San Diego COVID-19 Building Service and Hotel Worker Recall Ordinance Survives Legal Challenge – Coronavirus (COVID-19)


United States: San Diego COVID-19 Building Service and Hotel Worker Recall Ordinance survives legal challenge

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The Federation of Hotel and Motel Owners and Operators challenged a San Diego ordinance that requires some construction and hospitality service employers to recall workers made redundant due to the pandemic before hiring new employees. In San Diego County Lodging Association v. City of San Diego, No. 20-cv-2151 (September 16, 2021), the United States District Court for the Southern District of California upheld the order, which therefore remains in effect and binding until it expires on March 8, 2022 .

The recall order

In response to the COVID-19 pandemic, on September 8, 2020, San Diego City Council passed an ordinance to help local service and hospitality workers who have been particularly affected by layoffs due to the reduction drastic displacement during the pandemic. The “City of San Diego COVID-19 Building Service and Hotel Worker Recall Ordinance” requires large employers in commercial establishments, hotels and event centers to provide employees made redundant due to the pandemic or seasonal employees who are not scheduled to work due to the pandemic, all available positions they are qualified for before hiring new workers. A laid-off employee is “qualified” for a position if the employee “previously held the same or a similar position” or “is or may be qualified for the position with the same training that would be provided to a new employee hired at. this post .”

The prescription challenge

Two months after the city passed the ordinance, the San Diego County Lodging Association (SDCLA) challenged its legality in a lawsuit against the city of San Diego. The SDCLA has filed a motion for summary judgment to resolve the issues directly. He advanced two legal theories: (1) “The Ordinance violates the contractual clauses of the Constitution of the United States and the Constitution of California” because it “supersedes[es] the right of hotel owners to terminate an employee “at will” with “the option to suspend an employment contract” “and (2)” the ordinance is preempted by section 2922 of the California Labor Code, which codifies employment at will ”, because the ordinance makes employers liable even if they act in accordance with this section of the code.

The court did not find either of the two arguments convincing. Judge William Q. Hayes ruled that the order was not unconstitutional because it had been promulgated and appropriately served a public objective: to ensure that affected employees “enjoy the right to return to their previous employment when the commercial activity will resume in order to promote economic recovery ”. Hayes J. further found that the California Labor Code did not preempt the ordinance because the ordinance was not inconsistent with section 2292 and “the state legislature has expressly declared its intention not to anticipate local recall measures such as the ordinance ”.

Key points to remember

The court dismissed the SDCLA’s summary judgment motion in its entirety, meaning employers of commercial properties, hotels and event centers remain subject to the order’s recall requirements. While the SDCLA’s lawsuit against the order may continue in court, the summary judgment ruling casts doubt on whether the SDCLA will ultimately prevail. In the absence of a successful legal challenge, the order will remain in effect at least until it expires on March 8, 2022.

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