San Diego, CA: Emergency Worker Rehire and Retention Ordinances Passed

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EFFECTIVE

September 9, 2020

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The San Diego City Council passed emergency ordinances implementing rehire and retention requirements for certain employers in the commercial property, hotel, and event center industries.  The employer eligibility requirements vary depending on the industry, but the ordinances generally require the business to provide specific protections to laid-off employees, including the first right to available positions, notice of layoffs, and record retention requirements.

Rehire Ordinance

Covered employers.  The new protections apply to the following employers:

  • Event Center employers with a premises of 50,000 square feet or 5,000 seats used for public performances;
  • Hotels employers with a hotel of at least 100 guest rooms located in the city of San Diego; and
  • Commercial property employers with premises located in San Diego employing 10+ janitorial, maintenance, or security service employees.

Covered employees.  The protections afforded by the ordinance apply to “laid-off employees,” defined as individuals who:

  • Perform at least 2 hours of work within the city of San Diego in a particular week;
  • Have at least six months of service with the employer (or three months or more in the 12 months preceding March 4, 2020);
  • Were separated from service or failed to be scheduled for customary seasonal work on or after March 4, 2020 and before the termination of the statewide Declaration of Emergency;
  • Were terminated due to government shutdown order, lack of business, reduction-in-force, or other economic and non-disciplinary reason; and
  • Are not managers, supervisors, or confidential employees.

Right to rehire.  Covered employers must offer eligible laid-off employees any job position that becomes available after September 8, 2020 to which they are qualified.  This offer must be made in writing, with priority given to employees with the greatest tenure, and the employee will have 10 business days to accept or decline the offer.  If the employee lacks the qualifications for the position, the employer must instead provide the laid-off employee written notice of the non-selection explaining the reasons for the decision within 30 days of the date of hire.

Notice of layoff. Employers are also required to provide laid-off employees with written notice of the layoff and their rights under the emergency ordinance.  Employers have 30 days from September 8, 2020 to provide the notice to employees laid off prior to September 8, 2020.  For layoffs occurring after September 8, 2020, the notice must be provided at time of layoff either in person, or by email and mail to the worker’s last known mailing address.

In addition to the above requirements, employers must maintain records regarding each laid-off employees’ contact information, job information, and a copy of the written layoff notice for at least three years from the date of the notice.

The above requirements remain in effect six months from September 8, 2020 and will automatically be repealed, unless the City Council enacts an additional ordinance rescinding or extending the date.

Retention Ordinance

Covered employers.  The retention ordinance implements protections for employees of a business that sells/transfers to a new or “successor” employer business, and applies to commercial property and hotel businesses.

Covered employees.  Eligible employees include those employed by the incumbent business who:

  • Has a least six months of service with the incumbent employer;
  • Works primarily for a business subject to a change in control;
  • Is employed or contracted to perform work directly by the incumbent business, or by a person who has contracted with the incumbent business to provide services at the business subject to the change in control;
  • Worked for the incumbent business employer on or after March 4, 2020 and prior to the execution of the transfer document; and
  • Is not a manager, supervisor, or confidential employee.

Retention requirement.  Incumbent business owners must provide the name, address, date of hire, and job classification of each eligible employee to the successor business. The successor business is required to hire from this list for up to six months after the transfer document is executed.  Further, the hired worker must be kept for at least 90 days from the employee’s start date and cannot be fired without cause.  At the end of the 90-day period, the employer must conduct a written performance evaluation and consider continued employment.

Record requirements.  The successor employer must keep records of offers of employment to covered employees, as well as written performance evaluations, for at least three years.

Like the rehire ordinance, the retention ordinance is in effect for six months and will repeal automatically, unless the City Council enacts an ordinance extending the effective date.

Action Items

  1. Review the text of the ordinance here.
  2. Prepare required notices.
  3. Have hiring managers trained on rehire requirements.
  4. Consult with counsel before executing transfer of business agreements to prepare for retention requirements.
  5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase

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