San Diego Municipal Code Div. 28 Service Worker Retention

(“Service Worker Retention” added 7–20–1998 by O–18552 N.S.)

(a) The City awards many contracts to private firms to provide services to the City. The City also leases City Facilities to private firms to operate. These contractors and lessees may subcontract all or a portion of the services to others. At the conclusion of the term of a contract with the City or the expiration of a subcontract, the process of competition sometimes results in the award of the contract to a new or different contractor.

(b) It is the experience of the City that the reasons for changing contractors do not
necessarily include a need to replace workers presently performing services
who already have useful knowledge about the workplace where the services
are performed. Incumbent workers may have invaluable knowledge and
experience with the work schedules, practices, patrons or clients that are
particular to the City Facility or the location where the services are rendered.
Replacing these workers could decrease efficiency and result in a disservice to
the City, the City Facility and its citizens. Retaining existing service workers
could avoid such problems, enhance continuity of service to citizens, and
reduce the likelihood of labor disruptions or disputes at the City Facility or the
location where the services are rendered.

(c) It is unacceptable that contracting decisions involving the expenditure of City
funds could result in the immediate loss of employment to workers on a City
service contract who did not cause or contribute to the need to change
contractors. It is the intent of the Council to provide these incumbent
employees with a reasonable opportunity to obtain possible employment with
the new contractor. It is the additional intent of the Council to avoid or
minimize the disruption in services which may be caused by a change in
contractors.
(“Purpose and Intent” added 7–20–1998 by O–18552 N.S.)
(Amended 5-24-2005 by O-19382 N.S.)

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As used in this Division:

(a) “City Facility” means sports, entertainment or convention building structures
in excess of 17,000 square feet in floor space that are owned, operated or
leased by the City.

(b) “Contract” means a contract, subcontract or other agreement let by, or on
behalf of, the City to provide Services at a City Facility or any other location,
in excess of $25,000 and with a term of more than ninety days. For the
purposes of this Division, Contract does not include (i) procurement contracts
for the purchase or lease of goods, products, equipment supplies or other
property; (ii) professional service contracts; or (iii) construction contracts.

(c) “Contractor” means any person, firm, partnership, corporation, or
combination thereof, who is selected to enter into, or actually enters into a
Contract, subcontract, or other agreement to provide Services at a City
Facility or any other location.

(d) “Covered Employee” means an Employee, as defined in this division, who
has been employed by the Terminated Contractor for a period of six months
or longer at the site or sites covered by the Terminated Contractor’s contract
with the City.

(e) “Employee” means any service employee of a Contractor, including but not
limited to: hotel employees; on-site restaurant, food service or banquet
employees; concession employees; janitorial employees; security guards;
parking attendants; nonprofessional health care employees; gardeners; waste
management employees; ticket takers; and clerical employees. “Employee”
does not include managerial, supervisory, or confidential employees, or those
persons required to possess an occupational license or certificate.

(f) “New Contractor” means the Contractor who has been awarded the Contract
to replace the Terminated Contractor when the Terminated Contractor’s
contract terminates.

(g) “Services” means those services performed by Covered Employees.

(h) “Terminated Contractor” means the Contractor providing Services at a City
Facility or any other location, at the point in time that a Contract for such
Services is awarded to a New Contractor.
(“Definitions” added 7–20–1998 by O–18552 N.S.)
(Amended 5-24-2005 by O-19382 N.S.)

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(a) Within ten days of notice of the termination of a Contract between a Terminated Contractor and the City, or a subcontract thereunder, the Terminated Contractor shall provide to the New Contractor the names, addresses, dates of hire and employment occupation classification of all Covered Employees of the Terminated Contractor.

(b) A New Contractor, awarded a Contract to perform similar services as were
provided by the Terminated Contractor, shall retain the Covered Employees
for a 90 day transition period. The New Contractor may retain the Covered
Employees at the same terms and conditions of employment as existed under
the Terminated Contractor; establish new terms and conditions for those
Covered Employees; or set them as required by law. At the time the Covered
Employees are retain, the New Contractor shall advise them that a written
performance evaluation will be provided at the end of the 90 day transition
period.

(c) If at any time during the 90 day transition period, the New Contractor
determines that fewer employees are required to perform the services under
the Contract than were employed by the Terminated Contractor, the New
Contractor shall retain such Covered Employees as are necessary, determined
by date of hire within job classification. The New Contractor shall maintain a
preferential hiring list of those Covered Employees not initially retained, for
purposes of hiring those Covered Employees during the 90 day transition
period should additional employees become necessary to perform services
under the contract.

(d) Except as provided in subsection (c) of this section, during the 90 day
transition period the New Contractor shall not discharge, without cause, a
Covered Employee retained pursuant to this division. “Cause” for purposes of
this section shall include, but not be limited to, the Covered Employees’
conduct while in the employ of the Terminated Contractor that contributed to
the termination of the Contract for fraud or poor performance.

(e) At the end of the 90 day transition period, the New Contractor shall provide a
written performance evaluation to each Covered Employee. Notwithstanding
anything contained in or concluded by the written performance evaluation, the
New Contractor shall have no obligation to retain any Covered Employee
beyond the end of the 90 day transition period, and the Covered Employees
shall have no right or expectation of continued employment with the New
Contractor beyond the 90 day transition period by virtue of this division. Any

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Covered Employee retained by the New Contractor beyond the 90 day
transition period shall have no further rights under this division, but shall be
governed by other laws applicable to private employment relationships in the
State of California and the City.

(f) Nothing in this division shall be construed as creating any employment
relationship, either during or beyond the 90 day transition period, between the
City and the Covered Employees.
(“Transition Employment and Notice Period” added 7–20–1998 by O–18552 N.S.)

(a) A Covered Employee who has been discharged by a New Contractor in violation of this division may bring a private cause of action in the state court against the New Contractor and may be awarded:

(1) Back pay for each day during which 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 Covered
Employee during the last 3 years of the Covered Employee’s
employment in the same occupation classification; or

(B) The final regular rate received by the Covered Employee from
either the Terminated Contractor or the New Contractor.

(2) Costs of benefits, if any, the New Contractor would have incurred for
the Covered Employee under the New Contractor’s benefit plan.

(b) If the Covered Employee is the prevailing party in any suit brought pursuant
to this division, the court shall award reasonable attorney’s fees and costs of
suit, in additional to any other award of damages.

(c) All Contracts subject to this division shall provide that a violation of this
division shall entitle the City to terminate the Contract and to pursue such
other legal remedies as may be available.

(d) Notwithstanding any other provision of this Municipal Code or any other
ordinance to the contrary, no criminal penalty shall attach for a violation of
this division.
(“Enforcement” added 7–20–1998 by O–18552 N.S.)

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(a) This division shall not be construed to limit a Covered Employee’s rights against the Terminated Contractor or the New Contractor under other applicable laws, including any right the Covered Employee may have to bring suit for wrongful termination against the Terminated Contractor or the New Contractor. (“Availability of Other Forms of Relief” added 7–20–1998 by O–18552 N.S.)

(a) If any severable provision or provisions of this division, or any application thereof, is held invalid, such invalidity shall not affect other provisions or applications of the division that can be given effect notwithstanding such invalidity. (“Severability” added 7–20–1998 by O–18552 N.S.)

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Article 2: Administrative Code