Chapter 5.80 — COVID-19 RIGHT OF RECALL

As a result of the COVID-19 pandemic and "Safer at Home" orders by California Governor Gavin Newsom and the city's health officer, issued to protect the public health and welfare, many workers in the City of Pasadena are facing significant job and economic insecurity. Workers in the hospitality industry are especially impacted by lay-offs as a result of the pandemic because travel has been severely halted and businesses in the industry cannot easily adjust to the lack of patronage during the crisis. To ensure fair employment practices during the economic upheaval resulting from the pandemic and to reduce the demand for government-funded social services, the city hereby enacts legal protections for laid off workers.

(Ord. No. 7365, § 2, 7-27-2020)

For purposes of this chapter, the following definitions shall apply:

A.

"City" means the City of Pasadena.

B.

"Employer" means an owner, operator or manager of a residential building in the city designated or used for public lodging or other related service for the public and either contains 50 or more guestrooms or has earned gross receipts in 2019 exceeding $5 million. An employer includes the owner, operator, manager or lessee of any restaurant physically located on hotel premises.

C.

"Laid off worker" means any person who, in a particular week, performs at least two hours of work within the geographical boundaries of the city for an employer, has a length of service with the employer of six months or more, and whose most recent separation from active employment by the employer occurred on or after March 4, 2020, as a result of a lack of business, a reduction in work force or other economic, non-disciplinary reason. This ordinance creates a rebuttable presumption that any termination occurring on or after March 4, 2020, was due to a non-disciplinary reason.

D.

"Length of service" means the total of all periods of time during which a worker has been in active service to an employer, including periods of time when the worker was on leave or vacation.

(Ord. No. 7365, § 2, 7-27-2020)

A.

Priority for Priority for Laid Off Workers. An employer shall make the offer to a laid off worker, in writing, to the last known mailing address, electronic mail, and text message phone number, of any position which is or becomes available after the effective date of this chapter for which the laid off worker is qualified. A laid off worker is qualified—and must be offered a position in the order of priority below—if the laid off worker: (1) held the same or similar position at the same site of employment at the time of the laid off worker'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 worker hired into that position. If more than one laid off worker is entitled to preference for a position, the employer shall offer the position to the laid off worker with the greatest length of service in (1) and then (2) with the employer at the employment site.

B.

Time Limit. A laid off worker 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.

(Ord. No. 7365, § 2, 7-27-2020)

A.

A laid off worker may bring an action in the Superior Court of the State of California against an employer for violations of this chapter and may be awarded the following by the court:

Hiring and reinstatement rights pursuant to this chapter.

All actual damages (including, but not limited to, lost pay and benefits) suffered by the laid off worker and for statutory damages in the sum of $1,000, whichever is greater.

Punitive damages, pursuant to California Civil Code Section 3294.

The court shall award reasonable attorneys' fees to (a) a laid off worker who prevails in any such enforcement action; and (b) an employer who prevails and obtains a court determination that the laid off worker's lawsuit was frivolous.

B.

A civil action by a laid off worker alleging a violation of any provision of this chapter shall commence only after the following requirements have been met.

The laid off worker 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

The employer is provided 15 days from receipt of the written notice to cure any alleged violation.

C.

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

(Ord. No. 7365, § 2, 7-27-2020)

A collective bargaining agreement in place on the effective date of this chapter that contains a right of recall provision shall supersede the provision this chapter. When the collective bargaining agreement expires or is otherwise open for renegotiation, the provisions of this chapter may only be waived if the waiver is explicitly set forth in the agreement in clear and unambiguous terms. If a collective bargaining agreement is in place on the effective date of this chapter but the agreement does not include a right of recall provision, this chapter applies. A collective bargaining agreement may be amended at any time to explicitly waive with clear and unambiguous terms the provisions of this chapter.

(Ord. No. 7365, § 2, 7-27-2020)

Except for a collective bargaining agreement provision made pursuant to Section 5.80.050, 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. No. 7365, § 2, 7-27-2020)

If any subsection, sentence, clause or phrase of this chapter 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 chapter. The city council hereby declares that it would have adopted this chapter and each and every subsection, sentence, clause and phrase thereof not declared invalid or unconstitutional, without regard to whether any portion of the chapter would be subsequently declared invalid or unconstitutional.

(Ord. No. 7365, § 2, 7-27-2020)

No later than eleven months after the city council terminates its declaration of local emergency related to COVID-19, staff shall provide a written report to the city council on the effectiveness of the provisions of this chapter in protecting workers' stability of employment, recommendations for additional protections that further the intent of this chapter, and whether the provisions of the chapter are still necessary based on the city's recovery from the impacts of the COVID-19 pandemic. This ordinance shall expire and sunset 12 months after expiration of the city manager's declaration of emergency related to the COVID-19 emergency.

(Ord. No. 7365, § 2, 7-27-2020)

No employer 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 his or her rights under this chapter by any lawful means, or for otherwise asserting rights under this chapter.

(Ord. No. 7365, § 2, 7-27-2020)

The city manager may adopt guidelines, rules, and regulations that will be updated when necessary consistent with this chapter for clarifying any of the provisions of this chapter. A copy of all adopted administrative rules and regulation shall be on file in the city manager's office.

(Ord. No. 7365, § 2, 7-27-2020)