Chapter 9.70
COVID-19 WORKER RECALL PROTECTIONS
Sections:
9.70.040 Retaliatory action prohibited.
9.70.050 Relationship to employment contracts and agreements.
9.70.010 Definitions.
The defined terms in Chapter 9.60 SCCC shall have the same meaning when used in this chapter. In addition, for purposes of this chapter, the following terms shall have the following meanings:
(a) “Employer” means a covered entity, or the operator of a hotel, and in addition includes any person operating any contracted, leased, or sublet premises and services connected to or operated in conjunction with the covered entity, including food preparation facilities, concessions, janitorial services, maintenance services, security services, ushering and ticket taking services, retail stores, restaurants, bars, and structured parking facilities.
(b) “Hotel” means a residential building that is designated or used for lodging and other related services for the public, and containing fifty (50) or more guests rooms, or suites of rooms (adjoining rooms do not constitute a suite of rooms). “Hotel” also includes any contracted, leased or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services at the building.
(c) “Laid-off worker” means any person who, in a particular week, performs at least eight 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 17, 2020, as a result of a lack of business, a reduction in work force or other economic, nondisciplinary reason. This chapter creates a rebuttable presumption that any termination occurring on or after March 17, 2020, was due to a nondisciplinary reason. For purposes of this chapter, a laid-off worker does not include a manager, supervisor, confidential employee or a person who performs as their primary job responsibility sponsorship sales for an event center employer.
(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. 2024 § 1, 11-10-20).
9.70.020 Right of recall.
(a) Priority for Laid-Off Workers.
(1) 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: (A) 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 (B) 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 (A) and then (B) with the employer at the employment site. Where 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 for the covered enterprise.
(b) Time Limit.
(1) A laid-off worker who is offered a position pursuant to this chapter shall be given no less than five business days from the date the offer is first received in which to accept or decline the offer. An employer may make simultaneous conditional offers of employment to laid-off workers, with the final offer of employment conditioned on application of the priority system set forth in this section.
(c) An employer that declines to recall a laid-off worker on the grounds of lack of qualifications and instead hires someone other than a laid-off worker shall provide the laid-off worker a written notice within thirty (30) days identifying those hired in lieu of such recall, along with all reasons for such decision. (Ord. 2024 § 1, 11-10-20).
9.70.030 Enforcement.
(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:
(1) Reinstatement to his or her former position at no less than the last wage rate and benefits that the laid-off worker received.
(2) Back pay, including the value of benefits, for each day during which the violation continues, which shall be calculated at a rate of compensation per day not less than the higher of:
(A) The average regular rate of pay received by the laid-off worker, during the last six months of the worker’s employment, times the average hours worked per work day by the worker during the last six months of the worker’s employment in that job classification; or
(B) The final regular rate of pay received by the laid-off worker at the time of separation times the average hours worked per work day by the worker during the last six months of the worker’s employment in that job classification; and
(3) If the Court determines that the employer’s violation was willful, it shall order treble back pay.
(4) Punitive damages, pursuant to California Civil Code Section 3294.
(b) The Court shall award reasonable attorneys’ fees and costs to a laid-off worker who prevails in any such enforcement action. 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:
(1) The laid-off worker provides written notice to the employer of the provisions of the chapter alleged to have been violated; and
(2) The employer is provided fifteen (15) days from receipt of the written notice to cure any alleged violation.
Notwithstanding any provision of this Code, or any other ordinance to the contrary, no criminal penalties shall attach for violation of this chapter. (Ord. 2024 § 1, 11-10-20).
9.70.040 Retaliatory action prohibited.
No employer shall refuse to employ, terminate, reduce in compensation, or otherwise take any adverse action against any person for seeking to enforce his or her 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. This section shall also apply to any laid-off worker who mistakenly, but in good faith, alleges noncompliance with this chapter. (Ord. 2024 § 1, 11-10-20).
9.70.050 Relationship to employment contracts and agreements.
This chapter applies to all laid-off workers as defined herein regardless whether they are represented for purposes of collective bargaining or are covered by a collective bargaining agreement. Nothing in this chapter shall be construed to invalidate or limit the rights, remedies and procedures of any contract or agreement that provides greater or equal protection for employees than are afforded by this chapter. The provisions of this chapter may only be waived in a collective bargaining agreement if the waiver is explicitly set forth in the agreement in clear and unambiguous terms. (Ord. 2024 § 1, 11-10-20).
9.70.060 No waiver of rights.
Except for a collective bargaining agreement provision made pursuant to SCCC 9.70.050, 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. 2024 § 1, 11-10-20).