HomeMy WebLinkAbout2020-12-08; City Council; ; Hotel Employee Recall Rights OrdinanceMeeting Date: Dec. 8, 2020
To: Mayor and City Council
From: Celia A. Brewer, City Attorney
Staff Contact: Cindie K. McMahon, Assistant City Attorney
cindie.mcmahon@carlsbadca.gov, 760-434-2891
Subject: Hotel Employee Recall Rights Ordinance
Recommended Action
1.Introduce and adopt an urgency ordinance amending Title 5 of the Carlsbad Municipal
Code to add Chapter 5.70, providing for a right of recall for local hotel employees laid-
off because of the COVID-19 pandemic.
2.Introduce an ordinance amending Title 5 of the Carlsbad Municipal Code to add Chapter
5.70, providing for a right of recall for local hotel employees laid-off because of the
COVID-19 pandemic.
Executive Summary
Recent reports from the San Diego Association of Governments1 and the San Diego North
Economic Development Council2 indicated the COVID-19 pandemic has had a particularly
profound effect on the hospitality industry. In San Diego county, 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. Among the five cities along the state Route 78 corridor, the hospitality
industry lost 11,757 jobs, down 37% from pre-pandemic levels and representing 33% of the
total jobs lost in the corridor.
Further impacting the hospitality industry, on Dec. 3, 2020, the acting state public health
director issued a Regional Stay at Home Order effective Dec. 5, 2020. The order 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.
1 https://www.sandag.org/uploads/publicationid/publicationid_4712_28193.pdf
2 https://www.sdnedc.org/wp-content/uploads/2020/10/Final-Draft-COVID-19-IMPACTS-ON-THE-78-
CORRIDOR.pdf
Dec. 8, 2020 Item #13 Page 1 of 55
The Southern California region’s hospital ICU capacity is expected to reach this threshold in
early December. Once it does, the Regional Stay at Home Order will apply to it for at least
three weeks and continue to apply until hospital ICU capacity projected four weeks out reaches
15%.
A recent paper 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 Francisco3 indicated unemployment levels of employees subject to
recall return to normal as soon as economic conditions improve. Conversely, 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. The paper also noted a quick post-shutdown recovery will be
dependent upon laid-off employees being able to return to work without going through the
normal hiring process.
The proposed Hotel Employee Recall Ordinance would provide a right of recall for local hotel
employees laid off because of the COVID-19 pandemic. The purpose of the ordinance is to
ensure fair employment practices in connection with these employees’ return to work and to
aid the local economy in recovering from the pandemic’s adverse effects.
Discussion
At the request of Council Member Bhat-Patel, the City Council at its meeting on Nov. 17, 2020
discussed the economic impacts of the COVID-19 pandemic on local hotel employees. The City
Council also discussed whether to adopt an ordinance ensuring local hotel employees laid-off
because of the pandemic had a right to return to their previous jobs when business activity
resumes.
The City Council directed the City Attorney’s Office to return to the City Council on Dec. 8, 2020
with an urgency hotel employee recall rights ordinance for the City Council’s consideration. The
City Council also requested efforts be made through the City Council Ad Hoc Economic
Revitalization Subcommittee to obtain public comment on the proposed ordinance from
affected and interested parties.
Staff prepared a discussion draft of the proposed ordinance for the subcommittee. At its
meeting on Nov. 23, 2020, the subcommittee asked staff to seek public comment on the
discussion draft. Staff publicly posted the discussion draft and distributed it to local hotels, local
business and tourism organizations, a union representing hotel employees, and people and
groups who previously provided public comment on the item or otherwise indicated their
interest.
The subcommittee received four public comments (Exhibit 5), including comments from
hoteliers and a hotel employee union. At its meeting on Nov. 30, 2020, the subcommittee
reviewed the proposed ordinance and the public comments and reached a consensus
recommendation on all provisions of the proposed ordinance except one, which is discussed in
more detail below.
3 https://tinyurl.com/yyzamef8
Dec. 8, 2020 Item #13 Page 2 of 55
The proposed ordinance applies to local hotel employers with at least 200 guest rooms. It
requires the employers to recall employees who were laid off for economic reasons during the
pandemic when they bring workers back as the pandemic’s impacts recede. It does not apply to
employees who signed severance agreements. It also does not apply to employees who were
later found to have committed dischargeable misconduct.
If a hotel employer violates the ordinance, the affected employee may file a lawsuit after first
providing notice to the employer and giving the employer an opportunity to cure the violation.
If the employee prevails in the lawsuit, the court may award the employee hiring and
reinstatement rights, actual damages, attorney fees and costs, and, in appropriate cases,
punitive damages of up to twice the amount of the employee’s actual damages. If the employer
prevails in the lawsuit, the court may award the employer attorney fees and costs if the
employee’s lawsuit was frivolous.
The one point on which the subcommittee did not reach a consensus recommendation is
whether the proposed ordinance should include a provision exempting hotel employees who
are covered by a collective bargaining agreement that contains a right of recall provision.
Mayor Hall recommends the ordinance include such an exemption. Council Member Bhat-Patel
recommends the ordinance exclude such an exemption. The following table provides a
comparison of the language difference between the two versions:
Ordinance language with collective
bargaining agreement exemption (Ex. 1 & 2)
Ordinance language without collective
bargaining agreement exemption (Ex. 3 & 4)
5.70.070 Exemption for collective bargaining agreement.
A collective bargaining agreement in place on
the effective date of this chapter that contains a
right of recall provision supersedes the
provisions of this chapter. When the collective
bargaining agreement expires or its terms are
otherwise open for renegotiation or amendment,
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.
5.70.070 Relationship to employment
contracts and agreements.
This chapter applies to all employees whether
they are represented for purposes of collective
bargaining or are covered by a collective
bargaining agreement. Nothing in this chapter
shall be construed to invalidate or limit the rights,
remedies and procedures of any contract or
agreement that provides greater or equal
protection for employees than are afforded by this
chapter.
Dec. 8, 2020 Item #13 Page 3 of 55
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.
5.70.080 No waiver of rights.
A waiver by an employee of any provisions of this
chapter is contrary to public policy and is void and
unenforceable. Any request by an employer to an
employee to waive rights provided by this chapter
is a violation of this chapter.
Exhibits 1 and 2 contain the urgency and non-urgency versions of the proposed ordinance with
the exemption. Exhibits 3 and 4 contain the urgency and non-urgency versions of the proposed
ordinance without the exemption.
The City of San Diego recently adopted a similar recall ordinance, which is being challenged in
federal court. The lawsuit alleges San Diego’s ordinance violates various provisions of the
federal and state constitutions, is preempted by the federal National Labor Relations Act, and
violates various state laws. More particularly, the lawsuit alleges the ordinance is not limited to
pandemic-related layoffs, undermines existing severance agreements, conflicts with the terms
of existing collective bargaining agreements, retroactively exposes employers to liability for
decisions that were lawful when made, provides for punitive damages under circumstances not
allowed by state law, and requires employers to rehire employees even if there are legitimate
non-discriminatory, non-retaliatory reasons for not rehiring them. The proposed ordinance has
been drafted to avoid these claims.
Under state law, introduction and adoption of the urgency ordinance would require a four-
fifths vote of the City Council. If adopted, the urgency ordinance will take effect immediately.
The companion ordinance mirrors the urgency ordinance except for urgency language and
would require a majority vote of the City Council for introduction. If it is subsequently adopted
by a majority vote, it would take effect 30 days after its adoption and will supplant the urgency
ordinance.
Fiscal Analysis
There is sufficient funding in the budgets for the City Attorney’s Office and City Clerk’s Office to
cover the preparation and publication of the ordinance. Because the ordinance is enforceable
only by a private lawsuit, the City Attorney’s Office does not anticipate the need for an
appropriation to cover enforcement expenses. If a lawsuit is brought to challenge the validity of
the ordinance, the City Attorney’s Office will incur legal expenses to oppose the lawsuit. The
amount of those potential expenses cannot be estimated at this time.
Next Steps
If the City Council adopts the urgency ordinance, it will go into effect immediately and the City
Clerk will publish a summary of it in a newspaper of general circulation within Carlsbad within
15 days.
Dec. 8, 2020 Item #13 Page 4 of 55
If the City Council introduces the non-urgency ordinance, the ordinance would be placed on the
City Council’s Dec. 15, 2020 meeting agenda for adoption. The ordinance will go into effect 30
days after adoption and the City Clerk will publish a summary of it in a newspaper of general
circulation within Carlsbad with 15 days.
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. Urgency ordinance with collective bargaining agreement exemption language
2. Ordinance with collective bargaining agreement exemption language
3. Urgency ordinance without collective bargaining agreement exemption language
4. Ordinance without collective bargaining agreement exemption language
5. Public comments submitted to the City Council Ad Hoc Economic Revitalization
Subcommittee
Dec. 8, 2020 Item #13 Page 5 of 55
ORDINANCE 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
Dec. 8, 2020 Item #13 Page 6 of 55
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
Dec. 8, 2020 Item #13 Page 7 of 55
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.
Dec. 8, 2020 Item #13 Page 8 of 55
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
Dec. 8, 2020 Item #13 Page 9 of 55
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.
Dec. 8, 2020 Item #13 Page 10 of 55
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.
Dec. 8, 2020 Item #13 Page 11 of 55
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)
Dec. 8, 2020 Item #13 Page 12 of 55
ORDINANCE 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 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 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. 8, 2020 Item #13 Page 13 of 55
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. 8, 2020 Item #13 Page 14 of 55
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:
Dec. 8, 2020 Item #13 Page 15 of 55
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 bargaining agreement.
No waiver of rights.
Retaliatory action prohibited.
No limits on other rights or conflicts with federal or state law.
Expiration and report.
Severability.
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. 8, 2020 Item #13 Page 16 of 55
"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. 8, 2020 Item #13 Page 17 of 55
5.07.050 Record keepi ng .
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. 8, 2020 Item #13 Page 18 of 55
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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Dec. 8, 2020 Item #13 Page 19 of 55
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 day of , 2020, by the following vote, to wit:
AYES:
NAYS:
ABSENT:
APPROVED AS TO FORM AND LEGALITY:
CELIA A. BREWER, City Attorney
MATT HALL, Mayor
BARBARA ENGLESON, City Clerk
(SEAL)
Dec. 8, 2020 Item #13 Page 20 of 55
ORDINANCE NO. .
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 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 hardest hit
employment sector, representing 37% of the jobs lost and 30%, or $1.4 billion, of the wages lost in
2020; and
Dec. 8, 2020 Item #13 Page 21 of 55
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
Dec. 8, 2020 Item #13 Page 22 of 55
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 Relationship to employment contracts and agreements.
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.
Dec. 8, 2020 Item #13 Page 23 of 55
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 two 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
Dec. 8, 2020 Item #13 Page 24 of 55
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 10 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 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.
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.
Dec. 8, 2020 Item #13 Page 25 of 55
5.70.070 Relationship to employment contracts and agreements.
This chapter applies to all employees whether they are represented for purposes of collective bargaining or are
covered by a collective bargaining agreement. Nothing in this chapter shall be construed to invalidate or limit the
rights, remedies and procedures of any contract or agreement that provides greater or equal protection for
employees than are afforded by this chapter.
5.70.080 No waiver of rights.
A waiver by an employee of any provisions of this chapter is contrary to public policy and is void and
unenforceable. 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.
Dec. 8, 2020 Item #13 Page 26 of 55
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 __ day of ________, 2020, by the following vote, to wit:
AYES:
NAYS:
ABSENT:
APPROVED AS TO FORM AND LEGALITY:
_________________________________
CELIA A. BREWER, City Attorney
_________________________
MATT HALL, Mayor
_________________________
BARBARA ENGLESON, City Clerk
(SEAL)
Dec. 8, 2020 Item #13 Page 27 of 55
ORDINANCE NO. .
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 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 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
Exhibit 4
Dec. 8, 2020 Item #13 Page 28 of 55
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. 8, 2020 Item #13 Page 29 of 55
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:
Dec. 8, 2020 Item #13 Page 30 of 55
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 Relationship to employment contracts and agreements.
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.
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 two 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. 8, 2020 Item #13 Page 31 of 55
“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 10 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 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.
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
Dec. 8, 2020 Item #13 Page 32 of 55
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 Relationship to employment contracts and agreements.
This chapter applies to all employees whether they are represented for purposes of collective bargaining
or are covered by a collective bargaining agreement. Nothing in this chapter shall be construed to invalidate
or limit the rights, remedies and procedures of any contract or agreement that provides greater or equal
protection for employees than are afforded by this chapter.
5.70.080 No waiver of rights.
A waiver by an employee of any provisions of this chapter is contrary to public policy and is void and
unenforceable. 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.
Dec. 8, 2020 Item #13 Page 33 of 55
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.
Dec. 8, 2020 Item #13 Page 34 of 55
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
______ day of __________, 2020, and thereafter
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the __ day of ________, 2020, by the following vote, to wit:
AYES:
NAYS:
ABSENT:
APPROVED AS TO FORM AND LEGALITY:
_________________________________
CELIA A. BREWER, City Attorney
_________________________
MATT HALL, Mayor
_________________________
BARBARA ENGLESON, City Clerk
(SEAL)
Dec. 8, 2020 Item #13 Page 35 of 55
SUMMARY OF COMMENTS RECEIVED ON
DISCUSSION DRAFT OF THE HOTEL EMPLOYEE RECALL RIGHTS ORDINANCE
5.70.020 Definitions
“Laid-off employee” means an employee who was employed by a hotel employer for 6 months or more 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.
Select Hotel Properties PROPOSED CHANGE:
“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.
LEGOLAND Resort COMMENT:
Clarify the specific job/roles that are considered roles held by “Laid Off Employee.” Given the multiple roles our
employees can perform given our unique resort operation, we need more specificity about the ordinances
scope and application.
Dec. 8, 2020 Item #13 Page 36 of 55
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 be given at least 5 business days to accept or decline the offer.
The 5-day acceptance period starts on the later of the date of the mailing of the writing, the sending of the email message, or the sending of
the text message referenced in paragraph (A) of this section.
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.
UNITE HERE Local 30 COMMENT re Section B: Remove 5.70.030(B)(1)
UNITE HERE Local 30 COMMENT re Section C: The date from which the employee must respond to an offer to return to work
should run from when they receive the offer, not from when it is sent.
Dec. 8, 2020 Item #13 Page 37 of 55
Select Hotel Properties PROPOSED CHANGE to Section C:
C. A laid-off employee who is offered a position pursuant to this chapter shall be given at least 3 business days to
accept or decline the offer. The 3-day1 acceptance period starts on the later of the date of the mailing of the
writing, the sending of the email message, or the sending of the text message referenced in paragraph (A) of this
section.
LEGOLAND Resort COMMENT re Section B(2):
It has been LEGOLAND’s consistent practice to offer generous severance compensation to any full-time employee
laid off as a result of this unprecedented crisis. This has been our policy whether the employee held a management
or line level position. We submit that those employees accepting the offered severance should be excluded from
any recall requirements under any recall ordinance.
5.70.040 Notification of rights.
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.
UNITE HERE Local 30 COMMENT: Add the following provision:
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.
1 Comment letter has this as “5-day” but that is inconsistent with the proposed change to 3 business days from the previous sentence.
Dec. 8, 2020 Item #13 Page 38 of 55
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 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.
Select Hotel Properties PROPOSED CHANGE to Section A:
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, within fourteen calendar days of the date the
employee knows or should have known of a violation of the ordinance, must provide the employer with:
UNITE HERE Local 30 COMMENT re Section A: This section is problematic and will make enforcement difficult for workers.
What form of written notice must be provided by the worker? To whom? What if the worker does not know of
all of the employer’s violations (and, in fact, discovers some of them in the course of its action against the
employer)? Is the worker then unable to proceed on these additional violations because it has not provided
notice of them before filing suit?
LEGOLAND California Resort COMMENT re Section A(2): Shorten notice period for alleged violations to 14 days.
Dec. 8, 2020 Item #13 Page 39 of 55
5.70.060 Enforcement
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 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.
UNITE HERE Local 30 COMMENT re Section B: A provision should be added that provides treble damages if the employer
retaliates against any worker for asserting their rights under the ordinance.
UNITE HERE Local 30 COMMENT re Section B(2): An employee should be able to recover compensatory damages, not just lost
pay and benefits.
UNITE HERE Local 30 COMMENT re Section B(3): Punitive damages should not be limited if in fact an employee is able to prove
fraud, oppression or malice. Punitive and compensatory damages should be awarded for reckless disregard of
the requirements in the ordinance.
UNITE HERE Local 30 COMMENT re Section B(4): Reasonable attorney fees and costs, including expert witness fees, should be
mandated if the plaintiff prevails rather than being in the court’s discretion.
5.70.060 Enforcement.
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.
UNITE HERE Local 30 COMMENT re Section C: This provision should be removed from the ordinance.
Dec. 8, 2020 Item #13 Page 40 of 55
5.70.070 Exemption for collective bargaining agreement.
A collective bargaining agreement in place on the effective date of this chapter that contains a right of recall provision supersedes the
provisions this chapter. When the collective bargaining agreement expires or its terms are otherwise open for renegotiation or amendment,
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.
UNITE HERE Local 30 PROPOSED CHANGE:
This Chapter applies to all employees as defined herein regardless whether they are represented for purposes
of collective bargaining or are covered by a collective bargaining agreement. Nothing in this Ordinance shall be
construed to invalidate or limit the rights, remedies and procedures of any contract or agreement that provides
greater or equal protection for employees than are afforded by this Ordinance.
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.
UNITE HERE Local 30 PROPOSED CHANGE:
Except for a collective bargaining agreement provision made pursuant to Section 5.70.070, aA 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, aAny
request by an employer to an employee to waive rights provided by this chapter is a violation of this chapter.
Dec. 8, 2020 Item #13 Page 41 of 55
5.70.090 Retaliatory action prohibited.
No hotel employer shall discharge, reduce in compensation, or otherwise discriminate 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.
UNITE HERE Local 30 PROPOSED CHANGE:
No hotel employer shall discharge, reduce in compensation, or otherwise take an adverse action discriminate
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.
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.
UNITE HERE Local 30 PROPOSED CHANGE to Section B:
B. No Preemption of Higher Standards. The purpose of this Chapter is to ensure minimum labor
standards. This Chapter does not preempt or prevent the establishment of superior employment standards
(including higher wages) or the expansion of coverage by ordinance, resolution, contract, or any other action of
the [political subdivision]. This Chapter shall not be construed to limit a discharged Employee’s right to bring a
common law cause of action for wrongful termination.
Dec. 8, 2020 Item #13 Page 42 of 55
5.70.110 Expiration and report.
The chapter shall remain in effect until 12 months after the city council ends the local pandemic state of emergency 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.
LEGOLAND California Resort COMMENT: Modify Ordinance expiration date to March 31, 2021 and only extend it if required due to the
then current state of emergency.
Select Hotel Properties PROPOSED CHANGE:
The chapter shall remain in effect until 12 months from the date of enactment after the city council ends the
local pandemic state of emergency and is repealed as of that date unless extended by further action of the city
council. At least two months prior to the anticipated expiration 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.
Dec. 8, 2020 Item #13 Page 43 of 55
From: Tony Bona <tonybonafide@gmail.com>
Sent: Tuesday, November 24, 2020 5:01 PM
To: Business <Business@CarlsbadCA.gov>
Subject: Re: Public Input Request: Carlsbad Hotel Worker Recall Ordinance
ABSOLUTELY NO! Government over-reach must stop. This is only on the agenda because Bhat-Patel
and friends are endorsed by unions. Do NOT go further with this no matter how many times Molly and
the 5 others from Omni call in. What is wrong with you? Are you not smart enough to know when this
city is being played? Chadwick - stand your ground or move on. Same with Brewer. Circulate your
resumes because Carlsbad is NOT what is being perpetuated. BE REAL!
Dec. 8, 2020 Item #13 Page 44 of 55
VIA ELECTRONIC MAIL November 27, 2020 Mayor Matt Hall Councilperson Dr. Priya Bhat-Patel
David Graham City Staff Member Ad Hoc City Council Economic Revitalization Committee City of Carlsbad 1200 Carlsbad Village Dr. Carlsbad, CA 92008 clerk@carlsbadca.gov
RE: City Council Meeting Agenda Item #13: Worker Recall Ordinance
Dear Mayor, Members of the City Council, Staff and Economic Revitalization Committee:
On behalf or LEGOLAND California Resort, we appreciate the opportunity to provide input on the draft Worker Recall Ordinance. We are not opposed to the proposed ordinance although we see that certain modifications would allow businesses to better deal with the ordinance’s financial and administrative requirements while still facilitating the Council’s overarching goals regarding employee recalls. As a major representative of a vital business community, LEGOLAND has been hard hit by the forced closure mandated by our state government. We have taken great measures to protect our employees across our resort offering unprecedented support in the face of little to no trading since March 14th. Given the statewide shutdown, we were forced to begin furloughing employees in April but for those individuals, LEGOLAND has paid 100% of their full health care benefits since their furlough resulting in millions of dollars in deficit to the company.
With the continuation of the shutdown and thereafter intermittent reduced operations LEGOLAND has been forced to undertake reorganization efforts and conduct some
layoffs due to the unprecedented business downturn. Employees who have been affected by this reorganization and downsizing held positions across the Resort which included the hotels. Many of these employees were supervisors and managers along
with line level employees. When conducting our careful selection of positions that were either eliminated or where positions were reduced, seniority was a primary factor in deciding between like roles. We attempted to maintain our senior staff to the extent possible. It has been LEGOLAND’s consistent practice to offer generous severance compensation to any full-time employee laid off as a result of this unprecedented crisis. This has been our policy whether the employee held a management or line level position. We submit that those employees accepting the offered severance should be excluded from any recall requirements under any recall ordinance.
Dec. 8, 2020 Item #13 Page 45 of 55
Our resort is also unique in comparison to other hotel resorts in the region as we combine attractions operations with hotels, crossing over many traditional and non-
traditional roles such as lifeguards, entertainers, reception, retail and maintenance staff. Our valet parking/bell and our housekeeping staff work for third party vendors and not directly for LEGOLAND. It is therefor difficult to differentiate “Hotel Only” employees
among the many employees who work multiple locations/positions throughout our various resort operations.
Based on the foregoing and in an attempt to find a workable solution to achieve the Council’s goals together with allowing hotel operators the needed flexibility to operate in these unprecedented times, we propose the following amendments to the proposed Worker Recall ordinance: 1. Clarify the specific jobs/roles that are considered roles held by “Laid Off
Employee.” Given the multiple roles our employees can perform given our unique resort operation, we need more specificity about the ordinance’s scope and application. 2. Shorten Notice Period for Alleged Violations - any employee who feels that the employer has violated the Worker Recall Ordinance should be required to notify their employer within 14 days of when they became aware or should have been aware of the complained of violation. By proposing this modification to the currently proposed ordinance, our goal is to eliminate situations whereby an employee purposely allows a time lapse between the violation and the notification as a means to claiming additional “damage” compensation.
3. Modify Ordinance Expiration Date– the current draft ordinance sets the expiration date as 12 months after the City Council ends the local pandemic state of
emergency. LEGOLAND requests that the expiration date be March 31, 2021 and only be extended if required due to the then current state of emergency.
LEGOLAND acknowledges the Council’s attempts to address the impact the Pandemic has had on businesses and their employees. We believe however that by incorporating our requested amendments to the proposed ordinance, the Council will achieve its stated goal of protecting the people employed by the hotel operators in the City and providing the Hotel operators with a workable construct so that our businesses can survive in this real-time COVID reality. Respectfully,
Kurt Stocks
President & General Manager
LEGOLAND California Resort
Dec. 8, 2020 Item #13 Page 46 of 55
Dec. 8, 2020 Item #13 Page 47 of 55
Dec. 8, 2020 Item #13 Page 48 of 55
November 30, 2020
TO: Office of Innovation and Business Development
FR: Rick Bates, UNITE HERE Local 30
RE: UNITE HERE Local 30 Public Comments to Discussion Draft for Public Input Hotel Employee Recall Rights during Covid-19 Pandemic
The Office of Innovation and Business Development seeks public comments to the Discussion Draft for Public Input Hotel Employee Recall Rights during Covid-19 Pandemic.
UNITE HERE Local 30 supports the passage of an ordinance that would provide recall rights for
hospitality employees who have been laid off because of the COVID-19 pandemic. The SARS-CoV-2 pandemic caused widespread economic dislocation in this city due to interruptions of normal enterprise activity through voluntary and government-ordered cutbacks and closures. Hundreds of workers in Carlsbad were unable to continue in their occupations during this time,
particularly in the hospitality industry. Although many received income from public and private
sources to carry them through this crisis and prevent widespread destitution, these measures have necessarily been only temporary. What matters most for the recovery of workers and their families and for the city’s economy as a whole is that they get back to work as they were before the crisis hit. Carlsbad’s hospitality-industry employers must be required to bring back the same
workers as before the pandemic, as their enterprises resume operation and restore their
workforces as they are able. Requiring hotel employers to simply bring back the same employees who worked for them before is just basic fairness and hotel employers should want their experienced workforce to
return.
For those reasons, UNITE HERE Local 30 appreciates that the City Council is considering
passing an ordinance that provides recall rights to laid off hospitality workers.
Several other cities and counties in California, including the City of San Diego, have passed ordinances providing recall rights. Those cities for the most part can provide a model for
Carlsbad.
Though the draft provided for public comment is a good start, it has some critical deficiencies
that would severely undercut the primary purpose of the ordinance. These deficient provisions
must be either removed or completely re-written. In addition, this draft is lacking a few critical
provisions, which are provided below.
Dec. 8, 2020 Item #13 Page 49 of 55
Issue No. 1: Section 5.70.030 (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.
UNITE HERE Local 30 does not agree with this provision. It would create a new subject of litigation: did the employee engage in conduct sufficient to warrant termination. Questions include: what conduct is considered “dishonesty”? Which employer policies are contemplated by this provision? Which laws are contemplated by this provision? What if the employee denies
they engaged in such conduct? What due process does an employee have to challenge the employer’s determination? If the alleged misconduct occurred many months before, how will either the employer or employee find witnesses who can sufficiently recall the incident? Employers frequently argue against worker-protection legislation on the grounds that it will engender litigation. This provision is guaranteed to do so.
Issue No. 2: Section 5.70.030 (C): A laid-off employee who is offered a position pursuant to this chapter shall be given at least 5 business days to accept or decline the offer. The 5-day acceptance period starts on the later of the date of the mailing of the writing, the sending of the email
message, or the sending of the text message referenced in paragraph (A) of this section. The date from which the employee must respond to an offer to return to work must run from when they receive the offer, not from when it is sent. We think that it is important that workers
have sufficient time to consider the offer being made. For many during the COVID pandemic,
receiving written notification in a timely manner is difficult, especially with recent delays in mail service. Not every worker has access to email or texts. Given that, having sufficient time to receive, consider and respond to a written offer of employment is critical. Five days from the mailing or sending of the message/mail is insufficient for that purpose. Mail can take several
business days to arrive, leaving an eligible worker only a short period of time to consider and
respond to the offer. If the Employer is concerned with some uncertainty about how to determine when the mail or message is received, such concerns are easily addressed. Email and texts can be tracked as to
when they are received and read using simple technology built into those systems. And mail
could be sent certified with a return receipt requested to verify receipt.
Dec. 8, 2020 Item #13 Page 50 of 55
Issue No. 3: Notification Provision. The draft ordinance lacks a key provision requiring the Employer to provide written notice if they are not recalled.
Local 30 proposes the following language be added as a new paragraph under the “Notification of Rights” section of the ordinance:
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.
This proposed language is important so that passed over employees are put on notice that they have been passed over and have sufficient information to understand whether their rights were violated. Such a notice will alleviate much uncertainty for workers who otherwise will have no
way of knowing what their status is. Such uncertainty could lead to a flood of requests to both
the Employer and the City about their status. Issue No. 4: 5.70.060(A) Enforcement.
Before filing the civil action, the laid-off employee must 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.
This proposed amendment would create a new subject of litigation: whether the worker gave
sufficient notice to the employer of the violations. Questions include: what form of written notice
must be provided by the worker? To whom? What if the worker does not know of all of the employer’s violations (and, in fact, discovers some of them in the course of its action against the employer)? Is the worker then unable to proceed on these additional violations because it has not provided notice of them before filing suit?
An employer can always cure a violation of the law, and it will have notice of the claimed violations when the worker enforces his or her rights. The additional 15 days’ notice afforded by this proposed amendment would come at the expense of introducing significant uncertainty into the enforcement procedures.
This provision is especially problematic given the omission of any language requiring written notification by the Employer to an employee who is passed over for recall (see Issue No. 3 above). However, even with the inclusion of that language, the requirement for the employee to provide written notice of “the facts supporting the violation” will make enforcement nearly
impossible for most employees who simply will not have access to specific facts even if they are
aware of a violation. The employee will usually know only that they have not been called back
Dec. 8, 2020 Item #13 Page 51 of 55
to work. All the rest of the facts will be in the employer’s own possession. This phrase will also serve to complicate litigation as every employer who is sued can be expected to include as one of its defenses that the facts given by the employee in the notice were insufficient to support the
violation. Issue No. 5: 5.70.060 (B) Enforcement. 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
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.
UNITE HERE Local 30 agrees with 5.70.060 (B) (1). However, sub-sections (2), (3) and (4)
undercut an employee’s ability to effectively enforce their rights under the ordinance.
As to sub-section (2), an employee should be able to recover compensatory damages, not just
lost pay and benefits.
As to sub-section (3), punitive damages should not be limited if in fact an employee is able to
prove fraud, oppression or malice. Punitive and compensatory damages should be awarded for
reckless disregard of the requirements in the ordinance.
As to sub-section (4), UNITE HERE Local 30 proposes that reasonable attorney fees and costs,
including expert witness fees, are mandated if the plaintiff prevails rather than being in the
court’s discretion.
Finally, a provision must be added that provides treble damages if the Employer retaliates
against any worker for asserting their rights under the ordinance. Such heightened damages
provide the necessary incentive for employers not to take adverse action against a worker merely
asserting their rights.
Dec. 8, 2020 Item #13 Page 52 of 55
Issue No. 6: 5.70.060 (C) Enforcement. 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.
UNITE HERE Local 30 does not agree with the inclusion of this provision. Such language immediately begs the question as to why an action by an employee who lost a job due to violation of the ordinance would be frivolous, unreasonable or groundless in any sense of those words. No employee or lawyer would take the risk of filing an action with such a provision. Essentially, such a provision makes it quite difficult, if not impossible, for an employee to
enforce their rights under this ordinance. And an ordinance without an effective enforcement mechanism becomes merely guidance rather than law. Issue No. 7: 5.70.070 Exemption for collective bargaining agreement.
A collective bargaining agreement in place on the effective date of this chapter that
contains a right of recall provision supersedes the provisions this chapter. When the
collective bargaining agreement expires or its terms are otherwise open for renegotiation
or amendment, 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.
UNITE HERE Local 30 does not agree with the inclusion of a CBA exemption. This ordinance
is meant to provide workers who lost their jobs because of global pandemic the ability to return
to those jobs once they come back. That right should be afforded equally to all hospitality employees whether they are covered by a collective bargaining agreement or not. Any recall provision currently in a collective bargaining agreement was not drafted with such a catastrophe as the COVID-19 pandemic in mind. UNITE HERE Local 30 proposes instead the following
provision:
Relationship to employment contracts and agreements.
This Chapter applies to all employees as defined herein regardless whether they are
represented for purposes of collective bargaining or are covered by a collective
bargaining agreement. Nothing in this Ordinance shall be construed to invalidate or limit
the rights, remedies and procedures of any contract or agreement that provides greater or
equal protection for employees than are afforded by this Ordinance.
This proposal is based on similar language in worker-protection statutes such as the Americans with Disabilities Act and the Family and Medical Leave Act.
Dec. 8, 2020 Item #13 Page 53 of 55
Issue No. 8: 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.
Based on its objections to the collective bargaining agreement exemption discussed under Issue
No. 7, UNITE HERE Local 30 proposes this Section be amended as follows: 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.
Issue No. 9: 5.70.090 Retaliatory action prohibited.
No hotel employer shall discharge, reduce in compensation, or otherwise
discriminate 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.
UNITE HERE Local 30 proposes changing “discriminate” to “takes an adverse action”.
Retaliation is more correctly defined as an adverse employment action rather than “discrimination”. In addition, “discrimination” means treating one employee different than another. Retaliatory acts might easily not fit this description if an employee is in a unique situation and there are no obvious comparators. Issue No. 10: 5.70.100 (B) No limits on other rights or conflicts with federal or
state law.
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.
UNITE HERE Local 30 does not agree with this provision. Instead, UNITE HERE Local 30
proposes the following language:
No Preemption of Higher Standards.
Dec. 8, 2020 Item #13 Page 54 of 55
The purpose of this Chapter is to ensure minimum labor standards. This Chapter does not
preempt or prevent the establishment of superior employment standards (including higher
wages) or the expansion of coverage by ordinance, resolution, contract, or any other
action of the [political subdivision]. This Chapter shall not be construed to limit a
discharged Employee’s right to bring a common law cause of action for wrongful
termination.
Dec. 8, 2020 Item #13 Page 55 of 55
Mia De Marzo
From:
Sent:
To:
Cc:
Alexander Rossitto
Monday, December 7, 2020 9:15 AM
City Clerk
Lynn Mohrfeld
All Receive -Agenda Item ff TI
For the Information of the:
CITY COUNCIL
Date \)..\ cR-i'YcA E CC ___:t?
CM -¥ACM -::f:!-DCM (3) ~
Subject:
Attachments:
CHLA Comment on Agenda Item #13 -HOTEL EMPLOYEE RECALL RIGHTS ORDINANCE
CHLA Letter to Carlsbad City Council.pdf
Dear Carlsbad City Clerk,
Please see the attached comment letter from the California Hotel and Lodging Association on City Council Agenda Item #13.
Best,
A.J. Rossitto
Legislative and Communications Coordinator
CALIFORNIA HOTEL & LODGING ASSOCIATION www.calodging.com
California Association of Boutique & Breakfast Inns www.cabbi.com
January's Virtual Event Line-up
New Year, New Laws Seminar -Jan. 11, 2021
CABBl's lnnSpire Conference & Marketplace -Jan . 26~27, 2021
!CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe.I
1
• Providing a mechanism for employees to correct any hiring mistakes before
litigation can be pursued
• Shortening the expiration date to coincide with the Statewide orders
The hospitality industry in California is facing an unprecedented challenge and daunting
future. Many hoteliers have been forced to let employees go, with the hope that the
hotel will be able to reopen and rehire all of their employees. When hoteliers undergo a
partial reopening or layoffs, seniority often does play a role in who is rehired or kept -
the most senior people are often called back first or kept longest. See also Lego/and,
Letter to Committee, Nov 27, 2020. Unfortunately, this ordinance does far more than
require the rehiring of senior employees and those ancillary effects and enforcement
tools will likely have an outsized impact on the survival of local hotels.
For these reasons, CHLA respectfully opposes the Worker Recall Ordinance and requests
the Council incorporate the concerns of local hotels into any future actions.
Sincerely,
~~
Lynn Mohrfeld
President & CEO
California Hotel & Lodging Association
Tammy Cloud-McMinn
From:
Sent:
To:
Subject:
Hello Carlsbad City Council,
Juan Vargas
Tuesday, December 8, 2020 1 :00 PM
City Clerk
Comment on Hotel Employee Recall Ordinance Item 13
All Receive -Agenda Item# l:3
For the Information of the:
CITY COUNCIL
Date~ CA ...-CC~
CM .........-ACM __!C[)CM (3) £'
My name is Juan Vargas, ist Vice President of California School Employees Association Chapter 219 and Member
of North County Immigration Task Force.
I am writing this email in support of the Hotel Employee Recall Rights Ordinance.
As we all know, Carlsbad is a lighthouse for employment for many community members throughout North
County San.Diego due to its usually vibrant tourism destination.
Many members from various communities have given years of service to Carlsbad, turning the gears of the
tourism machine. Their hard work in turn, has helped sustain .and take care of a big part of the economy in the
city. Now you as elected officials have an opportunity to do the same.
These service workers deserve some security in these insecure times. Our communities of North County need
some security during these insecure times.
Working in a school district, I see first hand the impacts of financial insecurity does to our students and families.
The anxiety and stress of our student's parents radiate to them and creates a domino effect that the students
experience. You have an opportunity to help prevent these problems for many families not only in Carlsbad, but
throughout North County. Especially some of the most vulnerable in our communities, including women, seniors
and people of color.
These folks deserve a plan in place that will secure employment as the pandemic eases and the economy
returns.
You are that light house for many vulnerable service workers. Do not let that dim.
I ask that you give workers a chance and pass the Employee Recall Rights Ordinance.
In Worker Solidarity,
Juan Vargas
i5t VP CSEA Chapter 219
& Member of NCITF
Juan Vargas
1
Hector Gomez
From:
Sent:
To:
Cc:
Subject:
Ana Laura Martinez <ana@cpisandiego.org>
Tuesday, December 8, 2020 4:54 PM
City Clerk
Matthew Hall; Keith Blackburn; Cori Schumacher;
Council Internet Email
Dec 8 Public Comment - Item #13
Priya Bhat-Patel; Teresa Acosta;
All Receive - Agenda Item #
For the Information of the:
CITY COUNCIL
Date 8 CA >5" CC
CM ACM x: DCM (3) 7‹.- Dear City Councilnnennbers of Carlsbad,
The state of California issued an emergency "stay at home" order due to the public health crisis caused by COVID-19, the
Leisure and Hospitality sector in the San Diego-Carlsbad Metropolitan Statistical Aream experienced a job losses of
92,800 over a two month period. It has taken five months to bring almost half of those jobs back (46,200)[21. This signals
that business owners and managers are not bringing workers back on at the rate they dismissed workers. According to
US Census estinnates[3Iaround where workers live by industry, around 5724 Leisure and Hospitality workers live in the
city of Carlsbad, making up approximately 10% of all working residents.
Therefore, it is important for workers in the City of Carlsbad to be protected by an ordinance that gives workers the right
to be recalled once their business sites are reopened, as well as an ordinance that protects workers' ability to be
retained when business ownership is changed. As we see, business owners have been slow to bring workers back to
work during reopening periods, and it is up to our elected officials to protect workers, their families, and their source of
incomes during this public health crisis.
Sources:
[11 Metropolitan Statistical Area (MSA): A geographic entity delineated by the Office of Management and Budget for use by federal
statistical agencies. MSA consist of at least one urbanized area of at least 50,000 population, plus adjacent areas having a high
degree of social and economic integration with the core as measured through commuting ties.
https://www.labormarketinfo.edd.ca.gov/definitions/metropolitan-areas.html
['I Bureau of Labor Statistics: Current Employment Statistics; California Employment Development Department:
http://www.labormarketinfo.edd.ca.gov/
01 US Census, American Community Survey, 2019 1-year estimates, City of Carlsbad, TableID: S2403, Industry: Arts, Entertainment,
and Recreation, and Accommodation and Food Services
Ana Laura Martinez (She/Her/Hers)
Organizer & Leadership Development Coordinator
Center on Policy Initiatives I I Policy Action
3727 Camino Del Rio South, Suite 100
San Diego, CA 92108
0: 619.584.5744 x132
C: 619.219.1795
F: 619.584.5748
Oa@
www.CPISanDiego.org I CPI on Facebook I Follow @CPISD I CPI on Instagram
"We must be motivated by love to undertake change—love of self, love of people, love of life." — Gloria E. Anzaldua
1
Hotel Employee Recall Rights Ordinance
Cindie McMahon
Assistant City Attorney
December 8, 2020
Recommendation
•Introduce and adopt an urgency Hotel
Employee Recall Rights Ordinance; and/or
•Introduce a Hotel Employee Recall Rights
Ordinance
2
Background
•Hotel employees have been particularly
affected by the COVID-19 pandemic
–Tourism sector = 37% of the jobs lost and
30% of wages lost in San Diego County
–Hospitality = 33% of the jobs lost in Route
78 corridor; down 37% from last year
3
Background
•Further severe impacts expected
–Regional Stay At Home Order
•No gathering; no indoor/outdoor dining
•No out-of-state reservations for non-essential travel unless
–Planned stay at least as long as quarantine period
–Travelers will quarantine in hotel for that period
4
Background
•Unemployment levels of employees with recall rights improve when economy improves
•Unemployment levels of employees without
recall rights tend to persist
•Recalling laid-off employees hastens post-shutdown recovery
5
City Council Direction
•City Council directed City Attorney’s Office to prepare an urgency hotel employee recall rights ordinance
–Tailored to Carlsbad
–Protective of employee seniority
–Avoids litigation pitfalls of San Diego
Ordinance
6
Ad Hoc Economic Revitalization
Subcommittee
•City Council requested Subcommittee conduct public outreach
•Subcommittee released a draft ordinance for public comment
–Developed from sample ordinances/ legislation
–Considered prior public comment and San Diego lawsuit
7
Ad Hoc Economic Revitalization
Subcommittee
•Four commenters, including hoteliers and a
hotel employees union (Ex. 5)
•Subcommittee reviewed comments and
revised the draft ordinance
•Reached a consensus recommendation on
all but one point
8
Ordinance
•Applies to hotels with 200+ guest rooms
•Requires recall of employees laid off for pandemic-related reasons to:
–Same/similar position; or
–Position for which qualified with the same training provided to new employees
•Acceptance period = 3 days from offer receipt/10 days from offer mailing
9
Ordinance
•Requires employers to notify employees of
ordinance rights
•Requires employers to keep certain records
necessary to confirm ordinance compliance
•Prohibits employers from retaliating against
employees for exercising ordinance rights
10
Enforcement and Remedies
•Enforceable by a private civil lawsuit after giving employer notice and an opportunity to cure
•Remedies: reinstatement, actual damages,
attorneys fees and costs, and punitive
damages in appropriate cases
•No criminal penalties
11
Expiration and Reporting
•Ordinance expires 12 months after
enactment
•City Manager to report back to City Council
on ordinance’s effectiveness 2 months
before expiration to determine whether
further action required
12
Exclusions/Exemptions
•Does not apply to employees with severance agreements
•Does not apply to employees found to have
committed dischargeable misconduct
•Decision point: Should it apply to employees covered by existing CBA with recall rights provision?
13
CBA Exemption
•Option 1 (Ex. 1 & 2):
–Exempt employees covered by a CBA with recall rights
•Avoids claim ordinance unconstitutionally impairs contract rights
•Avoids claim ordinance is preempted by NLRA
14
CBA Exemption
•Option 2 (Ex. 3 & 4):
–Apply to employees covered by CBA with
recall rights
•Allows employees to benefit from whichever
provides greater protection/remedies
•May draw legal challenge
15
Recommendation
•Introduce and adopt an urgency Hotel
Employee Recall Rights Ordinance (4/5
vote); and/or
•Introduce a Hotel Employee Recall Rights
Ordinance (majority vote)
16
Hotel Employee Recall Rights Ordinance
Cindie McMahon
Assistant City Attorney
December 8, 2020
Council Member Schumacher
Proposed Revision to 5.70.070
5.70.070 Exemption for collective bargaining agreement.
A collective bargaining agreement in place on the effective date of this chapter that contains a right of recall provision supersedes the provisions of this chapter. When the collective bargaining agreement expires or its terms are otherwise open for renegotiation or amendment, tThe 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.
18
5.70.070 –CBA Exempt Version
5.70.070 Exemption for collective bargaining agreement.
A collective bargaining agreement in place on the effective date of this chapter that contains a right of recall provision supersedes the provisions of this chapter. When the collective bargaining agreement expires or its terms are otherwise open for renegotiation or amendment, 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.
19
5.70.080 –CBA Exempt Version
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.
20
5.70.070 –CBA Not Exempt Version
5.70.070 Relationship to employment contracts and
agreements.
This chapter applies to all employees whether they are represented for purposes of collective bargaining or are covered by a collective bargaining agreement. Nothing in this chapter shall be construed to invalidate or limit the rights, remedies and procedures of any contract or agreement that provides greater or equal protection for employees than are afforded by this chapter.
21
5.70.080 –CBA Not Exempt Version
5.70.080 No waiver of rights.
A waiver by an employee of any provisions of this chapter is contrary to public policy and is void and unenforceable. Any request by an
employer to an employee to waive rights
provided by this chapter is a violation of this chapter.
22