Developments Under The Displaced Building Service Worker Protection Act

The New York City Displaced Building Service Worker Protection Act (DBSWA), NYC Administrative Code §22-505 (DBSWA or the Act), which was signed into law in November 2002, significantly changed the landscape in connection with labor and employment issues upon sales or transfers of real property in New York City, or changes in building service contractors.

While before the Act's enactment, purchasers or replacement managing agents or contractors could not refuse to hire persons because of their union status or to avoid union obligations, purchasers and replacement contractors had no statutory obligation1to offer to hire a predecessor's employees, and thus there was no presumptive continuance of representation of the employees by the predecessor's union.

The DBSWA requires that any buyer, transferee, or successor employer of most New York City commercial and residential properties offer the incumbent employees jobs after the change in ownership or change in employer for as many jobs as the new employer will have at the property,2 and to keep those employees in employ for at least 90 days unless it has cause for discharge during that "probationary" period. However, it is important to note that the law does not require a buyer or new employer to maintain the existing terms and conditions of employment (e.g., wage rates, benefits, seniority), nor to assume an existing collective bargaining agreement.

The law itself excludes: (1) commercial office buildings of less than 100,000 square feet, (2) residential buildings with fewer than 50 units, and (3) any building in which New York City or any New York City governmental agency occupies 50 percent or more of the rentable square footage. The statute defines "building service employees," that is, those protected by the law, to include janitorial and security employees but not engineering employees, and excludes any person being paid more than $25 per hour, persons working fewer than eight hours per week at the building and persons who have been employed in the building for less than three months.3

This law, although applicable in both union and nonunion properties, was strongly supported during the enactment process by Local 32BJ, Service Employees International Union (Local 32BJ), which represents a large number of employees at such properties in New York City. Although not limited to union buildings, or to those whose employees who are represented by Local 32BJ, the law generally was considered to...