The Los Angeles City Council held an emergency meeting on March 27 in response to the coronavirus (COVID-19) crisis and approved several ordinances, including one pertaining to sick leave and another relating to retail and delivery workers. The council tabled two controversial proposals that would subject employers to various obligations to retain and recall employees during and after the COVID-19 threat period.
One of the approved ordinances mandates that large businesses, not subject to the emergency sick leave and extended family medical leave provisions in the Families First Coronavirus Response Act (FFCRA), provide sick leave to all of their Los Angeles-based employees. Another ordinance provides certain protections for workers at grocery, drug retail, and food delivery platforms. Both of these measures are awaiting signature by the mayor, and will only apply to those employees who work within Los Angeles city limits.
The council debated at length whether the Los Angeles sick leave ordinance should apply to smaller employers, including those with fewer than 50 employees. (Although employers with fewer than 50 employees are subject to the FFCRA emergency sick leave and extended family medical leave mandates, those small employers may apply for an exemption to the application of the FFCRA mandates.)
The City Council passed an ordinance, Article 5-72HH the COVID-19 Supplemental Paid Sick Leave Ordinance (SPLSO), requiring large employers (with 500 or more employees nationwide) to provide their employees working in the city of Los Angeles with two weeks of “Supplemental Paid Sick Leave” for COVID-19-related reasons, in addition to any sick leave required under federal and/or state law. The ordinance contains an urgency clause and shall become effective immediately upon publication.
The SPSLO will require any large employer to provide eligible employees with Supplemental Paid Sick Leave for any of the following reasons, upon oral or written request:
This Supplemental Paid Sick Leave is available to all employees, whether or not full-time, calculated using an employee’s average two-week pay over the period of February 2, 2020, to March 4, 2020, as follows:
Key Details and Takeaways for Employers:
The City Council also voted to approve the Grocery, Drug Retail, and Food Delivery Worker Protection Ordinance (Article 3-7MM). It applies to grocery retail stores, drug retail stores, and food delivery platforms operating within the city of Los Angeles. Food delivery platform workers are presumptively considered employees under this ordinance. The ordinance requires these employers to provide their employees with the following:
Under the ordinance, retaliation is prohibited. Employers may not discharge, reduce compensation, reduce work hours, or otherwise discriminate against any employee for opposing any practice proscribed by this article or for seeking to enforce their rights under this article.
An employer claiming a violation of this article may bring an action in the Superior Court of the State of California and may be awarded
A waiver of these rights shall be deemed contrary to public policy and unenforceable.
Facing heavy opposition from business groups, two controversial measures relating to employment recall and retention were tabled without opposition. The first would effectively give employees seniority rights in being recalled by their employer. The second would essentially cause new employers having purchased or assumed the business of a prior defunct employer to be required to hire the predecessor’s workforce. However, as these measures relate to how businesses may rehire workers whenever the COVID-19 crisis subsides, they will likely come back to the council’s consideration. Both present some pre-emption issues as drafted currently.
Right of Recall
The first of the tabled measures was titled COVID-19 Right of Recall (Article 4-72J-B), and would have required employers to offer to any laid-off worker any position that becomes available after the effective date of the ordinance, relating to layoffs retroactively to March 4, 2020. If it had passed, the ordinance would have
Additionally, the measure would have allowed a laid-off worker to bring an action against an employer for an alleged violation of the ordinance, with hiring and reinstatement rights, actual damages, and punitive damages.
Various councilmembers expressed concern about the lack of definition in the proposed ordinance, including the provisions on training, seniority, retroactivity, and the burden on employers to disprove a claim when an employee had been terminated for disciplinary reasons after March 4, 2020. Objections were also expressed to the punitive damages provisionRight of Retention
The other tabled measure was the Worker Retention Ordinance (Article 4-72J-B), relating to businesses that go through a change in ownership. It would have required successor employers to retain previous employees for a minimum of 90 days and to give priority to laid-off employees on a “preferred” employee list for six months from which to hire. Both this and the recall ordinances would not have applied to managers and supervisors.
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Harry I. Johnson, III