Almost two weeks after the City of Los Angeles passed Worker Recall and Retention Ordinances, the County passed its own, similar versions. The County’s version is almost identical to the City’s, except that the County’s Ordinances only apply to Commercial Property Owners and Hotel Employers located in unincorporated areas within the County’s geographical boundaries.

Covered Employers.  The Ordinances apply to “Commercial Property Owners” and “Hotel Employers” located in unincorporated areas within the County’s geographic boundaries. Commercial Property Owners are covered by the Ordinance if they employ 25 or more janitorial, maintenance, or security service workers. Hotel Employers are covered if they either (1) contain 50 or more guestrooms; or (2) earned gross receipts over $5 million in 2019 (includes restaurants located on premises).

Employees Eligible for Recall.  Workers are eligible for recall if they satisfy each of the following:

  • Performed at least 2 hours of work within the geographic boundaries of Los Angeles County in a particular week;

  • Length of service with employer of 6 or more months;

  • Most recent separation from active employment occurred on or after March 4, 2020 as a result of lack of business, reduction in workforce, or other economic, non-disciplinary reasons; and

  • For a Commercial Property Employer, the employee must be a janitorial, maintenance, or security service worker. For a Hotel Employer, the employee must be a non-management service worker such as a room attendant, front desk agent, bell person, food service employee and the like.

There is a rebuttable presumption that the worker was terminated for non-disciplinary reasons if termination of employment occurred on or after March 4, 2020.

Job Offer.  The employer must offer eligible individuals any position that becomes available after May 12, 2020 for which the individual is qualified. A worker is qualified if (1) he or she held the same or similar position at the same worksite at the time of most recent separation; or (2) he or she is or can be qualified for the position with the same training that would be provided to a newly hired employee.

Order of Recall.  Recall priority is as follows: (1) the individual with the greatest length of service or similar position at the same site of employment; and (2) the individual with the greatest length of service with the employer at the site of employment. The individual has 5 business days to accept or decline the offer.

Worker Retention.  The Worker Retention ordinance applies where there is a sale or change of control of a business. The chief proponents of this ordinance were area unions who represent workers in hotels and commercial buildings. If the seller is unionized, these rules virtually guarantee that the buyer will become union by operation of law. To do so, the ordinance creates obligations on two parties: (1) Incumbent Business Employer (i.e., person who sells the business) and (2) Successor Business Employer (i.e., person who purchases the business).

Employees Eligible for Retention.  Individuals who satisfy all of the following are eligible for retention:

  • Length of service with incumbent for 6 months;

  • Business subject to change in control is the worker’s primary place of employment;

  • Employed or contracted to perform work directly by the incumbent employer or by a person who has contracted with the incumbent employer to perform services;

  • Worked for incumbent employer as of March 1, 2020, prior to execution of document creating change in control;

  • Not a managerial, supervisory, or confidential employee; and

  • Not hired through a temporary staffing agency.

Incumbent Business Obligations.  Within 15 days of execution of the document effecting a change in control, the incumbent must provide the successor with a list of names, addresses, dates of hire, and occupation classifications of each eligible worker. Moreover, the incumbent must post a written notice of change in control in a conspicuous place within 5 business days of change in control with the name and contact information of incumbent and successor and the effective date of change in control.

Successor Business Obligations.  The successor business must hire from the list of eligible employees from the date of change in control (i.e., execution of transfer document) until 6 months after the business is open to the public under the successor. The workers must be retained for 90 days and may only be discharged within that period for cause. If the workers who are hired belonged to a union, then in most cases the buyer will become union by operation of law.

At the end of the 90 day period, the successor must perform a written performance evaluation for each retained worker. If a retained worker’s performance is satisfactory during the 90 days, then the successor must consider offering continued employment. The successor must retain both a written verification of employment offer and a record of the written performance evaluations for 3 years. Moreover, the successor must post a notice containing the same information as that of the incumbent in a conspicuous place during any closure and for 6 months after the business is open to the public.

We will continue to keep you updated on any major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at .

Richard S. Rosenberg
Katherine A. Hren
Charles Foster
Ballard Rosenberg Golper & Savitt, LLP