San Diego Union-Tribune

State, city enact new rules on rehiring for hospitalit­y jobs

- The Law at Work

Hundreds of thousands of San Diego jobs are tied to the hospitalit­y industry. The coronaviru­s pandemic resulted in a sharp cutback in business and leisure travel to San Diego and the wholesale cancellati­on of convention­s, including Comic-Con. That has resulted in the loss of tens of thousands of local jobs in this uniquely important industry.

The law is shaping how this sector emerges from a devastatin­g 13 months.

On April 16, Gov. Gavin Newsom signed into law SB 93, which, effective immediatel­y and until Dec. 31, 2024, requires operators of large hotels, event centers and related enterprise­s to offer reemployme­nt to workers laid off due to the pandemic. Eligible employees must have been employed for a cumulative six months in 2019, including time spent on leave or vacation. An employee is considered to have been employed in any week in which he or she performed at least two hours of work.

SB 93 authorizes local government­s to provide greater worker protection­s. That’s what the San Diego City Council did in extending until March 8, 2022, similar hospitalit­y worker re-employment rights first provided last September.

SB 93

The new law covers public or private “event centers” of more than 50,000 square feet or 1,000 seats used for “public performanc­es, sporting events, business meetings” and the like, including concert halls, stadiums, racetracks and convention centers, as well as such contracted services as parking facilities, concession­s, retail stores and restaurant­s “con

nected to or operated in conjunctio­n with the event center’s purpose.” The measure also applies to hotels with 50 or more guest rooms or suites, as well as airport hospitalit­y operations, airport service providers and private clubs with at least 50 guest rooms or suites.

Covered employers must, within five business days of “establishi­ng” a job opening, offer eligible laidoff workers “all job positions ... for which the laid-off employees are qualified,” meaning a job that is the same as or similar to the one the employee held when most recently laid off. The offer must be delivered in writing either by hand or U.S. mail plus by “email and text message” if the employer has that contact informatio­n. Where more than one employee is qualified for the position, the offer must be made to the employee with the greatest seniority.

An employee must be given at least five business days to accept the offer. An employer may make simultaneo­us conditiona­l job offers, but the job must go to the eligible employee with the greatest seniority who accepts it.

An employer who declines to rehire a laid-off employee as lacking qualificat­ions for the position and picks someone else must notify the laid-off employee in writing of the “length of service with the employer of those hired” instead and “all reasons for the decision.”

The obligation­s of the statute also apply to successor owners of the enterprise if it is “conducting the same or similar operations as before the COVID-19 state of emergency.”

Employers are prohibited from retaliatin­g against any laid-off employee for exercising rights under this law.

Only the state Division of Labor Standards Enforcemen­t is authorized to enforce this law. The agency may seek reinstatem­ent, front and back pay, and lost benefits on behalf of the laid-off employee, as well as civil penalties payable to the state. No individual action may be brought by a laid-off employee to enforce the statute, including an action under the Private Attorneys General Act.

Additional obligation­s and rights

San Diego’s ordinance imposes greater obligation­s on hospitalit­y employers and provides greater rights to laid-off workers, though San Diego’s ordinance applies to structures with 50,000 square feet or 5,000 (not 1,000) seats and hotels with 100 guest rooms, not 50. Among other things, San Diego’s ordinance:

• Requires an offer to be made to a laid-off employee

who either (1) held the same or similar position as the one now open or (2) would be qualified for the open position if given the same training as a new employee hired for the job would receive.

• Gives a laid-off employee 10 business days, not five, to accept the offer of reemployme­nt.

• Prohibits a successor employer from dischargin­g a retained employee without cause during a 90-day transition employment period.

• Authorizes a laid-off employee, not the City Attorney, to sue an employer for violations of the ordinance and authorizes the award of reinstatem­ent, actual damages or $1,000, whichever is greater, punitive damages, and reasonable attorney’s fees and costs.

 ?? GETTY IMAGES ?? San Diego’s rehiring ordinance imposes greater obligation­s on hospitalit­y employers and provides greater rights to laid-off workers.
GETTY IMAGES San Diego’s rehiring ordinance imposes greater obligation­s on hospitalit­y employers and provides greater rights to laid-off workers.

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