Los Angeles County Enacts COVID-19 Worker Protection Ordinances
Los Angeles County Enacts COVID-19 Worker Protection Ordinances

The Los Angeles County Board of Supervisors has followed the lead of the Los Angeles City Council by passing COVID-19 right of recall and worker retention ordinances that are similar to the City of Los Angeles COVID-19 recall and retention ordinances passed on April 29, 2020. The county right of recall ordinance requires certain janitorial, maintenance, security service and hospitality employers, when rehiring, to offer jobs based on seniority to certain workers laid off during the COVID-19 pandemic. Both ordinances are intended to assist workers in unincorporated areas of Los Angeles County who work in sectors which have been especially hard hit by the coronavirus crisis. 

The Right of Recall ordinance covers hotels and residential buildings located in Los Angeles County that are designated for public lodging with at least 50 guest rooms or gross receipts exceeding $5 million in the past year. Restaurants situated on hotel properties are included in the ordinance.

Commercial property employers in Los Angeles County such as offices, shopping centers or factories with at least 25 janitorial, maintenance and/or security workers are covered by the ordinance, but only with respect to janitorial, maintenance and security workers.

The ordinance applies to all persons who were laid off after March 4, 2020 as a result of a lack of business, reduction in workforce or other economic, non-disciplinary reasons, who worked within the unincorporated areas of the County of Los Angeles for at least two hours in a particular week and who had at least six months’ of prior service. Thus, unlike the city recall ordinance, there is no exception for managerial and supervisory employees. The ordinance imposes a rebuttable presumption that all terminations occurring on or after March 4, 2020, are due to non-disciplinary reasons.

Covered workers are to be rehired in the following order: (i) workers who held the same or similar position with the employer at that site at the time of the worker’s most recent separation from active employment with the employer, and (ii) workers that are or who can be qualified with the same training given to a new worker hired for that position. If more than one worker is entitled to preference, seniority would be used to establish priority. The rehire offer must be in writing and workers must be given at least five business days in which to accept or decline the offer. A written offer must be sent to the last known address, email address and text message number.

Any collective bargaining agreement with clear and unambiguous recall language supersedes the provisions of the ordinance. 

A covered employer’s failure to follow the provisions of the ordinance will expose the employer to damages or the sum of $1,000, whichever is greater, punitive damages and reasonable attorneys’ fees and costs. However, a laid off worker seeking to bring such a claim must first provide written notice to the employer along with a 15-day opportunity to cure the alleged failure. No criminal penalties will apply for violations of the ordinance. 

The Right of Retention ordinance covers the same businesses that are the subject of the recall ordinance, and the same collective bargaining agreement exceptions apply. The ordinance covers workers with at least six months of prior service that were employed by these businesses as of March 1, 2020, before the signing of a document creating a binding agreement for the transfer of the business.  Workers who are managerial, supervisory, or confidential employees or who are hired through a temporary staffing agency are not covered by the ordinance.  A “confidential employee” is defined by Government Code section 3513 as any employee who is required to develop or present management positions with respect to employer-employee relations or whose duties normally require access to confidential information contributing significantly to the development of management positions.

In substance, the worker retention ordinance requires that covered employees be hired by any successor business owner or operator following a change in control of the business. The employees to be hired must be given written offers of employment which are to be held open for a minimum of five business days.

Once the worker is hired by the successor employer or operator, the worker must be retained for a period of 90 days following the start of employment. At the end of the 90-day period, the employer must perform a written performance evaluation of each worker and must consider providing offers of continued employment to those who receive satisfactory evaluations. These records must be maintained for a minimum of three years.

If the successor employer determines that fewer employees are needed than were employed by the prior owner following a change in control, it must provide offers to covered employees based on seniority.

Written notice of the change in control must be posted in a conspicuous place within five days of the transfer and must remain posted for six months after the business opens to the public.  The notice must include contact information for both the successor and predecessor business employers, and the effective date of the business transfer.

As with the right of recall ordinance, any collective bargaining agreement with clear and unambiguous recall language supersedes the provisions of the ordinance. 

Failure to comply with the ordinance exposes the prior or new employer to damages including front and back pay, the value of lost benefits and reasonable attorneys’ fees and costs; employers can only recover reasonable attorneys’ fees and costs if it is proven that the action was frivolous. As with the recall ordinance, a worker seeking to bring such a claim must first provide written notice to the employer, and the employer will have a 15-day opportunity to cure the alleged failure.

The author would like to gratefully acknowledge the assistance of Joanne Warriner.

This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again. This is commentary, people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing. No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits). But feel free to contact us with your questions and comments—who knows, we might even answer you. And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry). Big news: Copyright 2020. All rights reserved; yep, all of them.

If you have any questions about this article, contact the writer directly, assuming he or she was brave enough to attach their name to it. If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq., commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department.

Tags: COVID-19


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