Long Beach Municipal Code Ch. 5.53 Covid-19 Citywide Worker Retention

As a result of the COVID-19 pandemic, many workers in the City of Long Beach are facing significant job and economic insecurity. The COVID-19 pandemic has caused hospitality and janitorial service employers in the City to discharge, layoff and furlough workers at a massive scale. Many hotel and janitorial service workers have been separated from their jobs as a result of the pandemic, and thousands more are still experiencing economic hardship. This has caused a sense of uncertainty with these workers. While federal, state and local programs, and efforts by certain non-profits, have provided some support to hotel and janitorial service workers in the short-term, what these workers need most is the continuing opportunity of retaining their jobs during business transfers of ownership. To ensure fair employment practices, provide some security during times of economic upheaval and protect against dangers posed by future pandemics, including future COVID-19 variants and surges, the City hereby enacts legal protections for workers when a business changes ownership.

(ORD-22-0009 § 1, 2022; ORD-20-0016 § 1, 2020)

The following definitions shall apply to this Chapter:

A. "Business" means a Hotel or Commercial Property Business.

B. "Change in Control" means any sale, assignment, transfer, bankruptcy, contribution, or other disposition of all or substantially all of the assets used in the operation of a Business, or a discrete portion of a Business that continues to operate as the same type of Business of the Incumbent Business Employer, or any Person who controls the Incumbent Business Employer.

C. "City" means the City of Long Beach.

D. "Commercial Property Business" means non-residential property in the City that provides janitorial services and employs twenty-five (25) or more employees.

E. "Employment Commencement Date" means the date on which a Worker retained by a Successor Business Employer pursuant to this Ordinance commences work for the Successor Business Employer in exchange for compensation under terms and conditions established by the Successor Business Employer or as required by law.

F. "Hotel" has the same meaning as in Section 9.02.080 of the Long Beach Municipal Code. This Chapter only applies to hotels with twenty-five (25) or more employees who provide services in conjunction with the hotel's purpose.

G. "Incumbent Business Employer" means the Person who owns, controls, subcontracts or operates a Hotel or Commercial Property Business prior to the Change in Control.

H. "Length of Service" means the total of all periods of time during which a Worker has been in active service, including periods of time when the Worker was on leave or vacation.

I. "Person" means an individual, corporation, partnership, limited partnership, limited liability company, business trust, estate, trust, association joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign.

J. "Successor Business Employer" means the Person who owns controls, and/or operates a Business after a Change in Control.

K. "Transfer Document" means the purchase agreement or other documents creating a binding arrangement to effect the Change in Control.

L. "Worker" means an individual employed by the Incumbent Business Employer who performs work at a Hotel or Commercial Property Business and: (1) who has a Length of Service with the Incumbent Business Employer for six (6) months or more; (2) whose primary place of employment is a Business subject to a Change in Control; (3) 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 (4) who worked for the Incumbent Business Employer on or after March 4, 2020, and prior to the execution of the Transfer Document. "Worker" does not include a person employed as a manager, supervisor, or confidential employee.

(ORD-22-0009 § 1, 2022; ORD-20-0016 § 1, 2020)

A. Business Employer's Responsibilities.

1. The Incumbent Business Employer shall, within fifteen (15) days after execution of a Transfer Document, provide to the Successor Business Employer the name, address, date of hire, and occupation classification of each Worker.

2. The Successor Business Employer shall maintain a preferential hiring list of Workers identified by the Incumbent Business Employer as set forth in Subsection A.1 of this Section, and shall be required to hire from that list for a period beginning upon the execution of the Transfer Document and continuing for six (6) months after the Business is open to the public under the operation of the Successor Business Employer.

3. If the Successor Business Employer extends an offer of employment to a Worker, the Success Business Employer shall retain written verification of that offer for no fewer than three (3) years from the date the offer was made. The verification shall include the name, address, date of hire, and occupation classification of each Worker.

B. Transition employment period.

1. A Successor Business Employer shall retain each Worker hired pursuant to this Chapter for no fewer than ninety (90) days following the Worker's Employment Commencement Date. During the ninety (90)-day transition employment period, a Worker shall be employed under reasonable terms and conditions of employment or as required by law. The Successor Business Employer shall provide a Worker with a written offer of employment. This offer shall remain open for at least five (5) business days from the date of the offer.

2. If, within the period established by Section A.2, the Successor Business Employer determines that it requires fewer Workers than were required by the Incumbent Business Employer, the Successor Business Employer shall offer the position to the Worker in the same occupational classification with the greatest Length of Service with the Incumbent Business Employer.

3. During the ninety (90)-day transition employment period, the Successor Business Employer shall not discharge without cause a Worker retained pursuant to this Chapter.

4. At the end of the ninety (90)-day transition employment period, the Successor Business Employer shall perform a written performance evaluation for each Worker retained pursuant to this Ordinance. If the Worker's performance during the ninety (90)-day transition employment period is satisfactory, the Successor Business Employer shall consider offering the Worker continued employment under the terms and conditions established by the Successor Business Employer or as required by law. The Successor Business Employer shall retain a record of the written performance evaluation period of no fewer than three years.

C. Notice of change in control.

1. The Incumbent Business Employer shall post written notice of the Change in Control at the location of the affected Business within five (5) business days following the execution of the Transfer Document. Notice shall remain posted during any closure of the Business and for six (6) months after the Business is open to the public under the Successor Business Employer.

2. Notice shall include, but not be limited to, the name of the Incumbent Business Employer and its contact information, the name of the Successor Business Employer and its contact information, and the effective date of the Change in Control.

3. Notice shall be posted in a conspicuous place at the Business so as to be readily viewed by Workers, other employees, and applicants for employment.

(ORD-22-0009 § 1, 2022; ORD-20-0016 § 1, 2020)

A. A Worker may bring a private right of action in the Superior Court of the State of California against an Incumbent Business Employer or the Successor Business Employer for violations of this Chapter and may be awarded:

1. Hiring and reinstatement rights pursuant to this Chapter. For a Worker, the ninety (90)-day transition employment period begins on the Worker's Employment Commencement Date with the Successor Business Employer.

2. Front or back pay for each day the violation continues, which shall be calculated at a rate of compensation not less than the higher of:

a. The average regular rate of pay received by the Worker during the last three (3) years of the Worker's employment in the same occupation classification; or

b. The most recent regular rate of pay received by the Worker while employed by either the Business, Incumbent Business Employer, or the Successor Business Employer.

3. Value of the benefits the Worker would have received under the Successor Business Employer's benefits plan.

B. A civil action brought by a Worker alleging a violation of any provision of this Chapter shall commence only after the following requirements have been met:

1. The Worker provides written notice to the Incumbent Business Employer and/or the Successor Business Employer of the provisions of this Chapter alleged to have been violated and the facts supporting the alleged violation; and

2. The Incumbent Business Employer and/or the Successor Business Employer is provided fifteen (15) days from receipt of the written notice to cure any alleged violation.

C. The Court shall award reasonable attorneys' fees and costs to a Worker who prevails in any such enforcement action or to a Business Employer who prevails and obtains a court determination that the Worker's lawsuit was frivolous.

D. Notwithstanding any provision of this Code, or any other ordinance to the contrary, no criminal penalties shall attach for violation of this Chapter.

(ORD-22-0009 § 1, 2022; ORD-20-0016 § 1, 2020)

No Incumbent or Successor Business Employer employing a Worker shall discharge, reduce in compensation, or otherwise discriminate against any Worker for opposing any practice proscribed by this Chapter, for participating in proceedings related to this Chapter, for seeking to exercise their rights under this Chapter by any lawful means, or for otherwise asserting rights under this Chapter.

(ORD-22-0009 § 1, 2022; ORD-20-0016 § 1, 2020)

All of the provisions of this Chapter, or any part thereof, may be expressly waived in a collective bargaining agreement, but only if the waiver is explicitly set forth in the agreement 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 waiver of all or any of the provisions of this Chapter.

(ORD-22-0009 § 1, 2022; ORD-20-0016 § 1, 2020)

Except for a collective bargaining agreement provision made pursuant to Section 5.543.060, any waiver by a Worker of any or all provisions of this Chapter shall be deemed contrary to public policy and shall be void and unenforceable. Other than in connection with the bona fide negotiation of a collective bargaining agreement, any request by an Employer to a Worker to waive rights given by this Chapter shall be a violation of this Chapter.

(ORD-22-0009 § 1, 2022; ORD-20-0016 § 1, 2020)

If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance and each and every section, subsection, sentence, clause and phrase thereof not declared invalid or unconstitutional, without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional.

(ORD-22-0009 § 1, 2022; ORD-20-0016 § 1, 2020)

Editor's note— ORD-22-0009 § 2, adopted Mar. 8, 2022, repealed § 5.53.090 entitled "City Manager report," which derived from ORD-20-0016 § 1, 2020.