California Court of Appeal Provides Potential Guidance for Right of Recall Ordinances
Before 2020, the City of Santa Monica was one of a handful of cities that had a right of recall ordinance. However, since the beginning of the pandemic, many local governments enacted right to recall ordinances to return displaced workers to their prior positions. Recently, the state joined these local governments, passing SB 93 relating to the right of recall for the hospitality industry.
As more employers have obligations under such regulations, the California Court of Appeal has timely issued a published opinion regarding Santa Monica’s right of recall ordinance, which the Court of Appeal notes is similar to the state and local right of recall ordinances currently in effect.
In the case, Bruni v. The Edward Thomas Hospitality Corporation, the plaintiff was a restaurant server who was laid off after about four months working for the employer. He brought a claim under Santa Monica’s right of recall ordinance, which provided that laid-off employees who had been employed for six months or more had the right to be rehired under certain circumstances. The plaintiff had previously worked with the employer for 10 months but had voluntarily separated. The plaintiff argued that his prior 10 months of employment should count for purposes of the ordinance.
However, the Court of Appeal held that the purpose of the ordinance was “to protect employees who were involuntarily laid off due to economic circumstances—not to protect employees who quit for personal reasons.” Based on the purpose of the ordinance, the Court of Appeal held that the plaintiff failed to state a cause of action under the recall ordinance. However, the Court of Appeal stated in its opinion it was not deciding the issue of whether discrete periods of employment may ever be aggregated to satisfy the length of service requirement. The Court was only concluding that employment that was ended by a voluntary resignation cannot be aggregated with a later period of employment that ended in a layoff to meet the period of employment requirement.
While not definitively applicable to the state or local ordinances, the Court of Appeal’s decision provides persuasive guidance of the calculation of employment periods for the purpose of right of recall requirements around the state.