On May 19, 2020, the Long Beach City Council, following the lead of Los Angeles City and Los Angeles County, adopted worker retention and worker recall ordinances. The COVID-19 Worker Retention Ordinance and the COVID-19 Worker Recall Ordinance are both aimed at providing legal protections to workers during the economic upheaval resulting from the COVID-19 pandemic and become effective on June 22, 2020.
Like the Los Angeles ordinances, the Long Beach ordinances only cover certain industry-specific employers:
- Commercial property employers located in the City of Long Beach that provide janitorial services and employ at least 25 employees; and
- Hotel employers (as defined by the Municipal Code section 9.02.080) whose hotel is located in the City of Long Beach and employs at least 25 employees who provide services at the hotel or related to the hotel’s purpose.
Worker Retention Ordinance
When an “incumbent business employer” sells or transfers its business to a “successor business employer,” each party to the transaction has certain duties. Upon the sale or transfer of the business (“change in control”), the incumbent (old) business must post a notice in the workplace within five days of the transfer. The old business must also provide a preferential hiring list of workers to the successor (new) business.
A “worker” is an individual employed by an incumbent business employer who performs work at a hotel or commercial property business and:
- Who has a length of service with the incumbent business employer for six months or more;
- Whose primary place of employment is a business subject to the change in control;
- Who is employed or contracted to perform work functions directly by the incumbent business employer, or by a person who has contracted with the incumbent business employer to provide services at the business subject to the change in control; and
- Who worked for the incumbent business employer on or after March 4, 2020, and prior to the execution of the transfer document (e.g., purchase agreement).
A worker does not include a person employed as a manager, supervisor or confidential employee.
The preferential hiring list of workers that an incumbent business employer must provide is required to include the name, address, date of hire and occupation classification of each worker, and must be sent to the successor business employer within 15 days after the sale/transfer.
The successor business employer must then maintain and hire from that list, beginning on the date of sale/transfer and continuing for six months after the new business is open to the public. Workers should be given no less than five business days (excluding Saturday, Sunday or official state holidays) to consider an offer, and written verification of employment offers should be kept for no fewer than three years from the date the offer was made.
The successor business employer must keep each worker for no fewer than 90 days following the worker’s start date, during which time a worker can’t be fired without cause. At the end of the 90-day period, a written performance evaluation must be performed, and continued employment must be considered. A copy of the written performance evaluation must also be kept for at least three years
Right of Recall Ordinance
The Right of Recall Ordinance requires that covered employers give priority to laid-off employees, who have five business days to accept or deny an employment offer.
A “laid-off employee” means a commercial property or hotel employee who:
- Performs at least two hours of work within the geographic boundaries of the city in a particular week;
- Has worked for the covered employer for six months or more, including periods of time when the worker was on leave or vacation; and
- Was separated on or after March 4, 2020, because of a lack of business, a reduction in work force, bankruptcy or other economic, non-disciplinary reason. (The ordinance creates a rebuttable presumption that any termination occurring on or after March 4, 2020, was due to a non-disciplinary reason.
A laid-off employee doesn’t include managers, supervisors or confidential employees.
A covered employer must make a written offer to a laid-off employee, sent to the worker’s last known mailing address, email address and phone number (text message), of any position which becomes available after the ordinance’s effective date of June 22, 2020, for which the employee is qualified. A laid-off worker is considered qualified and must be offered the position in the order of priority below — if the laid off worker:
- Held the same or similar position at the site of employment at the time of the laid-off employee’s most recent separation from active service with the employer; or
- Is or can be qualified for the position with the same training that would be provided to a new employee hired in that position.
If more than one laid-off employee is entitled to preference for a position, the employer should offer the position to whichever employee has the greatest length of service with the employer.
Collective Bargaining Agreement Exemption
Both ordinances allow for their provisions to be expressly waived by a bona fide collective bargaining agreement, but only if the waiver is explicitly set forth in the agreement in clear and unambiguous terms.
Retaliation Prohibited
Employers cannot terminate, reduce pay or otherwise discriminate against any worker for exercising their rights under the ordinances or opposing any practice prohibited by the ordinances.
Enforcement
An employee can bring a private right of action in state court for violations. Like the Los Angeles ordinances, an employer must first be given notice of the alleged violation and 15 days to cure such violations. Potential relief may include without limitation: hiring and reinstatement rights, lost pay and benefits, statutory damages, and reasonable attorney’s fees and costs.
Currently, these ordinances have no official end date. However, the City Manager is required to report back to the City Council every 90 days on the ordinances’ effectiveness in protecting workers’ stability of employment and whether the ordinances are still necessary based on the city’s recovery from the impacts of the COVID-19 pandemic.
Bianca Saad, Employment Law Subject Matter Expert, CalChamber
Visit the CalChamber Coronavirus (COVID-19) webpage for more COVID-19-related federal, state and local resources, including California Counties Health and Stay-at-Home Order pages.
Access additional COVID-19-related HRWatchdog blogs.
