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HomeMy WebLinkAbout2020-12-15; City Council; CS-388; AN ORDINANCE AMENDING CARLSBAD MUNICIPAL CODE TITLE 5, WITH THE ADDITION OF CHAPTER 5.70, HOTEL EMPLOYEE RECALL RIGHTSORDINANCE NO. CS-388 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING CARLSBAD MUNICIPAL CODE TITLE 5, WITH THE ADDITION OF CHAPTER 5.70, HOTEL EMPLOYEE RECALL RIGHTS WHEREAS, on January 31, 2020, United States Health and Human Services Secretary Alex M. Azar ll declared a Public Health Emergency for the United States, effective January 27, 2020, in response to COVID-19, a disease caused by a novel coronavirus, SARS-CoV-2; and WHEREAS, on February 14, 2020, the San Diego County Public Health Officer determined there was an imminent and proximate threat to the public health from the introduction of COVID- 19 in San Diego County and declared a Local Health Emergency, which the San Diego County Board of Supervisors ratified on February 19, 2020; and WHEREAS, on March 4, 2020, Governor Gavin Newsom proclaimed a State of Emergency to exist in California because of the threat of COVID-19; and WHEREAS, on March 12, 2020, Governor Newsom issued Executive Order N-25-20, which ordered all residents to heed any orders or guidance of state and public health officials, including the imposition of social distancing measures, to control the spread of COVID-19; and WHEREAS, on March 13, 2020, the President of United States declared a national emergency because of COVID-19; and WHEREAS, on March 16, 2020, the City of Carlsbad's City Manager, in his role as Director of Emergency Services, proclaimed the existence of a local emergency related to COVID-19, which the City Council ratified on March 17, 2020; and WHEREAS, since that time, the Governor and state and county public health officials have issued various directives and guidance to state and local residents, including stay-at-home directives and restrictions on certain business activities; and WHEREAS, the various directives and guidance have resulted in decreased travel and tourism in the City of Carlsbad, preventing local hotel businesses from operating at normal capacity and causing the businesses to discharge, layoff and furlough employees; and WHEREAS, an Oct. 15, 2020, report by the San Diego Association of Governments on "COVID-19 Impacts on the San Diego Regional Economy" found the Tourism sector was the Dec. 15, 2020 Item #9 Page 2 of 9 hardest hit employment sector, representing 37% of the jobs lost and 30%, or $1.4 billion, of the wages lost in 2020; and WHEREAS, a November 2020 report by the San Diego North Economic Development Council on "COVID-19 Impacts on the 78 Corridor" found the five cities along the State Route 78 corridor lost more than 36,000 jobs in the past year, with hotels, restaurants and other hospitality industries being the hardest hit with 11,757 jobs lost; and WHEREAS, on Dec. 3, 2020, the acting state public health director issued a Regional Stay at Home Order effective Dec. 5, 2020, which provides that, if a region's hospital intensive care unit (ICU) capacity falls below 15%: "Except as otherwise required by law, no hotel or lodging entity in California shall accept or honor out of state reservations for non-essential travel, unless the reservation is for at least the minimum time period required for quarantine and the persons identified in the reservation will quarantine in the hotel or lodging entity until after that time period has expired"; and WHEREAS, the Southern California region's hospital ICU capacity is expected to reach this threshold in early December at which time the Regional Stay at Home Order will apply to the region for at least three weeks and continue to apply until hospital ICU capacity projected four weeks out reaches 15%; and WHEREAS, because of the Regional Stay at Home Order and ongoing COVID-19 economic impacts, many more local hotel employees are expected to face separation from their jobs in the coming days, weeks, and months; and WHEREAS, a Nov. 6, 2020 report on "Unemployed with Jobs and without Jobs" by Robert E. Hall of the Hoover Institution and the Stanford University Department of Economics and Marianna Kudlyak of the Federal Reserve Bank of San Francisco found unemployment levels of employees subject to recall return to normal as soon as economic conditions improve while unemployment levels of employees not subject to recall tend to persist, with the employees cycling through short-term jobs, spells of unemployment, and spells out of the labor force before finding stable, but often lower-paying, jobs; and Dec. 15, 2020 Item #9 Page 3 of 9 WHEREAS, the Hall and Kudlyak report also noted a quick post-shutdown recovery is dependent upon laid-off employees being able to return to work without going through the normal hiring market; and WHEREAS, Section 100 of the Charter of the City of Carlsbad affirms the city has the full power and authority to adopt, make, exercise and enforce all legislation, laws and regulations with respect to municipal affairs, subject only to the limitations and restrictions as may be provided in the Charter, in the Constitution of the State of California, and in the laws of the United States; and WHEREAS, Article XI, Section 7 of the California Constitution further authorizes the city to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws; and WHEREAS, to ensure fair employment practices in the local hotel industry during the economic upheaval from the COVID-19 pandemic, to ensure unemployment levels in the local hotel industry return to normal as soon as economic conditions improve, and to aid in a quick post-shutdown recovery for the local economy, the City Council has determined it is necessary for the public peace, health and safety to provide local hotel employees with an assurance that they will be able to return to their former employment once the pandemic recedes and business returns to the local hotel industry. NOW, THEREFORE, the City Council of the City of Carlsbad, California, ordains that: 1. The above recitations are true and correct. 2. Carlsbad Municipal Code Title 5 is amended by adding Chapter 5.70 to read as follows: // // // // I- II // Dec. 15, 2020 Item #9 Page 4 of 9 Chapter 5.70 HOTEL EMPLOYEE RECALL RIGHTS Sections: 5.70.010 5.70.020 5.70.030 5.70.040 5.70.050 5.70.060 5.70.070 5.70.080 5.70.090 5.70.100 5.70.110 5.70.120 Purpose. Definitions. Right of recall. Notification of rights. Recordkeeping. Enforcement. Exemption for collective No waiver of rights. Retaliatory action prohib No limits on other rights Expiration and report. Severability. bargaining agreement. ited. or conflicts with federal or state law. 5.70.010 Purpose. The COVID-19 pandemic and related federal, state and county public health orders have caused many employees working in the City of Carlsbad to face significant job and economic insecurity. Local hotel employees have been especially impacted by layoffs during the COVID-19 pandemic because travel has been severely halted and local hotel employers cannot easily adjust to the resulting lack of patronage. The purpose of this chapter is to ensure fair employment practices in connection with the recall of employees subjected to pandemic-related layoffs in the local hotel industry and to aid the local economy in recovering from the pandemic's adverse effects. 5.70.020 Definitions. The following definitions apply in interpreting and enforcing this chapter: "Employee" means an individual who performs at least ten hours of work in a particular week for the employer, is not an independent contractor, and is not a supervisor within the meaning of the National Labor Relations Act (see 29 U.S.C. § 152(11)). "Employer" means a person who owns or operates a hotel and employs or exercises control over the wages, hours, or working conditions of an employee. "Hotel" means an establishment within the geographic boundaries of the City of Carlsbad with at least 200 guest rooms that provides accommodations and other services for travelers and tourists. The number of guest rooms shall be determined based on the hotel's room count on its opening day, or on December 31, 2019, whichever is greater. "Laid-off employee" means an employee who was employed by a hotel employer for 6 months or more at the same hotel site in the 12 months preceding March 4, 2020, and whose most recent separation from active service with the employer was due to a public health directive, government shutdown order, lack of business, reduction in force, or other non-disciplinary economic reason related to the COVID-19 pandemic. There is a rebuttable presumption that a laid-off employee's separation from active service with the employer on or after March 4, 2020, was due to a non-disciplinary economic reason. "Length of service" means the total of all periods of time during which an employee has been in active service to an employer, including periods of time when the employee was on leave or vacation. Dec. 15, 2020 Item #9 Page 5 of 9 "Person" means an individual, corporation, partnership, limited partnership, limited liability partnership, limited liability company, business trust, estate, trust, association, joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign. 5.70.030 Right of recall. A. An employer shall offer a laid-off employee in a writing sent to the employee's last known mailing address, and to the employee's last known email address and text message phone number if the employer possesses this information, all positions available after the effective date of this chapter for which the laid- off employee is qualified. A laid-off employee is qualified for a position if the employee either: 1. Held the same or similar position at the same employment site at the time of the 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 the position. The employer shall offer available positions to a laid-off employee in an order of preference corresponding to preceding paragraphs (A)(1) and (A)(2). An employer may make simultaneous, conditional offers of employment to a laid-off employee, with the final offer of employment conditioned on the application of the priority system in preceding paragraphs (A)(1) and (A)(2). If more than one laid-off employee is entitled to preference for a position, the employer shall offer the position to the laid-off employee with the greatest length of service with the employer in the available position at the employment site. B. An employer is not required to offer available positions to a laid-off employee under this chapter if either: 1. After the employee's most recent separation from active service, the employer learned the employee engaged in an act of dishonesty, violation of law, violation of policy or rule, or other misconduct that would have resulted in the employee's disciplinary separation from employment had the employer known about the misconduct before the employee's most recent separation from active service; or 2. The employer separated the employee after March 4, 2020, and before the effective date of this chapter and the employer and employee executed a severance agreement in which the employee agreed to a general release of claims against the employer. C. A laid-off employee who is offered a position pursuant to this chapter shall have 3 business days from receipt of the offer, but not more than 5 business days from the sending of the offer, to accept or decline the offer. D. 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 occurring after March 4, 2020, provided the employer conducts the same or similar operation as before March 4, 2020. 5.70.040 Notification of rights. A. A hotel employer must provide laid-off employees with written notice of their rights under this chapter. For a layoff that occurs after the effective date of this chapter, the notice must be provided at the time of the layoff. For a layoff that occurred before the effective date of this chapter, the notice must be provided within 30 days of the effective date of this chapter and must be sent to the laid-off employee's last known mailing address, and to the employee's last known email address if the employer possesses this information. B. Laid-off employees who have not been selected for recall must be provided with written notice of their non-selection by the hotel employer within 30 days of the date of their non-selection documenting the reasons for their non-selection. Dec. 15, 2020 Item #9 Page 6 of 9 5.07.050 Recordkeeping. A hotel employer must retain the following records for each laid-off employee for at least 3 years following the laid-off employee's separation from employment: the employee's full legal name, the employee's job title/classification at the time of separation from employment, the employee's date of hire, the employee's last known mailing address, the employee's last known email address, the employee's last known telephone number, and a copy of the notice required by Section 5.07.040. 5.70.060 Enforcement. A. A laid-off employee may enforce this chapter by bringing a civil action in state court in the County of San Diego. Before filing the civil action, the laid-off employee must, within 30 calendar days of the date the employee knows or should have known of a violation of this chapter, provide the employer with: 1. Written notice of the provisions of this chapter that the employer is believed to have violated and the facts supporting the violation; and 2. At least 15 business days from receipt of the written notice to cure the violation. B. If the laid-off employee prevails in the civil action, the court may award the laid-off employee: 1. Hiring and reinstatement rights pursuant to this chapter. 2. Actual damages (including lost pay and benefits) suffered by the laid-off employee, or statutory damages in the sum of $1,000, whichever is greater. 3. Punitive damages under California Civil Code Section 3294 in an amount not to exceed twice the amount of the employee's actual damages for each violation where the conditions of California Civil Code Section 3294(b) are satisfied and clear and convincing evidence establishes the employer is guilty of fraud, oppression or malice with respect to the violation. 4. Reasonable attorney fees and costs, including expert witness fees. C. If the employer prevails in the civil action, the court may award the employer reasonable attorney fees and costs if the court finds the action was frivolous, unreasonable, or groundless when brought, or the laid- off employee continued to litigate after the action clearly became so. D. Notwithstanding any provision of this code, no criminal penalties may be imposed for a violation of this chapter. 5.70.070 Waiver by collective bargaining agreement. The provisions of this chapter may be waived by the collective bargaining agreement if the waiver is explicitly set forth in the agreement or an amendment in clear and unambiguous terms. Unilateral implementation of terms and conditions of employment by either party to a collective bargaining relationship shall not constitute a permissible waiver of any provisions of this chapter. 5.70.080 No waiver of rights. Except for a collective bargaining agreement provision made pursuant to Section 5.70.070, a waiver by an employee of any provisions of this chapter is contrary to public policy and is void and unenforceable. Other than in connection with the bona fide negotiation of a collective bargaining agreement or amendment, any request by an employer to an employee to waive rights provided by this chapter is a violation of this chapter. 5.70.090 Retaliatory action prohibited. No hotel employer shall refuse to employ, discharge, reduce in compensation, or otherwise take any adverse action against an employee for lawfully opposing any practice proscribed by this chapter, participating in proceedings related to this chapter, or asserting rights under this chapter. This section shall also apply to an employee who mistakenly, but in good faith, alleges noncompliance with this chapter. Dec. 15, 2020 Item #9 Page 7 of 9 5.70.100 No limits on other rights or conflicts with federal or state law. A. This chapter does not limit the rights and remedies otherwise available to laid-off employees, including the rights to be free from wrongful termination or unlawful discrimination. B. Nothing in this chapter shall be interpreted or applied to create a right, power, or duty in conflict with federal or state law. The term "conflict" as used in this section means a provision that is preempted under federal or state law. 5.70.110 Expiration and report. The chapter shall remain in effect for 12 months from the date of enactment and is repealed as of that date unless extended by further action of the city council. At least two months prior to the anticipated repeal date, the city manager shall provide the city council with a report discussing the effectiveness of the provisions of this chapter in stabilizing covered employees' employment, recommendations for additional protections that further the intent of this chapter, and whether the provisions of the chapter are still necessary based on the city's recovery from the impacts of the COVID-19 pandemic. 5.70.120 Severability. The provisions of this chapter are severable, and the invalidity of any phrase, clause or part of this chapter shall not affect the validity or effectiveness of the remainder of the chapter. // // // // I- II // // // // // // // // // Dec. 15, 2020 Item #9 Page 8 of 9 EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption; and the City Clerk shall certify the adoption of this ordinance and cause the full text of the ordinance or a summary of the ordinance prepared by the City Attorney to be published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen days after its adoption. INTRODUCED AND FIRST READ at a Regular Meeting of the Carlsbad City Council on the 8th day of December, 2020, and thereafter PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 15th day of December, 2020, by the following vote, to wit: AYES: Blackburn, Acosta, Bhat-Patel, Schumacher. NAYS: Hall. ABSENT: None. APPROVED AS TO FORM AND LEGALITY: CELIA A. BREWER, City Attorney MATT HALL, Mayor BARBARA ENGLESON, City Clerk (SEAL) Dec. 15, 2020 Item #9 Page 9 of 9