HomeMy WebLinkAboutOrdinance 2773 N.C.S. 04/19/2021 Ordinance No. 2773 N.C.S. Page 1
EFFECTIVE DATE
OF ORDINANCE
April 19, 2021
ORDINANCE NO. 2773 N.C.S.
Introduced by: D’Lynda Fischer Seconded by: Dennis Pocekay
AN URGENCY ORDINANCE OF THE CITY OF PETALUMA CITY COUNCIL ENACTING A
NEW CHAPTER 8.40 OF THE PETALUMA MUNICIPAL CODE TO PROTECT
HOSPITALITY WORKER JOB SECURITY BY ESTABLISHING A RIGHT TO RECALL FOR
EMPLOYEES OF HOTELS WITH 50 OR MORE GUEST ROOMS
WHEREAS, COVID-19 (also known as the “Coronavirus Disease”) is a respiratory disease which
was first detected in China and has now spread across the globe, with multiple confirmed cases in
California, including the City of Petaluma; and
WHEREAS, on January 31, 2020, the United States Secretary of Health and Human Services declared
a public health emergency based on the threat caused by COVID-19, and the President of the United States
issued a Proclamation Declaring a National Emergency Concerning COVID-19 beginning March 1, 2020;
and
WHEREAS, on March 4, 2020, Governor Gavin Newsom (Governor) proclaimed a State of
Emergency to exist in California as a result of the threat of COVID-19; and
WHEREAS, on March 9, 2020, the City Manager of the City of Petaluma (City Manager) proclaimed
the existence of a local emergency related to the COVID-19 threat; and
WHEREAS, the World Health Organization announced on March 11, 2020, that it has characterized
COVID-19 as a pandemic; and
WHEREAS, since the declaration of a national public health emergency on January 31, 2020, the
COVID-19 pandemic has caused hospitality employers to discharge, layoff and furlough workers on a
massive scale; and
WHEREAS, many thousands of hospitality workers have been separated from their jobs already
during the pandemic, and many thousands more may face separation in the coming months, and National
Public Radio, in an article dated September 29, 2020, entitled “Pandemic Threatens Long-Term Job
Security After Hospitality Industry Layoffs” has reported that the Covid-19 pandemic has impacted the
hospitality industry especially hard, eliminating around 4 out of 10 hospitality jobs nationally according to
the U.S. Bureau of Labor Statistics, with some experts estimating that the industry may not fully recover
until as late as 2023; and
WHEREAS, while federal, state, and local programs, and efforts by some of Petaluma’s non-profits
have provided support for Petaluma’s hospitality workers in the short-term, Petaluma hospitality workers
would benefit from a right to return to their previous jobs as the COVID-19 pandemic recedes and business
returns to the City; and
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WHEREAS, requiring Petaluma’s hospitality employers to permit their former employees to return
to work can speed the transition back to a healthy labor market and lessen the damage to Petaluma’s
economy and the local community from the COVID-19 pandemic; and
WHEREAS, the California Supreme Court, in the case of California Grocers Association v. City of
Los Angeles, (2011) 52 C. 4th 177, in upholding a Los Angeles ordinance giving grocery workers a right
of retention after a change in grocery ownership, has ruled that state and local governments are not
preempted from regulating substantive terms of employment that otherwise may be the subject of
collective bargaining, and that such local regulatory authority includes matters of hiring and firing, which
have been traditionally recognized as core incidents of state and local governments’ police power; and
WHEREAS, Section 76A of the Petaluma City Charter authorizes the adoption of ordinances for the
immediate preservation of the public peace, health or safety, which contain a declaration of and the facts
constituting its urgency, so long as such ordinances are passed by a unanimous vote of the Council
members present at the time of adoption; and
WHEREAS, as the COVID-19 pandemic recedes and business returns to Petaluma, there is an urgent
need to require as soon as possible that Petaluma’s hospitality employers permit their former employees
to return to work to speed the City’s transition back to a healthy labor market and lessen the damage to
Petaluma’s economy and the local community from the COVID-19 pandemic and to avoid the worker
displacement that otherwise may occur as the hospitality industry begins rehiring; and
WHEREAS, providing a worker right of recall so as to avoid the community disruption that arises
from job loss and worker displacement can have a larger positive impact on the Petaluma labor market
and economy through application to Petaluma’s larger hotels with larger numbers of guest rooms and
correspondingly larger workforces; and
WHEREAS, in enacting this ordinance, the City Council is relying on the City’s police power and
home rule authority pursuant to Article XI, Sections 5 and 7 of the California Constitution to regulate
substantive terms of employment that otherwise may be the subject of collective bargaining, including
matters of hiring and firing, which have been traditionally recognized as core incidents of state and local
governments’ police power; and
WHEREAS, this ordinance is exempt from the requirements of the California Environmental Quality
Act (“CEQA”) pursuant to Section 15324 of the CEQA Guidelines as an action taken by the City as a
regulatory agency as authorized by statute to regulate employee working conditions where there will be
no demonstrable physical changes outside the place of work, and is also exempt from CEQA under the
“common sense” exception in CEQA Guidelines Section 15061(b)(3), which establishes the general rule
for projects concerning which can be seen with certainty that there is no possibility that the activity in
question may have a significant effect on the environment, because the ordinance regulates employee
working conditions which will not result in any demonstrable changes outside of employees’ place of
work.
NOW THEREFORE BE IT ORDAINED by the City Council of the City of Petaluma as follows:
Section 1. Findings. The above recitals are hereby declared to be true and correct and are incorporated
into this ordinance as findings of the City Council.
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Section 2. Exemptions from CEQA. This ordinance is exempt from the requirements of the California
Environmental Quality Act (“CEQA”) pursuant to Section 15324 of the CEQA Guidelines as an action
taken by the City as a regulatory agency as authorized by statute to regulate employee working conditions
where there will be no demonstrable physical changes outside the place of work. This ordinance is also
exempt from CEQA under the “common sense” exception in CEQA Guidelines Section 15061(b)(3),
which establishes the general rule for projects concerning which can be seen with certainty that there is
no possibility that the activity in question may have a significant effect on the environment, because the
ordinance regulates employee working conditions which will not result in any demonstrable changes
outside of employees’ place of work.
Section 3. New Chapter 8.40 enacted. A new Chapter 8.40 is hereby added to the Petaluma Municipal
Code to read as follows:
8.40.010. Title.
This chapter shall be known as the “City of Petaluma Hospitality Worker Right to Recall.”
8.40.020. Definitions.
The definitions set forth in this section shall govern the construction and meaning of the terms
used in this chapter:
A. “Covered Enterprise” means a hotel.
B. “Employee” means any person who performs work within the geographic boundaries of the
city for an employer.
C. “Employer” means any person, including a corporate officer or executive, who directly or
indirectly or through an agent or any other person, including through the services of a
temporary service or staffing agency or similar entity, owns or operates a covered enterprise
within the city and employs or exercises control over the wages, hours or working conditions
of any employee.
D. “Hotel” means a residential building that is designated or used for lodging and other related
services for the public, including but not limited to food and beverage preparation and service
and meetings, tradeshows and conventions, and that contains 50 or more guest rooms, or suites
of rooms. Adjoining rooms do not constitute a suite of rooms. “Hotel” also includes any
contracted, leased or sublet premises connected to or operated in conjunction with a hotel.
E. “Laid-off Employee” means any employee who was employed by the employer for six months
or more in the 12 months preceding January 31, 2020, and whose most recent separation from
active service occurred after January 31, 2020, and was due to a government order, lack of
business, a reduction in force or other, economic, non-disciplinary reasons.
F. “Length of Service” means the total of all periods of time during which an employee has been
in active service for an employer, including periods of time when the employee was on leave
or on vacation.
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G. “Person” means an individual, corporation, partnership, limited partnership, limited liability
partnership, limited liability company, business trust, estate, trust, association, joint venture,
agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign.
8.40.030. Right to Recall.
A. Employers shall offer their laid-off employees in writing, by registered mail to the laid-off
employee’s last known physical address, and by email and text message to the extent the
employer possesses such information, all job positions which become available after this
chapter’s effective date for which the laid-off employees are qualified. A laid-off employee is
qualified for a position if the laid-off employee:
1. held the same or similar position at the covered enterprise at the time of the laid-off
employee’s most recent separation from active service with the employer; or
2. is or can be qualified for the position with the same training that would be provided to a
new employee hired into that position.
Employers shall offer positions to laid-off employees first to laid-off employees that qualify
under paragraph (1) of this section, and second to laid-off employees that qualify under
paragraph (2) of this section. Where more than one laid-off employee is entitled to preference
for a position, employers shall offer the position to the laid-off employee with the greatest
length of service for the covered enterprise.
B. A laid-off employee who is offered a position pursuant to this chapter shall have no less than
ten (10) days from the date of receipt of the mailed offer to accept or decline the offer.
Employers may make simultaneous, conditional offers of employment to laid-off employees,
with the final offer of employment conditioned on application of the priority order set forth in
paragraph A of this section.
C. An employer that declines to recall a laid-off employee because the employee is not qualified
for the position and instead hires someone other than a laid-off employee shall provide the
laid-off employee a written notice within thirty (30) days specifying the basis for determining
the laid-off employee is not qualified for the position.
D. The requirements of this chapter shall apply to covered enterprises notwithstanding the
occurrence of any of the following:
1. The ownership of the employer changed after a laid-off employee’s separation from
employment, but the covered enterprise is conducting the same or similar operations as
before January 31, 2020;
2. The form of organization of the employer changed after January 31, 2020;
3. Substantially all of the assets of the employer were acquired by another entity which
conducts the same or similar operations using substantially the same assets;
4. The employer relocated the covered enterprise at which a laid-off employee was employed
before January 31, 2020 to a different location within the city; or
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5. Any combination of the circumstances described in paragraphs (1) through (4).
8.40.040. Notice.
A. Written Notice of Layoff. Employers shall provide laid-off employees written notice of layoff,
either in person or to the laid-off employee’s last-known address, and by text and email to the
extent the employer possesses such information. Such notice shall be provided at the time of
layoff or within 20 days of the effective date of this chapter if the layoff took place before such
date. Employers shall provide notice to each laid-off employee in a language understood by
the laid-off employee. Written notices of layoff required pursuant to this section shall include
the following:
1. a notice of the layoff and the layoff’s effective date; and
2. a summary of the right to reemployment created by this chapter, or clear instructions on
how an employee may access such information.
B. Retention of Records. Employers shall retain the following records for at least two years for
each laid-off employee: the employee’s full legal name; the employee’s job classification at
the time of separation from employment; the employee’s date of hire; the employee’s last
known address of residence; the employee’s last known email address; the employee’s last
known telephone number; and a copy of the written notice of layoff provided to the employee.
For the purposes of this paragraph, the two-year retention period shall be measured from the
date of the written notice of layoff required pursuant to this section.
8.40.050. Retaliatory Action Prohibited.
No employer may refuse to employ, terminate, reduce the compensation of, or otherwise take any
adverse action against any person for seeking to enforce his or her rights under this chapter by any
lawful means, or for participating in proceedings related to this chapter, or for opposing any
practice proscribed by this chapter, or for otherwise asserting rights under this chapter. This
section shall apply to protect any employee who mistakenly, but in good faith, alleges an
employer’s noncompliance with this chapter.
8.40.060. Enforcement.
A. This chapter may be enforced in a civil action in Superior Court brought by the city or by one
or more employees for and on behalf of themselves, or by an agent or representative designated
by one or more employees to bring an action for and on behalf of the employee(s).
B. If the court finds that an employer has violated this chapter, the court may enjoin the employer
from engaging in such violation, and order such affirmative action as may be appropriate,
which may include, but is not limited to, reinstatement or hiring of employees, with or without
back pay, including fringe benefits, or any other equitable relief as the court deems appropriate.
Interim earnings or amounts earnable with reasonable diligence by an aggrieved employee
shall operate to reduce the back pay or lost wages that otherwise may be ordered by the court
pursuant to this paragraph. Before interim earnings are deducted from back pay or lost wages,
there shall be deducted from the interim earnings any reasonable amounts expended by the
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employee in searching for, obtaining, or relocating to new employment. The court may also
order compensatory and punitive damages if the court finds that an employer violated this
chapter with malice or with reckless indifference to the requirements of this chapter, and may
award treble damages on behalf of an employee terminated in violation of section 8.40.050.
C. If it is established that a laid-off employee exercised the employee’s rights under this chapter
or alleged in good faith that an employer was not complying with this chapter, and the
employer thereafter refused to employ, terminated, demoted or otherwise took adverse action
against the employee, and that action took place within sixty (60) days after exercise of the
employee’s rights under this chapter, then a rebuttable presumption shall arise that the
employer’s action was taken violation of section 8.40.050. To rebut the presumption, an
employer must prove that the employer took the action for a legitimate business reason. Laid-
off employees may establish that an employer’s action was taken in violation of Section
8.40.050 by proving that an employer’s asserted legitimate business reason is pretextual.
D. The court shall award plaintiffs that prevail in any legal action taken pursuant to this chapter
reasonable attorney's fees, expert witness fees and costs as part of the costs recoverable.
8.40.070. Regulations.
The city manager may in his or her sole discretion promulgate and enforce rules and regulations,
and issue determinations and interpretations, consistent with and necessary for the implementation
of this chapter. Such rules and regulations, determinations, and interpretations shall have the force
of law and may be relied upon by employers, employees, and other persons to determine their
rights and responsibilities under this chapter.
8.40.080. Relationship to employment contracts and agreements.
This chapter applies to all employees as defined herein regardless of whether they are represented
for purposes of collective bargaining or are covered by a collective bargaining agreement. Nothing
in this chapter shall be construed to invalidate or limit the rights, remedies and procedures of any
contract or agreement that provides equal, additional, greater protections for employees compared
with the protections afforded by this chapter.
8.40.090. No Preemption of Higher Standards.
The purpose of this chapter is to establish minimum labor standards. This chapter does not preempt
or prevent the establishment of superior employment standards (including higher wages) or
expansion of the applicability of or the rights established by this chapter by ordinance, resolution,
contract, or any other action of the city. This chapter shall not be construed to limit a discharged
employee’s right to bring a cause of action for wrongful termination.
Section 4. Severability. If any section, subsection, sentence, clause, phrase or word of this ordinance
is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court of competent
jurisdiction or preempted by state legislation, such decision or legislation shall not affect the validity of
the remaining portions of this ordinance. The City Council hereby declares that it would have passed and
adopted this ordinance and each and all provisions thereof irrespective of the fact that any one or more of
said provisions be declared unconstitutional, unlawful or otherwise invalid.
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Section 5. Effective Date. Adoption of this ordinance as an urgency ordinance with immediate effect
is necessary for the preservation of the public health, safety and welfare in accordance with Section 76A
of the Petaluma City Charter because as the COVID-19 pandemic recedes and business returns to
Petaluma, there is an urgent need to require as soon as possible that Petaluma’s hospitality employers
permit their former employees’ to return to work to speed the City’s transition back to a healthy labor
market and lessen the damage to the Petaluma’s economy and the local community from the COVID-19
pandemic, and to avoid the worker displacement that otherwise may occur as the hospitality industry
begins rehiring. Accordingly, in accordance with Section 76A of the Petaluma City Charter, this ordinance
will become effective immediately upon its adoption, if passed by a unanimous vote of the Petaluma City
Council members present.
Section 6. Repeal. The City Council may repeal this ordinance by duly adopted resolution upon
finding that the conditions warranting the enactment of this ordinance no longer apply in the city.
Section 7. Posting/Publishing of Notice. The City Clerk is hereby directed to publish or post this
ordinance or a synopsis for the period and in the manner provided by the City Charter and other applicable
law.
INTRODUCED, ordered posted, and ADOPTED this 19th day of April 2021 by the following vote:
Ayes: Mayor Barrett, Vice Mayor Fischer, Healy, Kearney, McDonnell, Miller
Noes: None
Abstain: None
Absent: None
Recused: King
Teresa Barrett, Mayor
ATTEST: APPROVED AS TO FORM:
Kendall Rose, CMC, City Clerk Eric Danly, City Attorney
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