A Santa Monica, Calif., hotel that refused to rehire a restaurant server after he had been laid off for economic reasons did not violate a local recall ordinance requiring laid-off employees to be rehired in certain circumstances, a California appeals court ruled.
In addition, the appellate court held that the server could not go forward with his claim that the hotel's failure to rehire him violated public policy, because such a claim must be based on a violation of a constitutional or statutory provision and not on an alleged violation of a municipal ordinance.
After the economic downturn following the Sept. 11, 2001, terrorist attacks, the city of Santa Monica adopted the recall ordinance, which established a preference for laid-off employees and gave them the right to be rehired in specified circumstances.
The ordinance defines the term "laid-off employee" as an employee who worked for the employer for six months or more and whose most recent separation from active service was due to lack of business, a reduction in force or another, economic, nondisciplinary reason.
The server worked part time for the hotel from about June 2017 to September 2017, and full time after that until April 2018, when he voluntarily resigned due to scheduling difficulties.
In July 2018, the hotel hired the server to work part time. Less than four months later, on Oct. 31, 2018, he was laid off because the company was eliminating all part-time positions in its food and beverage operations. Therefore, the server was laid off by the hotel for an economic, nondisciplinary reason.
At least two server positions became available at the hotel after the server was laid off, and he was qualified for those positions. Taking into account the server's earlier employment with the hotel that ended with his voluntary resignation in April 2018, at the time of the layoff the server had been an employee of the hotel for more than six months. However, after he was laid off, the hotel did not offer him employment.
The server sued, claiming a violation of the ordinance and also claiming that the hotel's failure to rehire him violated public policy. The trial court dismissed the lawsuit before trial, and the server appealed.
The appellate court affirmed the dismissal of the lawsuit.
Calculating Eligibility
The server claimed that his two periods of employment should be aggregated, and that therefore, he would be entitled to be rehired under the ordinance.
The court rejected this claim, noting that the clear intent of the recall ordinance was to protect workers who were involuntarily laid off due to economic circumstances beyond their control. The recall ordinance, the court said, was not intended to protect those who voluntarily quit; such workers were not within the class of persons that the recall ordinance was intended to protect. So the six-month eligibility calculation excluded his previous period of employment that ended with a voluntary resignation, the court concluded.
No Public Policy Claim
The court also rejected the server's second claim that the hotel's failure to rehire him violated the public policy expressed in the recall ordinance of "promoting a stable workforce in the Santa Monica community."
First of all, the court said, because the server failed to show his eligibility for recall under the ordinance, he could not state a public policy claim based on an alleged violation of the ordinance.
Furthermore, a municipal ordinance cannot serve as the basis for such a claim. The California Supreme Court has said that public policy claims must be based on constitutional or statutory provisions. This strikes a balance among the interests of employers, employees and the public, the appeals court explained. The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes. There is no such requirement regarding municipal ordinances and no support for basing a public policy claim on the alleged violation of such an ordinance, the court concluded.
Bruni v. The Edward Thomas Hospitality Corp., Calif. Ct. App., No. B305689 (May 14, 2021).
Professional Pointer: This case concerned a local recall ordinance enacted in response to the economic downturn following the Sept. 11, 2001, terrorist attacks. Additionally, in response to the COVID-19 pandemic, many local jurisdictions in California enacted new ordinances giving laid-off employees the right to be recalled in certain circumstances. This case shows that those ordinances cannot be used to support public policy claims.
Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.