State, city enact new rules on rehiring for hospitality jobs
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.