CHLA Lodging News May/June 2020

10 CALIFORNIA LODGING NEWS DURING RECENT MONTHS, OUR COUNTRY has been acutely focused on flattening the COVID-19 curve. As we look toward life after the worst of the COVID-19 pandemic, business recovery will be paramount and on everyone’s mind. In fact, Governor Newsom recently announced his four-step plan for gradually reopening of California businesses. Businesses with a higher risk for the spread of COVID-19, such as beauty salons, entertainment venues or sporting events, and likely hospitality businesses, would be allowed to reopen with adaptations to adhere to social distancing during step three. Hotels will now need to turn their focus towards assessing business operations, recalling workers, and ensuring a safe workplace. With these next steps comes a brand-new set of labor and employment challenges for hotels looking to resume operations. Who Do I Bring Back and How? Hiring/Recalling Considerations Hiring or recalling furloughed or previously laid off workers, may seem easy. In reality, it presents multiple legal challenges. Discrimination and Negligence Concerns. Hotels must consider objective, non- discriminatory criteria for selecting those who will be brought back to work as failing to do so could give rise to discrimination claims. Hotels should also be mindful of potential negligence claims if employees are brought back too soon or into unsafe work conditions. Logistics. Beyond selecting workers to recall, hotels should consider the logistics of doing so. For example, will all identified workers be brought back at full time, or will these workers ramp up from 20 hours to 40 hours per week over a certain time period? Advance Notice of Schedules. Hotels operating in San Francisco or Emeryville must comply with local predictive scheduling ordinances mandating that schedules be provided two weeks in advance with a good faith written estimate of an employee’s work schedule. Workers Refusing to Return. While many workers may be excited to be invited back to work, hotels should be prepared to respond to employees who refuse to come back due to continued COVID-19 concerns. While employees are only entitled to refuse to work if they believe they are in imminent danger, hotels may want to consider accommodating these fears as taking adverse actions in light of a worker’s expressed fear could give rise to a retaliation claim. Wage and Hour Concerns. Hiring/recalling workers can also give rise to potential wage- and-hour claims. Hotels should provide notice to employees regarding any changes in pay, including a new wage notice pursuant to Labor Code section 2810.5. Similarly, hotels should communicate updates concerning bonus programs that have been suspended, amended, or resumed to employees. If bonus payments are made, hotels need to be mindful of their effect on a worker’s regular rate and whether the bonus must be accounted in overtime calculations. Hiring/recalling a worker may necessitate a new or amended pay plan for employees whose rate of pay may have changed. Pay equity issues may arise when rehiring workers as well, so special attention should be given to pay adjustments for workers Employment Issues Facing Hotels as They Reopen By Miranda R. Watkins, Attorney at Law, Fisher Phillips LLP BEYOND THE CURVE