Seyfarth Synopsis: On April 29, 2020, the City of Los Angeles approved amended versions of right-of-recall and worker retention ordinances, which require certain employers to give priority in hiring to previously laid-off workers. The Mayor has signed these ordinances, and they go into effect June 14, 2020.
City of LA Right-of-Recall and Worker Retention Ordinances Effective June 14, 2020
As we previously reported, on April 29, 2020, the City Council approved revised versions of the Worker Retention Ordinance (Article 4-72J-B) and the Right-of-Recall Ordinance (Article 4-72J-A), and submitted them to the Mayor.
On May 4, 2020, the City posted the final versions of both ordinances, which have now been signed by Mayor Eric Garcetti. The effective date is June 14, 2020. The ordinances are summarized below.
COVID-19 Right of Recall
Summary of Rule. The ordinance applies to employers in specific defined sectors: airport businesses, commercial property businesses, event center businesses, and hotel businesses. It requires these employers to offer, in writing, any new positions that become available to certain “Laid Off Workers.” “Laid Off Workers” are those (1) with six months or more of service with the employer (including vacation/leave time), and (2) who were discharged on or after March 4, 2020, because of lack of business, reduction of workforce, or other economic, non-disciplinary reasons.
Significantly, the ordinance creates a presumption that any worker discharged on or after March 4, 2020 was discharged for a non-disciplinary reason.
Offers must go out to every such worker who is “qualified” for the open position. “Qualified” means the worker (1) held the same or similar position at the same location when they were separated, or (2) is or can be qualified for the position with the same training that would be provided to a new worker. If more than one Laid Off Worker is qualified, priority goes to the worker with longer service in a similar position at the site. Workers have five business days to accept or reject the offer.
Exceptions. The ordinance expressly does not apply to employees who act as managers, supervisors, or confidential employees, or persons whose primary job is “sponsorship sales for an Event Center Employer.” The requirements also can be waived in a collective bargaining agreement, but only if negotiated by both sides, explicit, and in clear and unambiguous terms.
Consequences for Failure to Comply. After providing the employer with notice and giving the employer 15 days to cure an alleged violation, a Laid Off Worker can sue for reinstatement, back pay (or $1,000, whichever is more), punitive damages, and reasonable attorneys’ fees and costs.
COVID-19 Citywide Worker Retention Ordinance
Summary of Rule. This ordinance also only applies to employers in specific defined sectors: airport businesses, commercial property businesses, event center businesses, and hotel businesses. When selling or transferring one of these businesses, the “Incumbent Business” (e.g., the seller) must provide the “Successor Business” (e.g., the buyer) with a list of its workers so that the Successor can give them priority in hiring. For the first six months after the Successor re-opens to the public, it must offer any new positions available at that location by first making written offers to workers on this list.
In addition, for the first 90 days after a Successor hires workers from the list, the Successor cannot discharge these workers without cause. At the end of the 90 days, the Successor must issue a written performance evaluation for each of these workers. For workers with “satisfactory” performance, the Successor must “consider” offering them continued employment.
If, within six months of re-opening, the Successor decides it requires fewer workers than the Incumbent, it must give priority to workers in the same occupational classification with the greatest Length of Service with the Incumbent.
Exceptions. As with the Right of Recall Ordinance, managerial, supervisory, and confidential employees are excluded. The requirements also can be waived in a collective bargaining agreement, but only if negotiated by both sides, explicit, and in clear and unambiguous terms.
Consequences for Failure to Comply. After providing notice of an alleged violation and giving the employer 15 days to cure it, a worker can file a lawsuit and obtain reinstatement, front or back pay, lost benefits, and reasonable attorneys’ fees and costs if the worker prevails.
Notice and Records Requirements. The ordinance requires the Incumbent to post notice at the business about the transfer and the Successor to keep it up for six months after reopening. Records of the performance evaluations and offers required by the ordinance must be kept for three years.
Both ordinances prohibit retaliation against workers in connection with their new rights under the ordinances.
