On April 29, 2020, the Mayor of Los Angeles, Eric Garcetti, signed into law two COVID-19-driven workforce ordinances: the Right of Recall Ordinance and the Worker Retention Ordinance.
The ordinances cover “Airport,” “Commercial Property,” “Event Center,” and “Hotel” employers, including:
- Owners, operators, or managers of (i) Event Centers (g., concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers), (ii) Hotels with 50+ rooms or gross revenues exceeding $5 million in 2019, and (iii) any restaurant physically located on the premises of said covered Hotel.
- Any employer that provides any service at any Airport it operates in the City or provides any service to any employer servicing these airports. This ordinance does not apply to airlines.
- Owners, operators, managers, or lessees, including contractors, subcontractors, or sublessees, of a non-residential Commercial Property in the City that employs 25 or more janitorial, maintenance, or security service workers.
Right to Recall Ordinance
Covered employers must make an offer of employment to non-managerial workers laid off on or after March 4, 2020, due to COVID-19, for any position that becomes available for which the worker either (1) is qualified, or (2) can be trained. This ordinance creates a rebuttable presumption that any termination occurring on or after March 4, 2020, was due to COVID-19. To overcome this presumption, the employer must prove the termination was for cause (e.g., due to poor performance).
If more than one laid-off worker is eligible for a given position, the job must go to the laid-off worker with the greatest seniority. The eligible laid-off worker will have five days to accept the employment opportunity.
A laid-off worker may bring an individual cause of action in Superior Court for violations of this ordinance, and may be awarded hiring and reinstatement rights, actual damages, attorneys’ fees and costs, and punitive damages. This ordinance will be effective until at least March 1, 2022.
Citywide Worker Retention Ordinance
The Citywide Worker Retention Ordinance requires that covered employers provide seniority preferences to workers after a change in business ownership or control occurs within two years following the declaration of emergency resulting from the COVID-19 pandemic. “Workers” include non-managerial employees who had worked for at least six months for the incumbent business employer, on or after March 1, 2020, and prior to the change in ownership.
Successor business employers are required to hire the incumbent businesses’ workers, by seniority, for a period of six months after the successor business is open to the public. Further, the successor business employer must keep each rehired workers for at least 90 days, after which, the employer must conduct a written evaluation of each worker in consideration for a permanent position.
If a worker brings an action under this ordinance against either the incumbent or successor business employer, the worker may be awarded hiring and reinstatement rights, back and front pay for each day the violation continues, and the value of the benefits the worker would have received under the successor business employer’s benefits plan.
These ordinances are certain to drive extensive litigation given the numerous burdens now placed on these employers trying to get back on their feet in Los Angeles. Covered employers should pay especially close attention to (1) the rebuttable presumption that any lay-off on or after March 4, 2020 is covered, and (2) the requirement that incumbent businesses must retain recalled workers for 90 days, despite California being an at-will state.