©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 261 Employers must give each employee a written description of any applicable quota and the potential adverse employment actions that could result from failing to meet the quota.496 Employers must not enforce quotas to the extent that enforcement would “prevent[] compliance with meal or rest periods, use of bathroom facilities, including reasonable travel time to and from bathroom facilities, or occupational health and safety laws.”497 Any employee actions to comply with occupational health and safety laws must be considered time on task and productive time for purposes of any quota or monitoring system.498 Employees who believe a quota has violated their rights are entitled to request and receive a written description of each applicable quota and a copy of the most recent 90 days of the employee’s own personal work speed data.499 Any adverse action against an employee taken within 90 days of that employee asserting quota-related rights creates a rebuttable presumption of unlawful retaliation against the employee.500 Violations of the law can be pursued by the DLSE and the employees themselves can sue for injuncitive relief and be awarded attorney fees if they prevail.501 7.23 Worker Retention and Staffing Requirements 7.23.1 Grocery worker retention Some California cities, including Los Angeles,502 Santa Monica,503 San Francisco,504 and Gardena505 have “worker retention” ordinances that require purchasers of major supermarkets to retain certain members of the pre-existing workforce for at least 90 days, subject only to the employer’s right to fire a worker for cause. Other ordinances of this kind similarly protect service workers in the event that one city contractor replaces another. In 2008, the California Grocers Association obtained an injunction against enforcement of the Los Angeles grocery worker retention ordinance, and in 2009 the Court of Appeal, in a 2-1 decision, upheld the injunction, ruling that the ordinance is unconstitutional because it conflicts with the California Retail Food Code and is preempted by the National Labor Relations Act.506 But then the California Supreme Court held otherwise, reversing the Court of Appeal to rule that the workerretention ordinance was not preempted by the California Retail Food Code or the National Labor Relations Act and that the Retail Food Code did not violate equal protection.507 The U.S. Supreme Court declined to hear the California Grocers Association’s request to review the case.508 The California Legislature has followed the municipalities’ lead. As of 2016, a “successor grocery employer” must retain current grocery workers for 90 days after the “change in control” of a grocery store. 509 At the end of the 90 days, the new employer must prepare a written performance review for each worker and “consider offering” continued employment if the worker has performed satisfactorily.510 Notably, this statewide law does not preempt any city or county ordinance that provides greater protection to eligible grocery workers.511 7.23.2 “Right to Recall” laws Shortly after the Covid-19 pandemic hit in early 2020, several California cities passed so-called “right to recall” laws. These laws require certain employers to give priority in hiring to workers laid off because of the pandemic. On April 16, 2021, the State of California passed its own right to recall law.512 The statewide law applies to hotels, private clubs, event centers, airport hospitality operations, airport service providers, and entities that provide building services (i.e., janitorial, maintenance, or security services) to office, retail, or commercial buildings.513 These employers must first offer any new positions to workers who were
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