©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 261 7.23 Worker Retention and Staffing Requirements 7.23.1 Grocery worker retention Some California cities, including Los Angeles,528 Santa Monica,529 San Francisco,530 and Gardena531 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.532 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.533 The U.S. Supreme Court declined to hear the California Grocers Association’s request to review the case.534 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.535 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.536 Notably, this statewide law does not preempt any city or county ordinance that provides greater protection to eligible grocery workers.537 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.538 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.539 These employers must first offer any new positions to workers who were terminated because of a nondisciplinary reason related to the pandemic (e.g., because of a slowdown in business).540 To be qualified for rehire, the worker must have (1) worked for the employer for at least six months in the twelve months prior to January 1, 2020 for at least two hours a week, and (2) have held the same or similar position when they were laid off.541 The obligation to offer to rehire qualified workers can survive business ownership changes, restructuring, and relocation, if the business conducts the same or similar operations using substantially the same assets.542 Although the law does not give allegedly aggrieved workers the right to sue in court, it authorizes the Labor Commissioner to investigate and seek substantial damages. For example, in March 2022, the Labor Commissioner cited a Southern California resort for $3.3 million in damages and penalties for not rehiring hotel workers in compliance with California’s right-of-recall law.543 The law’s provisions can be waived in a collective bargaining agreement, though the waiver must be express and in clear terms. The law will expire on December 31, 2024.544 Similar, but not identical, right to recall laws have been passed by several California cities, including Oakland,545 Santa Clara,546 Monterey County,547 Los Angeles,548 San Diego,549 Long Beach,550 Santa Monica,551 and Glendale.552
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