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May 16, 2016

Mayor de Blasio Signs Bill Expanding New York City Displaced Building Service Workers Protection Act

On May 10, 2016, Mayor Bill de Blasio signed a bill modifying and significantly expanding protections for building service workers under the New York City Displaced Building Service Workers Protection Act ("DBSWPA" or "Act"), codified as New York City Administrative Code 22-505. The amendments to the DBSWPA take effect immediately.

The original DBSWPA required successor building owners, managers, and contractors to offer employment to incumbent building service workers for 90 days. “Building service workers” includes guards, security officers, fire safety directors, doormen/women, cleaners, janitors, gardeners, superintendents and window cleaners, among others. During the 90-day period, employees are retained, evaluated, and if qualified, offered continued employment. Until the expiration of the 90-day employment period, employees can only be terminated for cause or if the successor employer “determines that fewer building service employees are required to perform building services.” N.Y.C. Admin. Code 22-505.

Key amendments to the DBSWPA include expansion of the definition of “covered employers” to incorporate commercial lessees or tenants with more than 35,000 square feet of space, in addition to the building owners, managers and contractors covered in the original Act. Therefore, if a large commercial tenant terminates a third party contract to directly hire its building service workers, or if it outsources the work to a new contractor, the tenant must comply with the Act.

The salary cap for excluding employees from protection of the DBSWPA increased from $25 to $35 per hour. The amended Act also eliminates the prior exemption for buildings in which New York City leased more than fifty percent of the space.

The amended Act also covers insourcing and outsourcing of building service work by the building owner. Therefore, if building owners or managers decide to obtain building services in-house or outsource work to a contractor, they will be subject to the Act’s provisions. This expansion of coverage safeguards against a building owner or manager’s hiring of building service workers directly or through a third party vendor in an effort to evade the Act's requirements.

Finally, the amended Act expands the remedies for violations thereof, including injunctive relief and reinstatement. The Act also now authorizes courts to award back pay from the date of discharge or refusal to retain until the employee is offered employment or reinstatement, in addition to liquidated damages equal to back pay (i.e., employee’s entitlement to “double” back-pay).

Takeaway for Employers

While the amendments to the Act place additional obligations on building owners, a significant amendment is the Act’s inclusion of large tenants (those with more the 35,000 square feet of commercial space in New York City). Accordingly, large employers that employ building service workers should confirm whether they are now covered by the Act.

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