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OFFICE OF THE CITY ATTORNEY
CHARLES PARKIN, City Attorney
411 W. Ocean Boulevard, 9th Floor
Long Beach, CA 90802
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF LONG BEACH AMENDING THE LONG BEACH
MUNICIPAL CODE BY AMENDING AND RESTATING
CHAPTER 5.55, AND REPEALING SECTION 5.55.090,
RELATING TO COVID-19 WORKER RECALL
WHEREAS, on January 31, 2020, the United States Secretary of Health and Human Services declared a public health emergency based on the threat caused by COVID-19 (also known as the “Coronavirus”); and
WHEREAS, on March 4, 2020, the Governor of California proclaimed a State of Emergency (Executive Order N-25-20) in California based on the threats to public health caused by COVID-19; and
WHEREAS, on March 4, 2020, after deep concern by the World Health Organization and the Federal government, and as a result of the need to proactively slow the spread of, and combat, COVID-19 in the City of Long Beach, the City Public Health Officer issued a Declaration of Local Health Emergency and the Acting City Manager issued a Proclamation of Local Emergency; and
WHEREAS, on March 10, 2020, the City Council of the City of Long Beach recognized that an emergency did exist and unanimously passed a Resolution ratifying the City Manager’s Proclamation of a Local Emergency and the Public Health Officer’s Declaration of Local Health Emergency; and
WHEREAS, on March 11, 2020, the World Health Organization declared the COVID-19 a pandemic; and
WHEREAS, on March 13, 2020, the President of the United States of America declared a National Emergency as a result of COVID-19; and WHEREAS, on March 24, 2020, in order to mitigate the effects of COVID- ORD-23
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OFFICE OF THE CITY ATTORNEY CHARLES PARKIN, City Attorney 411 W. Ocean Boulevard, 9th Floor Long Beach, CA 90802 19 within the City, the Long Beach Health Officer issued the “Safer at Home” Order to control the affects and spread of COVID-19 and has thereafter issued several new and revised Health Orders in response to COVID-19 variants and surges; and WHEREAS, in response to the COVID-19 pandemic City Council adopted an ordinance on May 19, 2020 adding Chapter 5.55 to the Long Beach Municipal Code requiring certain businesses in Long Beach to comply with citywide worker recall provisions applicable to employer lay-offs resulting from the COVID-19 pandemic; and WHEREAS, COVID-19 daily cases and community transmission remain high. As of February 14, 2022, the 7-day daily average case rate is 42.8 cases per 100,000 people. This is remains much higher than 13.9 cases per 100,000 people as of December 10, 2021. This indicates a continued and high risk of COVID-19 infection for those who are not or cannot be vaccinated against COVID-19; and WHEREAS, based upon Centers for Disease Control and Prevention (CDC) indicators and thresholds, this means that community transmission of COVID-19 within the County of Los Angeles and the City of Long Beach is high; and WHEREAS, it has become clear that the approach of re-evaluating the ordinance every 90 days is only adding uncertainty to an already uncertain situation for workers and ownership in the hotel and janitorial industry; and WHEREAS, making Right to Recall permanent will strengthen Long Beach’s economic development strategy and economic recovery in the event of a future pandemic or economic recession; and
WHEREAS, Right to Recall will preserve job quality in the hospitality and janitorial industries, which are two industries related to tourism that Long Beach has invested over $750 million dollars in over the last few decades; and WHEREAS, better jobs in the hospitality and janitorial industries means more access to good jobs for Long Beach residents; and
WHEREAS, Right to Recall policies would preserve job equity as workers in the hospitality and janitorial industries, the majority of whom are women and workers of
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OFFICE OF THE CITY ATTORNEY CHARLES PARKIN, City Attorney 411 W. Ocean Boulevard, 9th Floor Long Beach, CA 90802 color, have pushed for decades to transform jobs in the hospitality and janitorial industries into dignified jobs that can support a family; and WHEREAS, Right to Recall is beneficial to local businesses seeking to rehire a skilled and trained workforce; and
WHEREAS, Right to Recall can reduce onboarding and training costs for businesses seeking to rehire or retain a skilled and qualified workforce; and WHEREAS, several neighboring cities in Los Angeles County have made Right to Recall and Retention ordinances polices permanent for workers in their hospitality industries, including Santa Monica, West Hollywood, and Glendale; and WHEREAS, now the City Council desires to amend Chapter 5.55 and make Chapter 5.55 permanent to provide certainty and security to workers in high contact, high-risk industries;
NOW, THEREFORE, the City Council of the City of Long Beach ordains as follows:
Section 1. Chapter 5.55 of the Long Beach Municipal Code is amended and restated as follows:
CHAPTER 5.55
COVID-19 CITYWIDE WORKER RECALL
5.55.010 Purpose.
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
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OFFICE OF THE CITY ATTORNEY CHARLES PARKIN, City Attorney 411 W. Ocean Boulevard, 9th Floor Long Beach, CA 90802 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.
5.55.020 Definitions.
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
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OFFICE OF THE CITY ATTORNEY CHARLES PARKIN, City Attorney 411 W. Ocean Boulevard, 9th Floor Long Beach, CA 90802 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.
5.55.030 Right of recall.
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
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OFFICE OF THE CITY ATTORNEY CHARLES PARKIN, City Attorney 411 W. Ocean Boulevard, 9th Floor Long Beach, CA 90802 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.
5.55.040 Enforcement.
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.
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OFFICE OF THE CITY ATTORNEY CHARLES PARKIN, City Attorney 411 W. Ocean Boulevard, 9th Floor Long Beach, CA 90802 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.
5.55.050 Retaliatory action prohibited.
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.
5.55.060 Exemption for collective bargaining agreement.
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.
5.55.070 No waiver of rights
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.
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OFFICE OF THE CITY ATTORNEY CHARLES PARKIN, City Attorney 411 W. Ocean Boulevard, 9th Floor Long Beach, CA 90802
5.55.080 Severability.
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.
Section 2. Section 5.55.090 of the Long Beach Municipal Code is hereby repealed.
Section 3. The City Clerk shall certify to the passage of this ordinance by the City Council and cause it to be posted in three (3) conspicuous places in the City of Long Beach, and it shall take effect on the thirty-first (31st) day after it is approved by the Mayor.
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OFFICE OF THE CITY ATTORNEY CHARLES PARKIN, City Attorney 411 W. Ocean Boulevard, 9th Floor Long Beach, CA 90802 I hereby certify that the foregoing ordinance was adopted by the City Council of the City of Long Beach at its meeting of _______________________, 2022, by the following vote:
Ayes: Councilmembers:
Noes: Councilmembers:
Absent: Councilmembers:
Recusal(s): Councilmembers:
City Clerk Approved: (Date) Mayor