On September 8, 2020, San Diego’s City Council passed three emergency ordinances to protect workers impacted by COVID-19. The recall and retention ordinances require commercial property, hotel and event center employers to take steps to rehire workers when they reopen after closing due to COVID-19 and retain employees when company ownership changes. With an urgency provision, these ordinances went into effect immediately upon passage.
The Council also passed an emergency paid sick leave ordinance, which covers businesses with 500 or more employees who aren’t covered under the Families First Coronavirus Response Act (FFCRA). The ordinance was passed as a “stop-gap” measure in case Governor Newsom didn’t sign AB 1867, an urgency bill requiring supplemental paid sick leave. According to the council’s discussion, if the Governor signed AB 1867, it would eliminate the need for a second vote/formal adoption of this ordinance since the ordinance would be moot. The Governor signed AB 1867 on September 9, 2020.
COVID-19 Worker Recall Ordinance
Covered Employers/Employees: The worker recall ordinance generally covers event center employers of a certain size (50,000 square feet or 5,000 seats used for public performances), hotel employers whose hotel is located in the city of San Diego and has at least 100 guest rooms, and commercial property employers located in the city of San Diego and employing 10 or more janitorial, maintenance or security service employees. Each category of employer is more specifically defined under the ordinance.
The ordinance provides protections to a “laid-off employee,” defined as any individual who:
- Performs at least two hours of work within the city of San Diego in a particular week;
- Has a length of service with the employer of six months or more (three months or more in the 12 months preceding March 4, 2020);
- Whose most recent separation from active service, or failure to be scheduled for customary seasonal work, occurred on or after March 4, 2020, and before the termination of the statewide Declaration of Emergency proclaimed by the Governor on March 4, 2020; and
- Whose separation was due to a government shutdown order, lack of business, a reduction in force or other economic, non-disciplinary reason.
Managers, supervisors and confidential employees are excluded from the definition of a laid-off employee.
Right of Recall: When a covered employer is reopening, it must offer its laid-off employees all job positions that become available after September 8, 2020, for which the laid-off employees are qualified. The offer must be conveyed in writing, by mail, email and text message to the extent the employer has such information. Employees with the greatest length of service must be given priority. A laid-off employee will have 10 business days to accept or decline the offer.
If an employer chooses not to recall a laid-off employee on grounds that the employee lacks qualifications, the employer must provide the laid-off employee a written notice of non-selection documenting the reasons for such decision, within 30 days of the date of hire. Records must be retained for no less than three years and be made available to the City or laid-off employee upon request.
Notice of Layoff: Under the ordinance, employers must also provide each laid-off employee with a written notice of the date of their layoff and their rights under the ordinance. For layoffs that occurred prior to the date the ordinance took effect (September 8, 2020), the notice must be given within 30 days of September 8, 2020. For any layoff occurring after September 8, 2020, the notice must be given at the time of layoff. The notice must be provided in person or to the laid-off employee’s last known mailing address as well as by email to the extent the employer has such information.
Record Retention: Employers must maintain records of certain information regarding each laid-off employee for at least three years (measured from the date of the layoff notice), which includes the employee’s:
- Full legal name;
- Job classification at the time of employment separation;
- Hire date;
- Last known home address;
- Last known email address;
- Last known telephone number; and
- A copy of the written notice regarding layoff that was provided to the employee.
Retaliation Prohibited: An employer may not terminate, refuse to employ, reduce in compensation or otherwise take any adverse action against any laid-off employee for seeking to enforce their rights under the ordinance.
Enforcement: A laid-off employee may bring a civil action in state court against an employer for violations of the ordinance. Remedies may include hiring and reinstatement rights, actual or statutory damages, punitive damages, and, if a prevailing party, reasonable attorneys’ fees and costs.
Expiration: The ordinance will remain effective for six months from the date of adoption and on that date will be repealed unless the City Council enacts an ordinance rescinding or extending the date.
COVID-19 Worker Retention Ordinance
Covered Employers/Employees: The worker retention ordinance puts protections in place for employees of an “incumbent” (former) employer/business that is sold/transferred to a “successor” (new) employer business. The ordinance applies to any employer/business that is a commercial property business located in the city of San Diego and employs 10 or more janitorial, maintenance or security service employees, or any hotel business located in the city of San Diego with at least 100 guest rooms (and as further defined by the ordinance).
An “eligible employee” is any individual employed by the incumbent business employer:
- Who has a length of service with the incumbent business employer of six months or more;
- Whose primary place of employment is a business subject to a 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).
An eligible employee doesn’t include a manager, supervisory or confidential employee.
Within 15 days after execution of the sale/transfer, the incumbent business employer must provide the name, address, date of hire and job classification of each eligible employee to the successor business employer. The successor business employer must maintain that preferential hiring list of eligible employees and is required to hire from that list beginning upon execution of the transfer document and continuing for six months after the business is open to the public.
If the successor business employer extends an offer of employment to an eligible employee, it must retain written verification of that offer for at least three years from the date the offer was made.
The successor business employer must also keep each worker for no fewer than 90 days following the eligible employee’s start date, and during that time, the employee may not 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.
Retaliation Prohibited: No incumbent or successor business employer may refuse to employ, terminate, reduce in compensation or otherwise take any adverse action against any eligible employee for seeking to enforce their rights under the ordinance.
Enforcement: An eligible employee may bring a civil action in state court against an incumbent or successor business employer for violations of the ordinance. Remedies may include hiring and reinstatement rights, front or back pay for each day the violation continues, value of the benefits the eligible employee would have received under the successor business employer’s benefit plans, and, if a prevailing party, reasonable attorneys’ fees and costs.
Expiration: The ordinance will remain effective for six months from the date of adoption and on that date will be repealed; however, if Governor Newsom signs AB 3216 , the ordinance will be repealed on January 1, 2021, unless the City Council enacts an ordinance extending that date.