HomeMy WebLinkAbout2020-12-08; City Council; CS-387; AN URGENCY ORDINANCE AMENDING CARLSBAD MUNICIPAL CODE TITLE 5, WITH THE ADDITION OF CHAPTER 5.70, HOTEL EMPLOYEE RECALL RIGHTSORDINANCE NO. CS-387
AN URGENCY 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 II 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 the 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, a report by the San Diego Association of Governments on "COVID-
19 Impacts on the San Diego Regional Economy" found the Tourism sector was the hardest hit
employment sector, representing 37% of the jobs lost and 30%, or $1.4 billion, of the wages lost in
2020;and
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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
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
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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, California Government Code Section 36937, subdivision (b), allows the city to adopt
an urgency ordinance that takes effect immediately when the ordinance is for the immediate
preservation of public peace, health or safety; 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 immediately 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:
Chapter 5.70
HOTEL EMPLOYEE RECALL RIGHTS
Sections:
5.70.010 Purpose.
5.70.020 Definitions.
5.70.030 Right of recall.
5.70.040 Notification of rights.
5.70.050 Recordkeeping.
5.70.060 Enforcement.
5.70.070 Exemption for collective bargaining agreement.
5.70.080 No waiver of rights.
5.70.090 Retaliatory action prohibited.
5.70.100 No limits on other rights or conflicts with federal or state law.
5.70.110 Expiration and report.
5.70.120 Severability.
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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.
"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
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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.
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.
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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.
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.
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MATT HALL M
EFFECTIVE DATE: This ordinance shall be effective immediately upon passage and shall be of
no further force and effect as of the date of adoption of the Carlsbad Municipal Code Chapter 5.70,
Hotel Employee Recall Rights During Covid-19 Pandemic ordinance. The City Clerk shall certify the
adoption of this ordinance and cause it to be published at least once in a newspaper of general
circulation in the City of Carlsbad within fifteen days after its adoption.
INTRODUCED, PASSED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 8th 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:
e-e
CELIA A. BREWER, City Attorney
BARBARA NGLESON, City Clerk
(SEAL)
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