Pasadena Municipal Code Ch. 5.82 Covid-19 Worker Retention Ordinance

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 workers when a business changes ownership.

(Ord. No. 7365, § 3, 7-27-2020)

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

A. "Business" means an owner, operator or manager of a hotel or 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. A "business" includes the owner, operator, manager, or lessee of any restaurant physically located on hotel premises.

B. "Change in control" means any sale, assignment, transfer, 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 Pasadena.

D. "Employment commencement date" means the date on which a worker retained by the successor business employer pursuant to this chapter commences work for the successor business employer in exchange for compensation under the terms and conditions established by the successor business employer or as required by law.

E. "Incumbent business employer" means the person who owns, controls, or operates a business prior to the change in control.

F. "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.

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

H. "Successor business employer" means the person who owns, controls, or operates a business after the change in control.

I. "Transfer document" means the purchase agreement or other documents creating a binding arrangement to effect the change in control.

J. "Worker" means an individual employed by the incumbent business employer: (1) who has a length of service with the incumbent business employer for six 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 managerial, supervisory, or confidential employee.

(Ord. No. 7365, § 3, 7-27-2020)

A. Business Employer's Responsibilities.

1. The incumbent business employer shall, within 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 months after the business is open to the public under the successor business employer.

3. If the successor business employer extends an offer of employment to a worker, the successor business employer shall retain written verification of that offer for no fewer than three 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 90 days following the worker's employment commencement date. During the 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 for the transition period. This offer shall remain open for at least ten business days from the date of the offer.

2. If, within the period established by Section 5.82.030(A)(1), 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 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 90-day transition employment period, the successor business employer shall perform a written performance evaluation for each worker retained pursuant to this chapter. If the worker's performance during the 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 business days following the execution of the transfer document. Notice shall remain posted during any closure of the business and for six 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 visible to workers, other employees, and applicants for employment.

(Ord. No. 7365, § 3, 7-27-2020)

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 his or her rights under this chapter by any lawful means, or for otherwise asserting rights under this chapter.

(Ord. No. 7365, § 3, 7-27-2020)

A. A worker may bring an action in the Superior Court of the State of California against an incumbent business employer or successor business employer for violations of this chapter and may be awarded the following by the court:

1. Hiring and reinstatement rights pursuant to this chapter. For a worker, the 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 years of their employment in the same occupation classification; or

b. The most recent regular rate 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 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 15 days from receipt of the written notice to cure any alleged violation.

C. The court shall award reasonable attorneys' fees to (a) a worker who prevails in any such enforcement action; and (b) 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. No. 7365, § 3, 7-27-2020)

A collective bargaining agreement in place on the effective date of this chapter that contains a worker retention 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 worker retention 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, § 3, 7-27-2020)

Except for a collective bargaining agreement provision made pursuant to Section 5.82.050, 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 a business employer to a worker to waive rights given by this chapter shall be a violation of this chapter.

(Ord. No. 7365, § 3, 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, § 3, 7-27-2020)

No later than eleven months after the lifting of the city's declaration of emergency related to COVID-19, staff shall report to the city council and mayor on the effectiveness of the provisions of this chapter in protecting workers when a business changes ownership, 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, § 3, 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, § 3, 7-27-2020)

TITLE 5 FOOTNOTES

1. For statutory provisions authorizing cities to license businesses for purposes of revenue, see Gov. Code § 37101; for statutory provisions regarding vending stands operated by blind persons, see Gov. Code § 6900 et seq.

2. For statutory provisions authorizing cities to license businesses for purposes of revenue and regulation, see Gov. Code § 27101.

Cross-references: Sign Code, see Ch. 14.28 of this code. Building and construction, see Title 14 of this code.

3. For statutory provisions authorizing cities to license business for purposes of revenue and regulation, see Gov. Code § 37101.

Prior ordinance history: Ord. 5098, 5116 and 5368.

4. For statutory provisions authorizing cities to license business for purposes of revenue and regulation, see Gov. Code § 37101; for statutory provisions authorizing cities to license business in the exercise of police power, see Bus. & Prof. Code §§ 16000—16003.

5. For statutory provisions authorizing cities to license businesses for purposes of revenue and regulation, see Gov. Code § 37101.

6. For statutory provisions authorizing cities to license businesses for purposes of revenue and regulation, see Gov. Code § 37101.

7. For statutory provisions authorizing cities to grant franchises for the construction of public utilities, see Gov. Code § 39732; for the City Charter provisions regarding granting of franchises, see Charter §§ 1101—1104.

8. For statutory provisions authorizing cities to license businesses for purposes of revenue and regulation, see Gov. Code § 37101.

9. For statutory provisions authorizing cities to license businesses for purposes of revenue and regulation, see Gov. Code § 37101; for statutory provisions authorizing cities to license businesses in the exercise of police power, see Bus. & Prof. Code §§ 16000—16003.

10. For statutory provisions authorizing cities to license businesses for purposes of revenue and regulation, see Gov. Code § 37101; for statutory provisions authorizing cities to license businesses in the exercise of police power, see Bus. & Prof. Code §§ 16000—16003.

Cross References: Auctions, see Ch. 5.28. Consumer Protection, see Art. VI, Title 9.

14. Cross References: Television Systems, see Ch. 5.64. Surety, see Ch. 2.64. Excavations, see Ch. 12.16. Underground Facilities, see Ch. 14.32.

15. For statutory provisions regarding local regulations of vehicles for hire, see Veh. Code § 16501; for provisions regarding carriers generally, see Civil Code § 2085 et seq., and Pub. Util. Code § 200 et seq.; for provisions regarding financial responsibilities, see Veh. Code § 16500 et seq.

Prior ordinance history: Ords. 4130, 4226, 4237, 4473, 4733, 4749, 4874, 5060, 5281, 5301, 5317, 5522, 6113 and 6377.

16. Prior ordinance history: Ord. 5312.