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HomeMy WebLinkAboutNS-2807 - Adding Sections 16-40 through 16-42 to Article II of Chapter 16 of Santa Ana Municipal CodeJWF (8/12/10) ORDINANCE NO. NS-2807 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ADDING SECTIONS 16-40 THROUGH 16-42 TO ARTICLE II OF CHAPTER 16 OF THE SANTA ANA MUNICIPAL CODE RELATED TO SOLID WASTE COLLECTION REGULATIONS THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The California Legislature, 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. B. AB 939 authorizes and requires local agencies to make adequate provisions for solid waste handling within their jurisdictions. C. The City is obligated to protect the public health and safety of its residents, and must ensure that waste disposal occurs in a manner that protects public health and safety. D. The City Council has determined that the most effective and efficient way to provide integrated waste management services to its residents and to meet its multiple statutory obligations related to waste management is through an agreements with experienced private waste disposal services providers. E. 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 assuring the continued safe, efficient and effective delivery of City waste disposal services. F. The purpose of this ordinance is to establish standards to help ensure the retention of experienced workers during the transition to new ownership or change in contracted waste disposal services. Ordinance No. NS-2807 Page 1 of 6 Section 2. Section 16-40 is added to Chapter 16 of the Santa Ana Municipal Code to read in full as follows: Sec. 16-40. General Application and Definitions (a) Sections 16-40 through 16-42 shall apply to any corporation, company, partnership, trust, estate, association, joint venture or other legal or commercial entity operating within the City that employs workers to perform Waste Disposal Services. (b) "Change in Contract" shall mean any change by the City of any Waste Services Provider with whom the City contracts to provide Waste Disposal Services. (c) "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 Incumbent Operator, or any Person who controls such Incumbent Operator, in a Waste Services Provider, to a New Operator. (d) "City" shall mean the City of Santa Ana. (e) "Incumbent Operator" shall mean the Person who owns, controls, and/or operates a Waste Services Provider prior to a Change in Control or Change in Contract. (f) "New Operator" shall mean the Person who owns, controls and/or operates a Waste Services Provider following a Change in Control or Change in Contract. (g) "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. (h) "Qualified Displaced Worker" shall mean any person employed by an Incumbent Operator or any subcontractor of a Incumbent Operator of a Waste Services Provider who: (i) is not an "exempt" employee under the Fair Labor Standards Act (FLSA); and, (ii) has been employed at the Establishment by the Incumbent Operator or any subcontractor of the Incumbent Operator for at least 30 calendar days prior to the execution of the Transfer Document. (i) "Transfer Document" shall mean the document effecting a Change in Control or Change in Contract. Ordinance No. NS-2807 Page 2 of 6 0) "Waste Disposal Services" shall mean the collection, transfer, transport, recycling, processing and/or disposal of residential, and commercial, industrial solid waste and solid waste generated at temporary construction and demolition sites under contract to the City through a franchise or other exclusive or non-exclusive agreement. (k) 'Waste Services Provider" shall mean any entity identified in Section 16- 40 of this Article and any subcontractor of such an entity providing Waste Disposal Services. Section 3. Section 16-41 is added to Chapter 16 of the Santa Ana Municipal Code to read in full as follows: Sec. 16-41. Employee Retention/Preferential Hiring/Wage Maintenance (a) Within ten (10) days of the execution of a Transfer Document, an Incumbent Operator shall provide to the New Operator and the Executive Director of Public Works a list of all of the employees of the Incumbent Operator of a Waste Services Provider, including each employee's name, last know address, date of hire and job classification at the time of the transfer. The New Operator shall offer employment at an Establishment to all Qualified Displaced Workers. (b) All New Operator work hours performed by a Waste Services Provider must be performed, to the extent feasible, by Qualified Displaced Workers. Nothing herein shall be construed as requiring the New Operator to create additional positions that the New Operator does not need. However, prior to reducing the amount of work hours or positions utilized to perform waste disposal services at an Establishment, a New Operator must obtain written approval from the Executive Director of Public Works. (c) A New Operator shall not discharge any Qualified Displaced Worker, except for cause, for at least one-hundred-eighty (180) days from the effective date of a Transfer Document, or the date on which the New Operator actually begins operating the Waste Services Provider, whichever is later. (d) At the end of such 180-day period, the New Operator (or subcontractor, where applicable) shall perform a written performance evaluation for each employee retained pursuant to this ordinance. If the employee's performance during such 180-day period is satisfactory, the New Operator (or subcontractor) shall offer the employee continued employment. (e) In the event that, during the one-hundred-eighty (180) day transition period described in Section 16-42 above, the New Operator determines that fewer positions are needed to deliver and maintain the contracted service, the New Operator shall retain Qualified Displaced Workers by seniority. Seniority shall be determined by reference to the collective bargaining agreement covering the Ordinance No. NS-2807 Page 3 of 6 Qualified Displaced Workers, if one exists, or, if no such agreement exists, then by reference to the initial hire date with the Incumbent Operator of each Qualified Displaced Worker. Any Qualified Displaced Workers not retained by the New Operator shall be placed on a preferential hiring list and considered by the New Operator for any job openings that may arise. (f) Each New Operator must provide all employees of a Waste Services Provider 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 Incumbent Operator and such employees. For purposes of this Article, "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. Section 4. Section 16-42 is added to Chapter 16 of the Santa Ana Municipal Code to read in full as follows: Sec. 16-42. Retaliation and Discrimination Barred; No Waiver of Rights; Enforcement (a) No Incumbent Operator or New Operator 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 ordinance. (b) Any waiver by a Qualified Displaced Worker of any or all of the provisions of this ordinance 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 Incumbent Operator or New Operator to have a waste or recycling worker waive rights given by this ordinance shall constitute a willful violation of this ordinance. (c) In addition to any rights and remedies which an employee might have, under any federal or state statute or regulation or municipal ordinance or regulation or at common law, any employee claiming a violation of this ordinance may bring an action against an Incumbent Operator or New Operator in the Superior Court of the State of California, to enforce the provisions of this ordinance, and may seek liquidated damages, back pay, any other actual damages, reinstatement, injunctive relief, punitive damages, and any other legal or equitable relief, as permitted by law. Violations of this ordinance are declared to irreparably harm the public and covered employees generally. Ordinance No. NS-2807 Page 4 of 6 (d) The terms of this ordinance shall be included, by reference, in all future Waste Disposal Services contracts entered into by the City, and all future Waste Services Providers shall include the terms of this ordinance, by reference, in all contracts or subcontracts which the Waste Services Provider may enter into involving Waste Disposal Services. Section 5. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this 7th day of September, 2010 TO FORM: Fletcher iey YES: Councilmembers NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: ,Alvarez, Benavides, Bustamante, Martinez, Pulido Tinalero, Sarmiento (7) None (0) None (0) None (0) Ordinance No. NS-2807 Page 5 of 6 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS-2780 to be the original ordinance adopted by the City Council of the City of Santa Ana on September 7, 2010 and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS-2807 Page 6 of 6