Long Beach Municipal Code Ch. 5.55 Covid-19 Citywide Worker Recall

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 already 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 promise of a return to their previous jobs as the pandemic begins to recede and business activity resumes. 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 laid-off due to the COVID-19 pandemic.

(ORD-22-0010 § 1, 2022; ORD-20-0015 § 1, 2020)

The following definitions shall apply to this Chapter:

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

B. "Commercial Property Employer" means an owner, operator, manager or lessee, including a contractor, subcontractor, or sublessee, of a non-residential property in the City that provides janitorial services and employs twenty-five (25) or more employees.

C. "Employer" means a Commercial Property Employer or Hotel Employer.

D. "Hotel" has the same meaning as in Section 9.02.080 of the Long Beach Municipal Code.

E. "Hotel Employer" means any person who owns, controls, or operates a hotel in the City and employs twenty-five (25) or more employees who provide services at a hotel in conjunction with the hotel's purpose. A "Hotel Employer" includes any contracted, leased or sublet premises connected to or operated in conjunction with the building's purpose, or providing services at the building.

F. "Laid-off Employee" means a Hotel or Commercial Property employee who, in a particular week, performed at least two (2) hours of work within the geographical boundaries of the City for an Employer, had a Length of Service with the Employer of six (6) months or more, and whose most recent separation from active employment occurred on or after March 4, 2020, as a result of a lack of business, a reduction in work force, bankruptcy, or other economic, non-disciplinary reason. This Section creates a rebuttable presumption that any termination occurring on or after March 4, 2020, was due to a non-disciplinary reason. For purposes of this Chapter, a Laid-off Employee does not include any person employed as a manager, supervisor, or confidential employee.

G. "Length of Service" means the total of all periods of time during which a Laid-off Employee has been in active service, including periods of time when the Laid-off Employee was on leave or on vacation.

(ORD-22-0010 § 1, 2022; ORD-20-0015 § 1, 2020)

A. Priority for Laid-off Employees. An Employer shall offer its Laid-off Employees in writing, to their last known mailing address, electronic mail and text message to the extent the Employer possesses such information, all job positions which become available after the effective date of this Chapter for which the Laid-off Employee is qualified. A Laid-off Employee is qualified for a position if the Laid-off Employee:

1. 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

2. is or can be qualified for the position with the same training that would be provided to a new employee hired into that position.

The Employer shall offer positions to Laid-off Employees in an order of preference corresponding to categories (1) and (2) above. Where more than one (1) Laid-off Employee is entitled to preference for a position, the Employer shall offer the position to the Laid-off Employee with the greatest Length of Service with the Employer.

B. Time Limit. A Laid-off Employee who is offered a position pursuant to this Chapter shall be given no less than five (5) business days in which to accept or decline the offer of re-employment. A "business day" is any day except Saturday, Sunday or official state holidays.

(ORD-22-0010 § 1, 2022; ORD-20-0015 § 1, 2020)

A Laid-off Employee may bring a private right of action in the Superior Court of the State of California against an Employer for violations of this Chapter and may be awarded:

A. Hiring and reinstatement rights pursuant to this Chapter.

B. All actual damages (including, but not limited to, lost pay and benefits) suffered by the Laid-off Employee and for statutory damages in the sum of one thousand dollars ($1,000), whichever is greater.

C. Punitive damages, pursuant to California Civil Code Section 3294.

D. Reasonable attorney's fees and costs, as determined by the court, if the Laid-off Employee is the prevailing party in the action; or

E. To an Employer who prevails and obtains a court determination that the worker's lawsuit was frivolous.

F. A civil action by a Laid-off Employee alleging a violation of any provision of this Chapter shall commence only after the following requirements have been met:

1. The Laid-off Employee provides written notice to the Employer of the provisions of this Chapter alleged to have been violated and the facts to support the alleged violation; and

2. The Employer is provided fifteen (15) days from receipt of the written notice to cure any alleged violation.

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

(ORD-22-0010 § 1, 2022; ORD-20-0015 § 1, 2020)

No employer shall terminate, reduce in compensation, or otherwise discriminate against any worker for seeking to enforce their rights under this Chapter by any lawful means, for participating in proceedings related to this Chapter, for opposing any practice proscribed by this Chapter, or for otherwise asserting rights under this Chapter.

(ORD-22-0010 § 1, 2022; ORD-20-0015 § 1, 2020)

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

(ORD-22-0010 § 1, 2022; ORD-20-0015 § 1, 2020)

Except for a collective bargaining agreement provision made pursuant to Section 5.55.060, 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 constitute a violation of this Chapter.

(ORD-22-0010 § 1, 2022; ORD-20-0015 § 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-22-0010 § 1, 2022; ORD-20-0015 § 1, 2020)

Editor's note— ORD-22-0010 § 2, adopted Mar. 8, 2022, repealed § 5.55.090 entitled "City Manager report," which derived from ORD-20-0015 § 1, 2020.