Over the past few years, cities have started to implement workplace regulation, an area previously reserved to federal and state governments. The hotel industry, which often is one of the primary drivers of a local economy, has been a particular focus.
One of the first trends that developed in this area was the push for “panic buttons” for housekeeping staff. Hotel panic button laws currently are in effect in such locations as Washington State, Chicago, Miami Beach, and Long Beach, California.
City governments, including Santa Monica, California, have regulated the workload of housekeeping staff. In Oakland, California, voters adopted measure Z, which requires a “humane workload” and calls for panic buttons, as well.
More recently, as a result of the shutdown of the hospitality industry in the wake of the COVID-19 pandemic and its subsequent gradual reopening, the subject of employee “right to recall” in order of seniority came to the fore. Los Angeles and Long Beach led the way, with several more cities in California, and eventually across the country, passing their own right-to-recall laws. States have also joined in, with right to recall adopted in California, Nevada and Connecticut. It is notable that these right-to-recall laws typically apply to industries other than just hospitality, including airports, event centers, and janitorial, maintenance and security services at commercial buildings.
Now the city of West Hollywood, California, has entered the fray, passing a sweeping hotel worker ordinance that gathers together all of these concepts, and more, into a single law. The law requires panic buttons, regulates workload and provides for a right of recall based on seniority. But the law goes further, providing for job protection in the event of a change of ownership control and creating a city-certified “Public Housekeeping Training Organization” to provide training to hotel employees. Each of these general areas of coverage is summarized below. But first, understanding a few definitions under the new law is in order.
A “hotel” for purposes of the ordinance is a commercial facility with guest rooms or suites, provided with or without meals or kitchen facilities, rented to the general public for overnight or other lodging. A hotel may also include swimming pools, tennis courts, indoor athletic facilities, retail stores and meeting facilities associated with the hotel. Private clubs with guest rooms are also included.
A “hotel worker” is any person who is employed by a hotel employer to provide services at a hotel. Managerial, supervisory and confidential employees are excluded.
Personal Security Devices
The ordinance requires that a hotel employer provide a personal security device to each hotel worker assigned to work alone, in a guest room or restroom facility. Employees may activate the device whenever they believe that violent or threatening conduct or an emergency is occurring in their presence. The law also protects employees who cease work and leave the immediate area of danger. If an employer wishes to discipline an employee for making a false claim of an emergency, it must have clear and convincing evidence to support that action.
Hotels are required to assign a security guard, manager, or supervisor to provide immediate on-scene assistance if a personal security device is activated. In the event of an emergency, a hotel employer must immediately allow the employee sufficient paid time off to report the matter to a law enforcement agency, and sufficient paid time to consult with a counselor or advisor of the hotel worker’s choice.
In addition, for employees who have been subject to violent or threatening conduct, upon request, the employer must provide reasonable accommodations to the employee. Such accommodations may include a modified work schedule, reassignment to a vacant position, or other reasonable adjustment to job structure, workplace facility, or work requirements.
Hotels are also required to post notices, provide training, and keep records relating to personal security devices.
These personal security device provisions of the ordinance become effective January 1, 2022.
The ordinance provides for premium pay based on the number of square feet that a hotel employee cleans. For hotels with fewer than 40 guest rooms, if an employee is required to clean more than 4,000 square feet of floor space in an eight-hour workday, they must be paid two times their regular rate of pay for all hours worked that day. For hotels with 40 or more guest rooms, the measurement drops to 3,500 square feet. The law includes specific square foot allocations for specific types of rooms.
The law also provides that, except in an emergency, an employer may not require or permit an employee to work more than 10 hours in a workday unless the employee consents in writing to do so.
The workload provisions of the ordinance become effective January 1, 2022.
Right of Recall
The West Hollywood ordinance draws upon several concepts from other right-of-recall laws, and introduces some additional ideas.
Employees laid off due to the pandemic have the right to be recalled, in order of seniority, to a newly established position for which they are qualified. In order to be qualified, the employee must have performed the same or a similar job for the employer in the past, or can be qualified to perform the job with the same training that would be provided to a new employee.
Employees have 10 days to accept or reject an offer. If an employee is not recalled, while another person is hired, the employee must be given written notice of the reasons for not being selected.
Employers must provide notice of recall rights to all previously laid off employees by September 30, 2021. For future layoffs, notice must be provided at the time of the reduction in force. The ordinance includes new recordkeeping requirements, and stipulates that recall obligations “follow the property”—i.e., are imposed on future owners or managers of the hotel.
The right-to-recall provisions of the ordinance become effective September 1, 2021.
Change in Control
The West Hollywood ordinance introduces to the hospitality industry a concept previously applied in California in the janitorial industry—the right to continue to work at the same property, even when ownership changes.
No later than five days after a sale or other disposition of the assets of a hotel, or any other transaction that causes the identity of the hotel employer to change, an employer must post a notice describing the change in control, which must remain posted for six months.
Within 15 days of a change in control, the prior employer must provide the new employer with a list of eligible hotel workers. The new employer is required to hire employees from this list for the first 90 days that the hotel is open for business under the new employer. Any such offer must remain open for at least 10 business days. Employment must be offered for a minimum of 90 days, with an exception. The new employer need not retain an employee of the predecessor if the new employer has “reasonable and substantiated cause” not to retain based on the employee’s individual performance or conduct while employed by the prior employer.
If the new employer decides to operate with fewer employees, it must recall employees of the prior employer, in order of seniority.
At the end of the first 90 days of operation, a new employer must provide each employee who was recalled from the eligibility list a written performance evaluation. If the hotel worker’s performance was satisfactory, the new employer “shall consider” offering the employee continued employment.
An employee hired from the list of employees of the prior employer may not be “discharged except for good cause.” It is not entirely clear from the ordinance whether this obligation applies only during the first 90 days of operation of the new hotel, or whether it continues indefinitely.
The change in control provisions of the ordinance become effective September 1, 2022.
Public Housekeeping Training Organization
By far the most novel part of the West Hollywood ordinance is the creation of a city-certified “Public Housekeeping Training Organization.” The ordinance specifies the requirement to obtain certification. The Organization is then to offer a “Public Housekeeping Training Program” of no less than six hours in duration, including discussion of hotel employee rights and employer obligations under the ordinance itself. Trainers must be “culturally competent” and fluent in the languages that employees understand. At the end of the training, a test is given, and a certificate issued to participants. Employers may not retain for more than 120 days a room attendant who does not have the training certificate.
Hotel employers are required to contract with a certified Public Housekeeping Training Organization for such training, at least once per year. The employer must certify to the city, in writing, that the training was completed.
The Public Housekeeping Training provisions of the ordinance become effective July 1, 2022.
Financial Hardship Waiver
Another novel element of the law is a “limited waiver” for cases of financial hardship. In order to qualify, the employer must demonstrate to the city manager that compliance with the ordinance would require the employer to reduce its workforce by more than 20 percent, or curtail employees’ work hours by more than 30 percent, in order to avoid bankruptcy. The city manager is required to review the employer’s financial condition, at the employer’s expense, before granting such a waiver.
Prior to applying for such a waiver, the employer must provide written notice of the request to employees. Notice must also be provided of the city manager’s decision in response to the request.
The ordinance requires that employees be notified of their rights under the new law. Retaliation for exercising protected rights is prohibited, and a rebuttable presumption exists that any adverse employment action taken against an employee within 90 days of the exercise of rights under the law was taken in retaliation for the exercise of such rights. Employee rights to recall, workload pay, and retention in the event of a sale may be waived in a collective bargaining agreement.
Aggrieved employees have a private right of action to enforce rights under the ordinance, and penalties can be assessed for violations—$100 per aggrieved person per day. In actions to enforce the law, the prevailing party is entitled to an award of attorneys’ fees.
While the ordinance initially notes that “the City of West Hollywood has studied local legislation that has been adopted in other jurisdictions,” unfortunately, the ordinance does not contain a “right to cure” provision. These provisions, found in the Los Angeles and Long Beach right-to-recall ordinances, require that an employee give notice to the employer of a potential claim, with a period of time allowed to correct any errors, before the employee may file a claim. As we have previously noted, business leaders have applauded this approach as a way to avoid unnecessary litigation.
The West Hollywood ordinance is part of a larger trend—the “municipalization” of employment law. Business owners across the United States should expect to see more cities coming up with creative new ways to regulate the workplace.
For employers operating hotels in West Hollywood, prompt action is suggested to become familiar with the obligations imposed by the new ordinance and prepare for compliance. As the new law overlaps with other existing employer obligations in California, employers should consult counsel in light of the many questions likely to arise.