under section 4-38.3. (Ord. #1781, §2)
4-38.3 Displaced Worker Retention:
a. Within ten (10) days of a succession event, the ESP must provide the SSP and the city manager a list of all of its displaced workers providing contracted services which were subject to the change in provider or the change in ownership. The list shall include:
1. Each displaced worker’s name; and
2. Last known address, email and phone number if available; and
3. Date hired by the ESP; and
4. Each displaced worker’s job classification at the time of the transfer.
b. If the identity of the SSP is not known at the time of the succession event, such information shall be requested from the city manager. The SSP shall offer employment to all displaced workers via certified mail, and if available via email or telephone, within ten (10) days of being awarded the contracted services or a succession event, whichever is sooner. The letter shall require the displaced worker to return a signed copy of the letter to ESP indicating whether he or she has accepted or declined the offer. If the displaced worker fails to submit a signed and accepted offer letter within ten (10) days of displaced worker’s receipt of the offer letter, the offer shall be deemed as declined by the displaced worker. The SSP shall provide copies of all offer letters and certified mail receipts to the city manager.
c. To the extent feasible, SSP’s contracted services must be performed by displaced workers; however, SSP shall not be required to unnecessarily create additional positions to perform the contracted services. In the event SSP desires to reduce the amount of work hours or positions utilized to perform SSP’s contracted services, the SSP must obtain written approval from the city manager and hire workers based on seniority pursuant to section 4-38.4.
d. The SSP may not discharge any displaced worker without cause for at least ninety (90) days from the date on which the SSP actually begins providing contracted services (the “transition period”). “Cause,” as used in this section, shall mean in good faith and based on a fair and honest reason, and not for reasons that are trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual.
e. At the expiration of the transition period, the SSP shall conduct a written performance evaluation for each displaced worker retained by SSP. If the displaced worker’s performance evaluation is satisfactory or better, SSP shall offer the displaced worker continued employment with SSP subject to section 4-38.5. (Ord. #1781, §2)
4-38.4 Preferential Hires:
a. If, after the expiration of the transition period, the SSP determines that fewer positions are needed to deliver and maintain the contracted service, the SSP shall retain displaced workers by seniority.
b. Seniority shall be determined by reference to the collective bargaining agreement covering the displaced workers, if one exists, or, if no such agreement exists, then by reference to the initial hire date with the ESP of each displaced worker. Any displaced workers not retained by the SSP shall be placed on a preferential hiring list and considered by the SSP for any job openings that may arise. (Ord. #1781, §2)
4-38.5 Wages And Benefits Of Displaced Workers:
SSP must provide all displaced workers covered by this section with wages and benefits at a value of not less than the greater of those: (a) in effect at the time of the termination or expiration of ESP’s contract or effective date of the change of ownership; or (b) in any collective bargaining agreement applicable to the displaced workers’ employment with the ESP. Wages and benefits include 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. However, nothing in this section will be construed to require the maintenance of wages and benefits beyond the ninety (90) day transition period by the new SSP. (Ord. #1781, §2)
4-38.6 Retaliation And Discrimination:
a. No ESP or SSP may discriminate against any person for filing a complaint, participating in any investigation or proceeding relating to the enforcement of these provisions, or pursuing any remedies available at law or equity for any violation of this section including any harassment, abuse, threats, discharge of duties, or reduction in work hours or duties.
b. Any waiver by a displaced worker of any or all of the provisions of this section 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 ESP or SSP to have a displaced worker waive his or her rights given by this section shall constitute a willful violation of this provisions included herein. (Ord. #1781, §2)
4-38.7 Enforcement:
a. The city reserves the right to waive or modify any or all the provisions of this section with respect to any service provider upon a finding that it would not be in the best interest of the city. Any waiver or modification shall require approval by the city council by a majority vote of the city council.
b. Any displaced worker claiming a violation hereunder may bring an action against the existing service provider or successor service provider in the Superior Court of the State of California to enforce the provisions of this section. The penalty for any violation of this section shall be for an amount equal to ninety (90) days of the displaced worker’s average regular rate of pay, and any other actual damages or legal or equitable remedies, including but not limited to reinstatement, injunctive relief, and back pay. This section further authorizes the awarding of punitive damages for willful violations of this section. Any plaintiff that successfully enforces his or her rights pursuant to this section shall be entitled to reasonable attorney’s fees, expert witness fees, and costs of litigation. Violations of this section are declared to irreparably harm the public and covered employees generally. Notwithstanding any provision of this code or any other law to the contrary, no criminal penalties shall attach for any violation of this section.
c. Displaced workers shall be considered third-party beneficiaries to any contract for contracted services, and shall have the right to enforce the provisions of this section, and shall be independent of the city’s right to enforce any and all provisions included herein.
d. If the city manager determines that any SSP has violated any provision of this section, the city manager may also recommend that the city council take any or all of the following actions:
1. Document the violations which may be used in the evaluation of successor service provider’s performance.
2. Terminate the successor service provider’s contract.
3. Withhold any payments due to successor service provider. (Ord. #1781, §2)