Over the past few years, cities across the United States have started to enact laws placing “Recall and Retention” obligations on private employers – a topic generally reserved for collective bargaining agreements. The hotel industry has been a particular focus of these new laws.
As a bit of background, the “right of recall” or “recall rights” are traditionally confined to collective bargaining agreements enacted in unionized workplaces. In most situations, recall rights relate to layoffs, and provide that in the event of a layoff or reduction in force, unionized employees will be laid off according to seniority; employees with the least seniority will be laid off first. On the other hand, should that employer later wish to refill those eliminated positions – employees will be “recalled’ in reverse order provided the greater seniority employee possesses the specific qualifications, ability, and training necessary to perform the available work in accordance with position specifications. In short, if an employee has more seniority (i.e., time working for the employer), they will be laid off later – and if they are laid off, the individuals with the most seniority will be called back earlier (there are many other facets to a recall provision, but that’s the crux of it).
Traditionally, “at-will’ employees in non-unionized environments do not possess recall rights, as they are generally a benefit of membership in a collective bargaining unit. However, there has now been a wave of “recall right” laws resulting from the COVID-19 pandemic, many of which have focused on the hospitality industry.
Recently, Los Angeles, Long Beach, and several other cities in California passed their own right to recall laws. States have also joined in, with right to recall adopted in Nevada and Connecticut as well. For example, on July 13, 2021, Connecticut signed the Requiring Employers to Recall Certain Laid-Off Workers in Order of Seniority Act, into law. This new law imposes stringent recall and retention obligations on hotels, lodging houses, food service contractors, and building services enterprises that have 15 or more employees in Connecticut, regardless of whether the employees are covered by a collective bargaining agreement. The new requirements were effective immediately.
Now the city of West Hollywood, California, has entered the fray, passing a sweeping hotel worker ordinance that requires a right of recall based on seniority. It’s easy to see why West Hollywood would approve an ordinance like this – according to the West Hollywood Travel + Tourism Board, 25 percent of the City’s labor force works in hospitality and food services.
The West Hollywood ordinance draws upon several concepts from other right of recall laws and introduces some additional ideas.
Under the West Hollywood law, employees laid off due to the pandemic have the right to be recalled, in order of seniority, to a newly established position for which they are qualified. In order to be qualified, the employee must have performed the same or a similar job for the employer in the past or be able to be qualified to perform the job with the same training that would be provided to a new employee. Employees must be given notice of their recall rights in writing, and if an employee is not recalled, while another person is hired, the employee must be given written notice of the reasons for not being selected.
In addition, the West Hollywood ordinance is retroactive – employers must provide notice of recall rights to all previously laid off employees by September 30, 2021. For future layoffs, notice must be provided at the time of the reduction in force. The ordinance includes new recordkeeping requirements and stipulates that recall obligations “follow the property” (i.e., are imposed on future owners or managers of the hotel).
The right-to-recall provisions of the ordinance become effective September 1, 2021, and upon enaction, requires that employees be notified of their rights under the new law. Retaliation for exercising protected rights is prohibited, and a rebuttable presumption exists that any adverse employment action taken against an employee within 90 days of the exercise of rights under the law was taken in retaliation for the exercise of such rights.
Additionally, aggrieved employees have a private right of action to enforce rights under the ordinance, and penalties can be assessed for violations – $100 per aggrieved person per day.
The West Hollywood ordinance is part of a larger trend being seen across the country, where local municipalities are boldly walking into the area of employment law. Business owners across the United States should expect to see more cities coming up with creative new ways to regulate the workplace.
For employers operating hotels in California, and especially West Hollywood, prompt action is suggested to become familiar with the obligations imposed by the new ordinance and prepare for compliance. As the new law overlaps with other existing employer obligations in California, employers should consult knowledgeably employment counsel about haw to quickly get up to speed on all current requirements