October 28, 2020

Volume X, Number 302

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October 26, 2020

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The City of San Diego Enacts COVID-19 Related Worker Recall and Retention Ordinances

The City of San Diego enacted emergency ordinances requiring fair employment practices in response to job and economic insecurity due to the COVID-19 pandemic and stay-at-home directives.  The City of San Diego COVID-19 Building Service and Hotel Worker Recall Ordinance (“Recall Ordinance”) and the City of San Diego COVID-19 Worker Retention Ordinance (“Retention Ordinance”) went into effect immediately upon their passage on September 8, 2020. The Ordinances apply to three categories of businesses and employers that the City found have been especially impacted by the COVID-19 pandemic:

  1. Commercial Property Employer: defined by ordinance as an owner-operator, manager, or lessee, including contractor, subcontractor, or sublessee, of a non-residential property located within the geographical boundaries of the City of San Diego that employers 25 or more janitorial, maintenance, or security service employees. Only the janitorial, maintenance, and security service employees who perform work for a Commercial Property business or employer are covered by the Ordinance.

  2. Event Center Employer: defined by ordinance as an owner, operator, or manager or a privately-owned structure of more than 50,000 square feet or 5,000 seats that is used for the purpose of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term “event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the “event center’s” purpose, including food preparation facilities, ushering services, ticket taking services, concessions, retail stores, restaurants, bars, and structured parking facilities, but excludes governmental entities.

  3. Hotel Employer: defined by ordinance as an owner, operator, or manager of a residential building located within the geographical boundaries of the City of San Diego with at least 200 guest rooms that provide temporary lodging in the form of overnight accommodations to transient patrons, and may provide additional services, such as conferences and meeting rooms, restaurants, bars, or recreation facilities available to guests or the general public. A “hotel employer” also includes the owner, operator, manager, or lessee of any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services to the building.

The Recall Ordinance requires a covered employer to offer positions that become available on or after September 8, 2020, to qualified employees who were laid off on or after March 4, 2020. A laid-off employee is deemed qualified and must be offered a position – in the order of priority below – if the employee:

  1. Held the same or similar position at the same location when the employee was laid off; or

  2. Is or can be qualified for the position with the same training that would be provided to a new worker hired into the position.

If more than one laid-off employee is entitled to preference for a position, the employer must offer the position to the laid-off employee with the greatest length of service in the position and then to the laid-off employee with the greatest length of service with the employer at the employment site.

Under the Retention Ordinance, when a covered business experiences a Change in Control as defined by the Ordinance, covered employees are given preference in hiring by the successor business employer for a period of 6 months and must be retained for no less than 90 days, provided the successor employer continues operating for 90 days unless there is cause for termination (which the Ordinance does not define). Once the 90 days have elapsed, the successor employer must perform a written performance evaluation for each eligible employee retained pursuant to the Retention Ordinance.

The Ordinances will remain in effect for six months. However, they could be repealed by January 1, 2021, depending on whether Gov. Gavin Newsom signs pending Assembly Bill 3216 into law, which would provide similar worker protections statewide.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 265
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About this Author

Kelly D. Gemelli, Jackson Lewis, non-solicitation agreements lawyer, Retaliation litigation attorney
Of Counsel

Kelly (Wood) Gemelli is Of Counsel with the San Diego, California, office of Jackson Lewis P.C. Ms. Gemelli represents employers in all areas of employment law and has litigated a broad range of employment matters.

Ms. Gemelli's experience includes:

  • Discrimination and harassment suits on the basis of age, race, national origin, gender, and disability
  • Leave issues
  • Non-competition and non-solicitation agreements
  • ...
619-573-4916
Arcelia Magaña Employment Attorney
Associate

Arcelia N. Magaña is an Associate in the San Diego, California, office of Jackson Lewis P.C. Her practice focuses on representing and counseling employers in workplace law matters. She advises clients on ongoing labor and employment policy developments and prepares clients for compliance efforts. 

Ms. Magaña’s legal career has focused almost exclusively in labor and employment law. She has extensive experience in representing and advising clients in various labor and employment issues, including those within wage and hour, DFEH, and PAGA. 

Ms. Magaña dedicates much of her free time to advancing Latinos academically and professionally through her various organizational memberships. Ms. Magaña enjoys salsa dancing, running, reading, and spending time with her nieces and nephews. 

Honors and Recognitions

  • Legal Aid Society of San Diego, Inc., Outstanding Service Award (2015)
  • Wiley W. Manuel Certificate for Pro Bono Legal Service (2015, 2016)

Professional Associations and Activities

  • San Diego County Bar Association, Member
  • San Diego La Raza Lawyers Association, Board Member

Pro Bono and Community Involvement

  • California Western Community Law Project, Volunteer Attorney
  • City of Escondido – Personnel Board of Review, Former Board Member
  • San Diego Volunteer Lawyers Program, Volunteer Attorney
  • UC Berkeley Chicanx/Latinx Alumni Association of San Diego, Co-Chair
  • UC Berkeley Chicanx/Latinx Alumni Association (National), Board Member
619-573-4900
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