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HomeMy WebLinkAboutOrdinance 2776 N.C.S. 07/12/2021 DocuSign Envelope ID:C8712C76-9656-4778-BD26-3356E32BA296 EFFECTIVE DATE ORDINANCE NO. 2776 N.C.S. OF ORDINANCE June 16, 2021 Introduced by: Mike Healy Seconded by: Dennis Pocekay AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA ENACTING A NEW CHAPTER 8.60 OF THE PETALUMA MUNICIPAL CODE TO PROTECT HOSPITALITY WORKER JOB SECURITY BY ESTABLISHING A RIGHT TO RETENTION 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 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 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, in 2020, due to the COVID-19 pandemic, the hotel industry experienced historically low occupancies, massive job loss, and hotel closures across the country, resulting in the loss of more than 670,000 direct hotel industry operations jobs and nearly 4 million jobs in the broader hospitality industry, and elimination of 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 travel not expected to return to pre-pandemic levels until 2024; 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 still face significant job and economic insecurity because of the effect of COVID-19 on the hospitality industry,and a right of retention for Petaluma hospitality workers can provide for fair employment practices in the hospitality business sector,promote job stability of hospitality workers and reduce the demand for government-funded social services while the hospitality industry works to recover from the impacts of COVID-19; and WHEREAS, providing a right of retention for Petaluma hospitality employees to permit retention of their jobs for 90 days following a change of control of the workers' employer 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 Ordinance No. 2776 N.C.S. Page 1 DocuSign Envelope ID:C8712C76-9656-4778-BD26-3356E32BA296 WHEREAS, as the COVID-19 pandemic recedes and business returns to Petaluma, hospitality worker retention rights can support 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 by avoiding the worker displacement that otherwise may occur from changes of hotel control; and WHEREAS,providing a worker right of retention to avoid the community disruption that can result from job loss and worker displacement due to changes in hotel control 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, the California Supreme Court, in the case of California Grocers Association v. City of Los Angeles,(2011) 52 C.4t' 177,in upholding a Los Angeles ordinance giving workers at large grocery stores 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, 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 it 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. 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 it 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 8.60 enacted. A new Chapter 8.60 is hereby added to the Petaluma Municipal Code to read as follows: Ordinance No. 2776 N.C.S. Page 2 DocuSign Envelope ID:C8712C76-9656-4778-BD26-3356E32BA296 8.60.010. Title. This chapter shall be known as the "City of Petaluma Hospitality Worker Right to Retention." 8.60.020. Definitions. The definitions set forth in this section shall govern the construction and meaning of the terms used in this chapter: A. "Change in control" means any sale, assignment, transfer, contribution, or other disposition of all or substantially all of the assets used in the operation of a hotel, or a discrete portion of a hotel that continues to operate as the same type of business of the incumbent hotel employer, or any person who controls the incumbent hotel employer. B. "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. C. "Hotel employee"means any individual whose regular place of work is a hotel within the city and who is employed on a full-time basis or a part-time basis such that the employee is regularly scheduled to work eight or more hours per week during the ninety (90) days immediately preceding any change in control subject to this chapter. For the purposes of this chapter, "hotel employee" excludes persons who are managerial, supervisory, or confidential employees, and persons regularly scheduled to work fewer than eight hours per week. D. "Incumbent hotel employer"means the person who owns, controls, and/or operates a hotel prior to the change in control. E. "Person"means any individual,proprietorship,partnership,joint venture, corporation,limited liability company, trust, association, or other entity, with more than twenty-five (25) employees in the State of California that may employ persons or enter into service contracts. For the purposes of this chapter, "person"excludes a county, school district, community college district,the State of California,the federal government, and any other governmental entity. F. "Regularly scheduled" with respect the definition of"hotel employee" in paragraph D of this section refers to work schedules of an ongoing nature and not for a specific event or to accomplish a single repair or upgrade. G. "Successor hotel employer" means the person who owns, controls, and/or operates a hotel after the change in control. H. "Transfer document" means the purchase agreement or other documents creating a binding arrangement to effect the change in control. Ordinance No. 2776 N.C.S. Page 3 DocuSign Envelope ID:C8712C76-9656-4778-BD26-3356E32BA296 8.60.030. Notification and retention at hotels. A. No less than fifteen (15) calendar days after execution of a transfer document, incumbent hotel employers shall provide to the successor hotel employer a full and accurate list containing the name,home address and telephone number, date of hire, and job category of each hotel employee employed by the incumbent hotel employer. B. The successor hotel employer shall retain for a ninety(90)-day transition employment period all hotel employees that were employed by the incumbent hotel employer. During the ninety (90)-day transition period, the successor hotel employer shall not substantially change a hotel employee's work schedule or work location. C. Successor hotel employers shall ensure that a notice to hotel employees is posted setting forth the rights provided under this chapter and including a copy of any list provided pursuant to paragraph A of this section with the home addresses and phone numbers redacted, and that the notice is also provided to the hotel employees' collective bargaining representative, if any. The notice and list shall be posted in the same location and manner that other statutorily-required notices to employees are posted. D. If at any time during the ninety (90)-day transition period a successor hotel employer determines that fewer hotel employees are required than had been employed by the incumbent hotel employer, the successor hotel employer shall retain the hotel employees by seniority within job classification; provided that, during the ninety (90)-day transition period, successor hotel employers shall maintain a preferential hiring list of those hotel employees not retained who shall be given a right of first refusal to any jobs within their classifications that become available during the ninety(90)-day transition period. E. Except as provided in paragraph D of this section, during the ninety (90)-day transition period, successor hotel employers shall not discharge without cause hotel employees retained pursuant to this section. F. At the end of the ninety(90)-day transition period, successor hotel employers shall complete a written performance evaluation for each hotel employee retained pursuant to this section. If a hotel employee's performance during the ninety(90)-day transition period is satisfactory,the successor hotel employer shall offer the hotel employee continued employment under the terms and conditions established by the successor hotel employer. 8.60.040. Remedies. A. A hotel employee who has been discharged or not retained in violation of this chapter,or the collective bargaining agent of the employee, may bring an action in any superior court of the State of California having jurisdiction over the successor hotel employer charged with violating this chapter. Upon finding a violation of this chapter, the court shall award back pay, including the value of benefits, for each day during which the violation occurred and continues to occur. If the court determines that the successor hotel employer's violations were willful, it shall order treble back pay and reinstatement. The amount of back pay awarded shall be calculated as the greater of either of the following: 1. The average regular rate of pay received by the employee during the last three years of the employee's employment in the same occupation classification multiplied by the average hours worked during the last three years of the employee's employment. 2. The final regular rate of pay received by the employee at the time of change of control of the predecessor hotel, multiplied by the number of hours regularly worked by the employee. Ordinance No. 2776 N.C.S. Page 4 DocuSign Envelope ID:C8712C76-9656-4778-BD26-3356E32BA296 B. The court may issue a preliminary or permanent injunction to enjoin violations of this chapter. C. 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. 8.40.050. Relationship to employment contracts and agreements. This chapter applies to all hotel employees as defined in section 8.60.020 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,or greater protections for hotel employees compared with the protections afforded by this chapter. 8.40.060. 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. SECTION 5.Effective Date. This ordinance shall become effective thirty(30)days after the date of its adoption by the City Council in accordance with Article XII, Section 76A of the Petaluma Charter. 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 and ordered posted/published the 3rd day of May 2021. ADOPTED this 17th day of May 2021 by the following vote: Ayes: Mayor Barrett, Vice Mayor Barnacle, Fischer, Healy, McDonnell, Pocekay Noes: None Abstain: None Absent: None Recused: King rDocuftned by : 604102 648F42 Teresa arre Mayor Ordinance No. 2776 N.C.S. Page 5 DocuSign Envelope ID:C8712C76-9656-4778-BD26-3356E32BA296 ATTEST: APPROVED AS TO FORM: DocuSigned by: DocuSigned by: 18 6 E4492... Ken a ose, CMC, City Clerk Eric Dan y, iffity Attorney Ordinance No. 2776 N.C.S. Page 6