HomeMy WebLinkAbout2020-11-17; City Council; ; Impacts of COVID-19 on the City’s Tourism Workforce and Consideration of a Potential Worker Recall OrdinanceCA Review CKM
Meeting Date: Nov. 17, 2020
To: Mayor and City Council
From: Scott Chadwick, City Manager
Staff Contact: Sheila Cobian, Assistant to the City Manager
sheila.cobian@carlsbadca.gov, 760-494-2917
Subject: Impacts of COVID-19 on the City’s Tourism Workforce and Consideration
of a Potential Worker Recall Ordinance
Recommended Action
Consider a request from City Council Member Bhat-Patel to discuss the impacts of COVID-19 on
the city’s tourism workforce and a potential worker recall ordinance.
Executive Summary/Discussion
On Oct. 27, 2020, Council Member Bhat-Patel submitted the attached email (Exhibit 1) to the
city manager requesting that the topic of the impacts of COVID-19 on the city’s tourism
workforce and consideration of a potential worker recall ordinance be place on an upcoming
City Council agenda1. Council Member Bhat-Patel also provided a sample ordinance (Exhibit 2)
as well as the Aug. 25, 2020, staff report from the City of San Diego (Exhibit 3) where an
emergency recall and retention ordinance for employees working in the service and hospitality
industry due to the declared state of emergency from COVID-19 was considered and adopted.
The ordinance being proposed for consideration by Council Member Bhat-Patel would ensure
that workers in the City of Carlsbad’s hospitality industry who have been discharged, either by
furlough or lay off, due to the public health emergency, would enjoy the right to return to their
previous jobs when business activity resumes so that they can help in the economic recovery.
Fiscal Analysis
No city funding is being requested.
1 Carlsbad Municipal Code Section 1.20.060.C states, “The city manager is responsible for scheduling matters for
consideration by the council based on established council priorities, the city’s business and governmental needs,
and requirements of applicable law. Items of business may be placed on the agenda by any member of the council,
the city manager or the city attorney, or by council action. Council-originated items must be submitted to the city
manager not less than seven days before the date of the council meeting at which the member desires the item to
appear on the agenda. Nothing in this section precludes a council member from requesting council action to place
an item on the agenda for a future meeting.”
Nov. 17, 2020 Item #13 Page 1 of 29
Next Steps
If the City Council decides to move forward with such an ordinance, staff would return to City
Council with an urgency ordinance on Dec. 8, 2020, for City Council consideration.
Environmental Evaluation (CEQA)
This action does not constitute a “project” within the meaning of the California Environmental
Quality Act under California Public Resources Code Section 21065 in that it has no potential to
cause either a direct physical change, or a reasonably foreseeable indirect physical change, in
the environment and therefore does not require environmental review.
Public Notification
Public notice of this item was posted in accordance with the Ralph M. Brown Act and it was
available for viewing at least 72 hours prior to the scheduled meeting date.
Exhibits
1.Oct. 27, 2020, request from Council Member Bhat-Patel to place an item on a City Council
agenda (email correspondence)
2.Sample ordinance
3.Aug. 25, 2020, City of San Diego staff report
Nov. 17, 2020 Item #13 Page 2 of 29
1
Sheila Cobian
Subject:FW: Request to Add an Agenda Item for 11/17/2020
Importance:High
From: Priya Bhat-Patel
Sent: Tuesday, October 27, 2020 1:56 PM
To: Scott Chadwick <Scott.Chadwick@carlsbadca.gov>; Celia Brewer <Celia.Brewer@carlsbadca.gov>
Subject: Request to Add an Agenda Item for 11/17/2020
Hi Scott and Celia,
Pursuant to CMC § 1.20.060: "Items of business may be placed on the agenda by any member of the council..."
Consistent with the above, I would like to request that an agenda item be added to the Carlsbad City Council
agenda on 11/17/2020 to discuss and take action as appropriate on the following:
The impacts of COVID-19 on the city’s tourism workforce and a potential worker recall ordinance.
Please let me know if you need more specificity or if you all have any questions.
Thank you!
Priya Bhat-Patel
Council Member, District 3
City of Carlsbad
1200 Carlsbad Village Dr.
Carlsbad, CA 92008
www.carlsbadca.gov
760-434-2830 (o)| 760-473-8726 (c)
priya.bhat-patel@carlsbadca.gov
Exhibit 1
Nov. 17, 2020 Item #13 Page 3 of 29
City of Carlsbad COVID-19 Worker Recall and Retention Ordinance
WHEREAS, on January 31, 2020, the Secretary of Health and Human Services declared a public health emergency in response to a novel coronavirus, SARS-CoV-2, which causes the COVID-
19 disease (COVID-19); and WHEREAS, on February 19, 2020, the San Diego County Board of Supervisors ratified a declaration of local health emergency related to COVID-19; and
WHEREAS, on March 4, 2020, Governor Gavin Newsom (Governor) proclaimed a State of Emergency to exist in California as a result of the threat of COVID-19; and WHEREAS, on March 16, 2020, the City Manager of the City of Carlsbad (City Manager) proclaimed the existence of a local emergency related to the COVID-19 threat, which was
ratified by the Carlsbad City Council (City Council) on March 17, 2020; and WHEREAS, since that time, the Governor, the City Manager, and the County of San Diego Public Health Official have all issued various directives and guidance to state and local residents, including stay-at-home directives and restrictions on certain business activities; and
WHEREAS, as a result of the COVID-19 pandemic and the stay-at-home directives, many workers in the City are facing significant job and economic insecurity; and WHEREAS, workers in the Carlsbad service and hospitality industries are especially impacted
by layoffs because travel has been severely limited, and businesses cannot easily adjust to the lack of patronage; and WHEREAS, hundreds of Carlsbad hotel service workers have already been separated from their jobs during the COVID-19 pandemic, and many more are expected to face separation in the
coming months; and WHEREAS, while federal, state, and local programs, and efforts by certain non-profits, have provided some support to hotel workers, the economy may better recover if impacted workers
can return to their previous jobs as the COVID-19 pandemic recedes and business activities
return to normal levels; and WHEREAS, this ordinance ensures fair employment practices during the economic upheaval resulting from the COVID-19 pandemic; and
WHEREAS, Carlsbad City Charter (Charter) sections 100-101 affirms the City of Carlsbad to have full power and authority to adopt, make, exercise and enforce all legislation, laws and regulations with respect to municipal affairs over which the City Council governs; and
WHEREAS, the Council adopts this ordinance through the police powers vested in the City
under the California Constitution; and
Exhibit 2
Nov. 17, 2020 Item #13 Page 4 of 29
NOW, THEREFORE,
BE IT ORDAINED, by the Council of the City of Carlsbad, as follows:
Section 1. That Title 5 of Carlsbad Municipal Code is amended by adding new Article 5,
Chapter 5.70 through 5.80.___ to read as follows:
Title 5, Chapter 5.70: City of Carlsbad Service COVID-19 Worker Recall Ordinance
5.70.010. Purpose and Intent.
Since the declaration of a national public health emergency on January 31, 2020, the COVID-19
pandemic has caused many hospitality employers in the City to discharge, lay off, and furlough
workers. Through this Title, the City seeks to ensure that these workers enjoy a right to return to
their previous jobs when business activity resumes in order to aid economic recovery.
This Chapter shall be cited as the City of Carlsbad COVID-19 Hotel Worker Recall Ordinance.
5.70.020. Definitions.
For purposes of this Chapter defined terms appear in italics. The following definitions apply in
this Chapter:
“City” means the City of Carlsbad.
“Customary seasonal work” means work performed by an individual during approximately the
same part of each calendar year, such as summer or winter.
“Employer” means a hotel employer.
“Hotel employer” means the owner, operator, or manager of a residential building located within
the geographical boundaries of the City with at least 200 guest rooms that provides temporary
lodging in the form of overnight accommodations to transient patrons, and may provide additional
services, such as conference and meeting rooms, restaurants, bars, or recreation facilities available
to guests or to the general public. A hotel employer also includes the owner, operator, manager, or
lessee of any contracted, leased, or sublet premises connected to or operated in conjunction with
the building’s purpose, or providing services at the building.
“Laid-off employee” means any individual who, in a particular week, performs at least two hours
of work within the geographic boundaries of the City for an employer, has a length of service with
the employer of six months or more in the 12 months preceding March 4, 2020, and whose most
recent separation from active service, or failure to be scheduled for customary seasonal work,
occurred on or after March 4, 2020, and before any termination of the Declaration of Emergency
proclaimed by California’s Governor on March 4, 2020, and was due to a government shutdown
order, lack of business, a reduction in force or other, economic, non-disciplinary reason. For
purposes of this Chapter, a laid-off employee does not include a manager, supervisor, or
confidential employee.
“Length of service” means the total of all periods of time during which an employee has been in
active service, including periods of time when the employee was on leave or on vacation.
Nov. 17, 2020 Item #13 Page 5 of 29
5.70.030. Right of Recall.
(a) An employer must offer its laid-off employees in writing, by mailing to their last known
physical address, and by email and text message to the extent the employer possesses such
information, all job positions which become available after this Chapter’s effective date for which
the laid-off employees are qualified. A laid-off employee is qualified for a position if the employee:
(1) held the same or similar position at the site of employment at the time of the laid-off
employee’s most recent separation from active service with the employer; or
(2) is or can be qualified for the position with the same training that would be provided to
a new employee hired into that position.
The employer must offer positions to laid-off employees in an order of preference
corresponding to categories (1) and (2) in the preceding sentence. Where more than one
employee is entitled to preference for a position, the employer must offer the position to
the laid-off employee with the greatest length of service for the employer.
(b) A laid-off employee who is offered a position pursuant to this Chapter must be given no
less than 3 business days in which to accept or decline the offer. An employer may make
simultaneous, conditional offers of employment to laid-off employees, with the final offer of
employment conditioned on application of the priority system set forth in Municipal Code section
5.70.030 (a).
(c) An employer that declines to recall a laid-off employee on the grounds of lack of
qualifications and instead hires someone other than the laid-off employee must provide the laid-
off employee a written notice of the non-selection within 30 days of the date of hire documenting
the reasons for such decision. The written record must be retained for no less than 3 years and
made available to the City or laid-off employee upon request.
(d) An employer must provide each laid-off employee with a written notice of the date of their
lay off and their rights under this Chapter. The employer must provide such written notice within
30 days of the effective date of this Chapter, if the layoff took place before that date, or at the time
of the lay off if the layoff occurs after that date. Such notice shall be provided in person or to the
laid-off employee’s last known mailing address, and by email to the extent the employer possesses
that information.
(e) An employer must retain the following records for at least 3 years regarding each laid-off
employee: the employee’s full legal name; the employee’s job classification at the time of
separation from employment; the employee’s date of hire; the employee’s last known address of
residence; the employee’s last known email address; the employee’s last known telephone number;
and a copy of the written notice regarding the layoff provided to the employee. For purpose of this
Chapter, the 3 years is measured from the date of the date of the written notice provided under
subsection (d).
(f) The provisions of this Chapter also apply when the ownership of the employer changes due
to a sale, assignment transfer, or other disposition of substantially all assets of the employer, after
Nov. 17, 2020 Item #13 Page 6 of 29
the laid-off employee separates from employment provided the enterprise is conducting the same
or similar operation as before March 4, 2020.
5.70.040. Retaliatory Action Prohibited.
No employer may terminate, refuse to employ, reduce in compensation, or otherwise take any
adverse action against any laid-off employee for seeking to enforce his or her rights under this
Chapter by any lawful means, for participating in proceedings related to this Chapter, for opposing
any practice proscribed by this Chapter, or for otherwise asserting rights under this Chapter.
5.70.050. Enforcement.
This Chapter may be enforced as follows:
(a) A laid-off employee may bring an action in the Superior Court of the State of California
against an employer for violations of this Chapter and may be awarded all of the following, as
appropriate:
(1) Hiring and reinstatement rights pursuant to this Chapter.
(2) All actual damages (including, but not limited to, lost pay and benefits) suffered by the
laid-off employee, or for statutory damages in the sum of $1,000, whichever is greater.
(3) Punitive damages, pursuant to California Civil Code Section 3294.
(4) If a laid-off employee is the prevailing party in any legal action taken pursuant to this
Chapter, the court must award reasonable attorney’s fees and costs.
(b) Notwithstanding any provision of this Code or any other ordinance to the contrary, no
criminal penalties shall attach for violation of this Chapter.
5.70.060. No Preemption of Higher Standards.
The purpose of this Chapter is to ensure minimum labor standards. This Chapter not preempt or
prevent the establishment of superior employment standards or the expansion of coverage by
ordinance, resolution, contract, or any other action adopted by the City Council. This Chapter may
not be construed to limit a discharged employee’s right to bring a common law cause of action for
wrongful termination
5.70.070. Severability.
If any subsection, sentence, clause or phrase of this Chapter is for any reason held to be invalid
or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity
of the remaining portions of this Chapter, which shall remain in full force and effect. The City
Council hereby declares that it would have adopted this Chapter and each and every subsection,
sentence, clause and phrase thereof not declared invalid or unconstitutional, without regard to
whether any portion of the article would be subsequently declared invalid or unconstitutional.
The courts are hereby authorized to reform the provisions of this Chapter in order to preserve the
maximum permissible effect of each subsection herein.
Nov. 17, 2020 Item #13 Page 7 of 29
5.70.080. Report.
On or before 60 days prior to the expiration of this Chapter, the City Manager must report to the
City Council on the effectiveness this Chapter in promoting employment stability and on the status
of recovery of employment and business in the affected industries to a state comparable to that
which existed prior to March 4, 2020, and must advise the City Council on the need for further
action.
5.70.090. Sunset Provision.
This Chapter will be effective immediately from the date of adoption by the City Council and will
remain effective for 18 months from the date of adoption and as of that date is repealed, unless
City Council adopts a resolution that extends that date.
Nov. 17, 2020 Item #13 Page 8 of 29
The City of San Diego
Staff Report
DATE ISSUED: 8/25/2020
TO:City Council
FROM: Council District 3
SUBJECT: Consideration of an Emergency Recall and Retention Ordinance for Employees Working in the
Service and Hospitality Industry Due to the Declared State of Emergency from COVID-19
Primary Contact:Molly Chase Phone: (619) 236-6633
Council District(s): Citywide
OVERVIEW:
COVID-19 continues to disrupt San Diego’s local economy, with dramatic impacts on the hospitality and building
services sectors. Prior to COVID-19 circumstances, the tourism sector was a major driver of local economic activity,
particularly providing income for service workers now unemployed in disproportionally high numbers. As San
Diego seeks to plan for economic recovery and stabilize the economy long-term, the proposed Recall and
Retention Ordinance would provide employment certainty for when the business ownership changes, and ensure
that the most experienced employees in these sectors be rehired first to promote continuity and high quality
service as the public re-engages with these businesses.
PROPOSED ACTIONS:
Adopt an emergency ordinance to temporarily implement a recall and retention ordinance for employees working
in the service and hospitality industry in the City of San Diego to address the impacts of COVID-19.
DISCUSSION OF ITEM:
Since the declaration of a national public health emergency on January 31, 2020, the COVID-19 pandemic has
caused building service, hospitality, and travel-related employers in the City to discharge, layoff and furlough
workers at a massive scale. Between March and April approximately 88,100 leisure and hospitality workers in the
San Diego metropolitan statistical area lost their jobs, or 46% of the industry’s workforce in the area, with only 43,300 of those jobs having returned as of July 2020 estimates. Further, SANDAG estimates that the five zip codes
still experiencing the highest unemployment rates are Golden Hill, College Area, City Heights, San Ysidro, and
Logan Heights – neighborhoods home to many service workers. These areas have an average unemployment rate
around 20%, with one in five workers still out of work.
While federal, state, and local programs, and efforts by non-profit organizations in the city have provided some
support in the short-term, workers in these industries need the promise of job security if their employer changes
hands and a return to their previous jobs as the pandemic recedes and business re-open. This ordinance will
minimize economic dislocation, speed the transition back to a functioning and trained labor market, and ensure
fair employment practices while reducing the demand on government-funded social service programs.
The proposed ordinance would remain in effect until six months from the termination of the State of Emergency
proclaimed by the Governor on March 4, 2020. Cities across the State of California including Long Beach, Los
Angeles, and Oakland have enacted similar local ordinances to protect their workers.
Exhibit 3
Nov. 17, 2020 Item #13 Page 9 of 29
2
Recall
When corporate ownership or management of a hotel changes, or when a building owner changes building-service
contractors, the new owner, manager or contractor often hires a new workforce, retaining few, if any, of the
former owner, manager, or contractor’s employees. This results in mass displacement of the hotel’s or building
contractor’s workforce. In cases of qualifying businesses re-opening following the COVID-19 public health
emergency, the ordinance provides procedures for positions to be offered to qualified laid-off employees of that
business in the order in which they were previously hired.
Qualifying laid-off employees are those laid off from hotel businesses with at least 100 guest rooms, with the
exception of managerial, supervisory, and confidential employees; janitorial, maintenance, and security service
worker employees laid off from commercial properties employing ten or more janitorial maintenance or security
service employees; and employees laid off from privately-owned event centers with more than 50,000 square feet
or 5,000 seats used for public performances as described. Qualifying laid-off employees would have performed at least two hours of work in a week within the City’s geographic boundaries for an employer, have a length of
service with the employer of six months or more in the 12 months preceding March 4, 2020 (or in the case of an
event center employee, 3 month or more), and whose separation from service occurred on or after March 4, 2020.
Employers would be required to:
Offer its laid-off employees all job positions which become available after adoption of this ordinance for
which the laid-off employees are qualified.
Provide laid-off employees a written notice of the date of their layoff and their right to recall their
employment within 30 days of the adoption of this Ordinance.
Provide laid-off employees with written notification if the employer declines to recall the laid-off
employee and instead hire someone other than the laid-off employee, as specified.
Retention
A transitional retention period upon change of ownership or operation of a hotel, and upon change in building
services contractor, ensures employment stabilization for a segment of the community. It also alleviates the
demands for social services provided by the city and other local governments due to worker displacement.
Through this ordinance, the city seeks to maintain the welfare and stability of the City hotel and building services
workforces.
In cases of ownership changes in qualifying businesses, the ordinance would establish a 90-day transition period
for eligible employees, as defined, during which such employees may only be dismissed for cause. Following the
90-day transition period, the successor employer shall perform a written performance evaluation for use in
considering continued employment of the employee. Eligible employees are those who have been employed with
a qualifying business six months or longer where managerial, supervisory and confidential are exempt, and who
worked for the qualifying business on or after March 4, 2020, and prior to the transfer of ownership.
Adoption of the proposed ordinance would require incumbent and successor business employers to provide job
classification information on eligible employees, and maintain a preferential hiring list of eligible employees,
respectively, and to post written notice of an employer change of ownership as described.
Employee retention provisions would apply to qualified employees of hotel businesses with at least 100 guest rooms, and commercial properties employing ten or more janitorial maintenance or security service employees.
Fiscal Considerations: The ordinance as proposed applies to private sector employers. The operational impact on
the City would be minimal.
Charter Section 225 Disclosure of Business Interests:
N/A; there is no contract associated with this action.
City Strategic Plan Goal(s)/Objective(s):
Nov. 17, 2020 Item #13 Page 10 of 29
3
Goal 3: Create and sustain a resilient and economically prosperous City with opportunity in every community.
Environmental Impact:
This activity is not subject to CEQA pursuant to CEQA Guidelines Section 15060(c)(2) because the action involves
the denouncement of the deployment of unidentified federal law enforcement agents to the City of San Diego,
which would not result in a direct or reasonably foreseeable indirect physical change in the environment.
Equal Opportunity Contracting Information (if applicable): N/A
Previous Council and/or Committee Actions:
On March 12th, 2020, the Mayor declared a State of Local Emergency regarding the COVID19 threat to the City of
San Diego. City Council unanimously ratified the State of Local Emergency on March 17, 2020.
On July 7th, 2020, the Mayor declared and the City Council approved unanimously a Continued State of Local
Emergency Regarding the COVID-19 Virus in the City of San Diego.
Key Stakeholders and Community Outreach Efforts: UNITE-HERE Local 30, SEIU-USWW, San Diego and Imperial
Counties Labor Council, Center on Policy Initiatives
Molly Chase
Chief of Staff
Nov. 17, 2020 Item #13 Page 11 of 29
Nov. 17, 2020 Item #13 Page 12 of 29
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WHEREAS, many San Diego hotel and janitorial service workers have already been
separated from their jobs during the COVID-19 pandemic, and thousands more are expected to
face separation in the coming months; and
WHEREAS, while federal, state, and local programs, and efforts by certain non-profits,
have provided some support to hotel and janitorial service workers, the economy may better
recover if impacted workers can return to their previous jobs as the COVID-19 pandemic recedes
and business activities return to normal levels; and
WHEREAS, this emergency ordinance ensures fair employment practices during the
economic upheaval resulting from the COVID-19 pandemic; and
WHEREAS, the provisions of this emergency ordinance are severable as provided for
under Municipal Code section 11.0205; and
WHEREAS, San Diego City Charter (Charter) section 11 vests all legislative authority
for the City in the Council; and
WHEREAS, the Council adopts this ordinance through the police powers vested in the
City under the California Constitution; and
WHEREAS, the Council finds there is an emergency necessitating immediate adoption of
the ordinance pursuant to Charter section 295 in order to insure that employees will be restored to
the original jobs in an orderly fashion and reduce the demand on City-funded social services; and
WHEREAS, under charter section 280(a)(3), this ordinance is not subject to veto by the
Mayor because it is an emergency ordinance; and
WHEREAS, under charter section 295(e), a supermajority vote of the City Council is
required for passage of this ordinance; NOW, THEREFORE,
BE IT ORDAINED, by the Council of the City of San Diego, as follows:
Nov. 17, 2020 Item #13 Page 13 of 29
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Section 1. That Chapter 3 of San Diego Municipal Code is amended by adding new
Article 11, Division 1, Sections 311.0101 through 311.0109 to read as follows:
Article 11: City of San Diego COVID-19 Worker Recall and Retention
Division 1: City of San Diego Service COVID-19 Worker Recall Ordinance
§311.0101 Purpose and Intent
Since the declaration of a national public health emergency on January 31, 2020,
the COVID-19 pandemic has caused many building service, hospitality, and
travel-related employers in the City to discharge, lay off, and furlough workers.
Through this Division, the City seeks to ensure that these workers enjoy a right to
return to their previous jobs when business activity resumes in order to aid
economic recovery.
§311.0102 Citation
This Division shall be cited as the City of San Diego COVID-19 Building Service
and Hotel Worker Recall Ordinance.
§311.0103 Definitions
For purposes of this Division defined terms appear in italics. The following
definitions apply in this Division:
City means the City of San Diego.
Commercial property employer means an owner, operator, manager, or lessee,
including a contractor, subcontractor, or sublessee, of a non-residential property
located within the geographical boundaries of the City that employs 1025 or more
Nov. 17, 2020 Item #13 Page 14 of 29
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janitorial, maintenance, or security service employees. Only the janitorial,
maintenance, and security service employees who perform work for a commercial
property employer are covered by this Division.
Customary seasonal work means work performed by an individual during
approximately the same part of each calendar year, such as summer or winter.
Employer means a commercial property employer, a hotel employer, and an event
center employer.
Event center employer means an owner, operator, or manager of a privately-
owned structure of more than 50,000 square feet or 5,000 seats that is used for the
purposes of public performances, sporting events, business meetings, or similar
events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums,
and convention centers. The term event center also includes any contracted,
leased, or sublet premises connected to or operated in conjunction with the event
center’s purpose, including food preparation facilities, ushering services, ticket-
taking services, concessions, retail stores, restaurants, bars, and structured parking
facilities. For purposes of this Division,event center employer does not include a
governmental entity.
Hotel employer means the owner, operator, or manager of a residential building
located within the geographical boundaries of the City with at least 100 200 guest
rooms that provides temporary lodging in the form of overnight accommodations
to transient patrons, and may provide additional services, such as conference and
meeting rooms, restaurants, bars, or recreation facilities available to guests or to
Nov. 17, 2020 Item #13 Page 15 of 29
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the general public. A hotel employer also includes the owner, operator, manager,
or lessee of any contracted, leased, or sublet premises connected to or operated in
conjunction with the building’s purpose, or providing services at the building.
Laid-off employee means any individual who, in a particular week, performs at
least two hours of work within the geographic boundaries of the City for an
employer, has a length of service with the employer of six months or more in the
12 months preceding March 4, 2020, or in the case of an event center employee,
3 months or more in the 12 months preceding March 4, 2020, and whose most
recent separation from active service, or failure to be scheduled for customary
seasonal work, occurred on or after March 4, 2020, and before any termination of
the Declaration of Emergency proclaimed by California’s Governor on March 4,
2020, and was due to a government shutdown order, lack of business, a reduction
in force or other, economic, non-disciplinary reason. For purposes of this
Division, a laid-off employee does not include a manager, supervisor, or
confidential employee.
Length of service means the total of all periods of time during which an employee
has been in active service, including periods of time when the employee was on
leave or on vacation.
§311.0104 Right of Recall
(a) An employer must offer its laid-off employees in writing, by mailing to
their last known physical address, and by email and text message to the
extent the employer possesses such information, all job positions which
Nov. 17, 2020 Item #13 Page 16 of 29
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become available after this Division’s effective date for which the laid-off
employees are qualified. A laid-off employee is qualified for a position if
the employee:
(1) held the same or similar position at the site of employment at the
time of the laid-off employee’s most recent separation from active
service with the employer; or
(2) is or can be qualified for the position with the same training that
would be provided to a new employee hired into that position.
The employer must offer positions to laid-off employees in an order of preference
corresponding to categories (1) and (2) in the preceding sentence. Where more
than one employee is entitled to preference for a position, the employer must offer
the position to the laid-off employee with the greatest length of service for the
employer.
(b) Alaid-off employee who is offered a position pursuant to this Division
must be given no less than 103 business days in which to accept or decline
the offer.An employer may make simultaneous, conditional offers of
employment to laid-off employees, with the final offer of employment
conditioned on application of the priority system set forth in Municipal
Code section 311.0104 (a).
(c) An employer that declines to recall a laid-off employee on the grounds of
lack of qualifications and instead hires someone other than the laid-off
employee must provide the laid-off employee a written notice of the non-
Nov. 17, 2020 Item #13 Page 17 of 29
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selection within 30 days of the date of hire documenting the reasons for
such decision. The written record must be retained for no less than 3 years
and made available to the City or laid-off employee upon request.
(d) An employer must provide each laid-off employee with a written notice of
the date of their lay off and their rights under this Division. The employer
must provide such written notice within 30 days of the effective date of
this Division, if the lay off took place before that date, or at the time of the
lay off if the lay off occurs after that date. Such notice shall be provided in
person or to the laid-off employee’s last known mailing address, and by
email to the extent the employer possesses that information.
(e) An employer must retain the following records for at least 3 years
regarding each laid-off employee: the employee’s full legal name; the
employee’s job classification at the time of separation from employment;
the employee’s date of hire; the employee’s last known address of
residence; the employee’s last known email address; the employee’s last
known telephone number; and a copy of the written notice regarding the
lay off provided to the employee. For purpose of this Division, the 3 years
is measured from the date of the date of the written notice provided under
subsection (d).
(f) The provisions of this Division also apply when the ownership of the
employer changes due to a sale, assignment transfer, or other disposition
of substantially all assets of the employer, after the laid-off employee
Nov. 17, 2020 Item #13 Page 18 of 29
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separates from employment provided the enterprise is conducting the same
or similar operation as before March 4, 2020.
§311.0105 Retaliatory Action Prohibited
No employer may terminate, refuse to employ, reduce in compensation, or
otherwise take any adverse action against any laid-off employee for seeking to
enforce his or her rights under this Division by any lawful means, for participating
in proceedings related to this Division, for opposing any practice proscribed by
this Division, or for otherwise asserting rights under this Division.
§311.0106 Enforcement
This Division may be enforced as follows:
(a) Alaid-off employee may bring an action in the Superior Court of the State of
California against an employer for violations of this Division and may be
awarded all of the following, as appropriate:
(1) Hiring and reinstatement rights pursuant to this Division.
(2) All actual damages (including, but not limited to, lost pay and
benefits) suffered by the laid-off employee, or for statutory
damages in the sum of $1,000, whichever is greater.
(3) Punitive damages, pursuant to California Civil Code Section 3294.
(4) If a laid-off employee is the prevailing party in any legal action
taken pursuant to this Division, the court must award reasonable
attorney’s fees and costs.
(b) Notwithstanding any provision of this Code or any other ordinance to the
contrary, no criminal penalties shall attach for violation of this Division.
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§311.0107 No Preemption of Higher Standards
The purpose of this Division is to ensure minimum labor standards. This Division
does not preempt or prevent the establishment of superior employment standards
or the expansion of coverage by ordinance, resolution, contract, or any other
action adopted by the City Council or the Port of San Diego. This Division may
not be construed to limit a discharged employee’s right to bring a common law
cause of action for wrongful termination.
§311.0108 Report
On or before 60 days prior to the expiration of this Division, the Mayor must report
to the City Council on the effectiveness this Division in promoting employment
stability and on the status of recovery of employment and business in the affected
industries to a state comparable to that which existed prior to March 4, 2020, and
must advise the City Council on the need for further action.
§311.0109 Sunset Provision
This Division will be effective immediately from the date of adoption by the City
Council and will remain effective for 6 months from the date of adoption and as
of that date is repealed unless the City Council enacts an ordinance that rescinds
or extends that date.California Assembly Bill 3216 is chaptered in which case,
this Division will be repealed on January 1, 2021, unless Council enactsadopts a
resolution that extends that date.
Section 2. That Chapter 3, Article 11 of the San Diego Municipal Code is amended by
adding new Division 2, Section 311.0201 through 311.0209 to read as follows:
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Article 11: City of San Diego COVID-19 Worker Recall and Retention
Division 2: City of San Diego COVID-19 Worker Retention Ordinance
§311.0201 Purpose and Intent
Since the declaration of a national public health emergency on January 31, 2020,
the COVID-19 pandemic has caused many building service, hospitality, and
travel-related employers in the City to discharge, lay off, and furlough workers.
Through this Division, the City seeks to ensure fair employment practices for
workers when a business changes ownership during this time of economic
uncertainty.
§311.0202 Citation
This Division shall be cited as the City of San Diego COVID-19 Worker
Retention Ordinance.
§311.0203 Definitions
For purposes of this Division defined terms appear in italics. The following
definitions apply in this Division:
Business means a commercial property business or hotel business.
Change in control means any sale, assignment, transfer, bankruptcy, contribution
or other disposition of all or substantially all of the assets used in the operation of
the business.
City means the City of San Diego.
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Commercial property business means an owner, operator, manager, or lessee,
including a contractor, subcontractor, or sublessee, of a non-residential property
in the City that employs 1025 or more janitorial, maintenance, or security service
employees.
Employment commencement date means the date on which an eligible employee
commences work for the successor business employer in exchange for
compensation under the terms and conditions established by the successor
business employer or as required by law.
Eligible employee means an individual employed by the incumbent business
employer:
(1) who has a length of service with the incumbent business employer
of six months or more;
(2) whose primary place of employment is a business subject to a
change in control;
(3) who is employed or contracted to perform work functions directly
by the incumbent business employer, or by a person who has
contracted with the incumbent business employer to provide
services at the business subject to the change in control; and
(4) who worked for the incumbent business employer on or after
March 4, 2020, and prior to the execution of the transfer document.
Eligible employee does not include a managerial, or supervisory, or
confidential employee.
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Hotel business means the owner, operator, or manager of a building in the City
with at least 100200 guest rooms that provides temporary lodging in the form of
overnight accommodations to transient patrons, and may provide additional
services, such as conference and meeting rooms, restaurants, bars, or recreation
facilities available to guests or to the general public. A hotel business also
includes the owner, operator, manager, or lessee of any contracted, leased, or
sublet premises connected to or operated in conjunction with the building’s
purposes, or providing services to the building.
Incumbent business employer means any person who owns, controls, or operates a
business prior to a change in control.
Length of service means the total of all periods of time during which an employee
has been in active service, including periods of time when the employee was on
leave or on vacation.
Person has the same meaning as defined in Municipal Code section 11.0210.
Successor business employer means the person who owns, controls, or operates a
business after a change in control.
Transfer document means the purchase agreement or other documents creating a
binding agreement to affect the change in control.
§311.0204 Employee Retention
(a) Employer Responsibilities.
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(1) The incumbent business employer must, within 15 days after
execution of a transfer document, provide to the successor
business employer the name, address, date of hire, and job
classification of each eligible employee.
(2) The successor business employer must maintain a preferential
hiring list of eligible employees identified by the incumbent
business employer as set forth in subsection (a)(1) of this section,
and will be required to hire from that list for a period beginning
upon the execution of the transfer document and continuing for
6 months after the business is open to the public under the
successor business employer.
(3) If the successor business employer extends an offer of employment
to an eligible employee, the successor business employer must
retain written verification of that offer for no fewer than three
years from the date the offer was made. The verification will
include the name, address, date of hire, and occupation
classification of each eligible employee.
(b) Transition Employment Period.
(1) Asuccessor business employer must retain each eligible employee
hired pursuant to this Division for no fewer than 90 days following
the eligible employee’s employment commencement date, provided
the successor business employer continues operating for 90 days.
During the 90-day transition employment period, an eligible
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employee must be employed under terms and conditions of
employment established by the successor business employer or as
required by law. The successor business employer must provide an
eligible employee with a written offer of employment for the
transition period. This offer must remain open for at least 10 business
days from the date of the offer.
(2) If, within the period established by subsection (a)(2) to this section,
the successor business employer determines that it requires fewer
employees than were required by the incumbent business employer,
the successor business employer must offer the position to the
eligible employee in the same occupational classification with the
greatest length of service with the incumbent business employer.
(3) During the 90-day transition employment period, the successor
business employer must not discharge without cause an eligible
employee retained pursuant to this Division.
(4) At the end of the 90-day transition employment period, the successor
business employer must perform a written performance evaluation for
each eligible employee retained pursuant to this Division. If the
eligible employee’s performance during the 90-day transition
employment period is satisfactory, the successor business employer
must consider offering the eligible employee continued employment
under the terms and conditions established by the successor business
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employer or as required by law. The successor business employer
must retain a record of the written performance evaluation for a
period of no fewer than 3 years.
(c) Notice of Change in Control.
(1) The incumbent business employer or successor business employer
must post written notice of the change in control at the location of
the affected business within five business days following the
execution of the transfer document. Notice must remain posted
during any closure of the business and for six months after the
business is open to the public under the successor business
employer.
(2) Notice must include, but not be limited to, the name of the
incumbent business employer and its contact information, the name
of the successor business employer and its contact information, and
the effective date of the change in control. Notice must be posted in
a conspicuous place at the business visible to eligible employees,
other employees, and applicants for employment.
§311.0205 Retaliatory Action Prohibited
No incumbent business employer or successor business employer may refuse to
employ, terminate, reduce in compensation, or otherwise take any adverse action
against any eligible employee for seeking to enforce his or her rights under this
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Division by any lawful means, for participating in proceedings related to this
Division, for opposing any practice proscribed by this Division, or for otherwise
asserting rights under this Division.
§311.0206 Enforcement
This Division may be enforced as follows:
(a) An eligible employee may bring an action in the Superior Court of the State
of California against an incumbent business employer or successor business
employer for violations of this Division and may be awarded all of the
following, as appropriate:
(1) Hiring and reinstatement rights pursuant to this Division. For purposes
of this Division, the 90-day transition employment period may not
commence until the eligible employee’s employment commencement
date with the successor business employer.
(2) Front or back pay for each day the violation continues, which must
be calculated at a rate of compensation not less than the higher of:
(i)The average regular rate of pay received by the eligible
employee during the last year of their employment in the same
job classification;
(ii) The most recent regular rate received by the eligible employee
while employed by either the incumbent business employer or
successor business employer;
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(iii) The regular rate received by the individual in the position
during the time that the eligible employee should have been
employed.
(3) Value of the benefits the eligible employee would have received
under the successor business employer’s benefit plans.
(4) If an eligible employee is the prevailing party in any legal action
taken pursuant to this Division, the court will award reasonable
attorney’s fees and costs.
(b) No criminal penalties will be imposed for violation of this Division.
§311.0207 No Preemption of Higher Standards
The purpose of this Division is to ensure minimum labor standards. This Division
does not preempt or prevent the establishment of superior employment standards
or the expansion of coverage by ordinance, resolution, contract, or any other
action adopted by the City Council or the Port of San Diego. This Division may
not be construed to limit a discharged employee’s right to bring a common law
cause of action for wrongful termination.
§311.0208 Report
On or before 60 days prior to the expiration of this Division, the Mayor must report
to the City Council on the effectiveness this Division in promoting employment
stability and on the status of recovery of employment and business in the affected
industries to a state comparable to that which existed prior to March 4, 2020, and
will advise the City Council on the need for further action.
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§311.0209 Sunset Provision
This Division will be effective immediately from the date of adoption by the City
Council and will remain effective for 6 months from the date of adoption and as
of that date is repealed unless the City Council enacts an ordinance that rescinds
or extends that date.California Assembly Bill 3216 is chaptered, in which case,
this Division will be repealed on January 1, 2021, unless Council enactsadopts a
resolution that extends that date.
Section 2. This ordinance is declared to be an emergency measure required for the
immediate preservation of the public peace, safety, health, and welfare pursuant to Charter
section 295, and shall take effect immediately from the day of adoption upon the affirmative vote
of at least six members of the City Council.
APPROVED: MARA W. ELLIOTT, City Attorney
By /s/Thomas J. Brady
Thomas J. Brady
Deputy City Attorney
TJB:jvg:soc:jvg
07/27/2020
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Or.Dept: Council District 3
Doc. No.: 2464198_4
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