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AN ORDINANCE AMENDING TITLE VIII, BUSINESS AND OCCUPATIONS, OF THE REVISED GENERAL ORDINANCES OF THE CITY OF NEWARK, NEW JERSEY, 2000, AS AMENDED AND SUPPLEMENTED TO ADD A NEW CHAPTER 36 ENTITLED, TRAVEL SERVICE AND BUILDING SERVICE WORKER RETENTION.
No Action Taken 8-c (s) 081721
Deferred 6PSF-a 090121
Deferred 6PSF-a 091521
Deferred 6PSF-d 100621
Deferred 6PSF-b 102021
Deferred 6PSF-a 110421
Deferred 6PSF-a 111521
Deferred 6PSF-a 120221
Deferred 6PSF-a 121521
Deferred 6PSF-a 010522
Deferred 6PSF-a 012022
Maintained on Public Hearing for 2/16/22
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WHEREAS, changes in ownership or operation of travel-related and building services industries can lead to the displacement of qualified, experienced workforces that are critical to ensuring positive visitor experiences and a vibrant economy; and
WHEREAS, high turnover rates are disruptive of the employees’ and their families’ physical, mental, and economic health, as well as their integration into their community; and
WHEREAS, the City of Newark has previously recognized the importance of ensuring that existing hotel workers are retained when a hotel undergoes a change in ownership or operation; and
WHEREAS, extending the same protection to other travel-related industries that operate in the City of Newark, and to building-and airport services contractors, is particularly critical as travel-related and building-services industries recover from the effects of the COVID-19 pandemic; and
WHEREAS, pursuant to N.J.S.A. 40:48-2, the City of Newark may act to preserve the public health, safety and welfare of its inhabitants.
NOW, THEREFORE, BE IT ORDAINED BY THE MUNICIPAL COUNCIL OF THE CITY OF NEWARK, NEW JERSEY, THAT:
SECTION 1. Title VIII of the Revised General Ordinances of the City of Newark, New Jersey, 2000, as amended and supplemented, entitled “Business and Occupations” is hereby amended and supplemented by adding a new Chapter entitled, “Travel Service and Building Service Worker Retention Requirements Upon Transfer of Ownership” that includes the following underlined and bold text:
1.1 DEFINITIONS.
“Airport” means Newark Liberty International Airport.
“Airport Services” shall mean any service provided at the Airport including security related, cleaning related, in-terminal and passenger handling and airport lounge services on the premises of Newark Liberty International Airport within the boundaries of the City,
“Business” means an Airport Business, a Business owning or operating a Property Services Location an Event Center Business, or a Hotel Business.
“Change in Control” shall mean any sale, assignment, transfer, contribution, or other disposition of all or substantially all of the assets used in the operation of a Business, or a discrete portion of a Business that continues to operate as the same type of Business of the Incumbent Employer, or any Person who controls the Incumbent Employer.
“City” means the City of Newark, New Jersey.
“Contractor Transition” shall mean the termination of a contract between a Business and an Incumbent Employer for work performed by Covered Employees or the termination of Covered Employees as a result of the Business hiring a Successor Employer.
“Covered Employee” shall mean an employee of an Employer who works within the City’s boundaries and provides airport services, property services, or travel related food services , and (1) who has a Length of Service with the Incumbent Employer for six months or more; (2) whose place of employment is a Business subject to a Change in Control or Contractor Transition ; (3) who is employed or contracted to perform work functions directly by the Incumbent Employer, or by a Person who has contracted with the Incumbent Employer to provide services at the Business subject to the Change in Control or Contractor Transition; and (4) who worked for the Incumbent Employer prior to the execution of the Transfer Document if a Change of Control occurs. “Covered Employee” does not include a professional, managerial, supervisory, or confidential employee.
“Covered Location” shall mean an Event Center, Travel Related Food Service Operation, Property Service Operation, or the Airport.
“Employer” shall mean any Person who employs Covered Employees at a Covered Location within the City’s boundaries.
“Event Center” shall mean a publicly or privately owned structure in the City of more than 50,000 square feet or 5,000 seats that is used for the purposes of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term “Event Center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the Event Center’s purpose, including food preparation facilities, concessions, retail stores, bars, and structured parking facilities.
“Incumbent Employer” shall mean an Employer who employed Covered Employees prior to a Change in Control or Contractor Transition, excluding an airline.
“Length of Service” means the total of all periods of time during which a Covered Employee has been in active service to an employer, including periods of time when the Covered Employee was on leave or vacation.
“Person” shall mean an individual, corporation, partnership, limited partnership, limited liability partnership, limited liability company, business trust, estate, trust, association, joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign.
“Property Service” shall mean any cleaning or routine building maintenance work, including, but not limited to sweeping, vacuuming, floor cleaning, cleaning of rest rooms, collecting refuse or trash, window cleaning, securing, patrolling, or other work in connection with the care or securing of an existing building, including services typically provided by a door-attendant or concierge in a residential building, or food cafeteria services.
“Property Service Location” shall mean a building occupying more than 100,000 sq. feet or a residential building or complex with more than fifty (50) units within the City.
“Successor Employer” shall mean an Employer who employs Covered Employees after a Change in Control or Contractor Transition.
“Transfer Document” means the purchase agreement or other document creating a binding arrangement to effect the Change in Control.
“Travel-Related Food Service” shall mean the preparation and delivery of prepared and packaged food and beverages to an air carrier at the Airport for inflight consumption.
“Travel-Related Food Service Operation” shall mean a facility or operation performing Travel-Related Food Service that is located within the City and employs at least twenty-five (25) individuals.
1.2 WORKER RETENTION.
a. At least ten (10) days prior to a Change in Control or Contractor Transition, the Incumbent Employer shall provide the Successor Employer a complete and accurate list of Covered Employees, showing name, address, telephone number, classification, date of hire, and wage rate and shall provide a copy to the collective bargaining representative of the Covered Employees, if any.
b. At least thirty (30) days prior to the Change in Control or Contractor Transition or immediately upon receiving notice, the Incumbent Employer shall notify each Covered Employee and their collective bargaining representative, if any, of the proposed transfer and of their rights under this Ordinance. The Successor Employer shall fill its job positions by first hiring from the pool of Covered Employees who had been employed by the Incumbent Employer, in accordance with seniority in the applicable classification.
c. If at any time the Successor Employer, determines that fewer Covered Employees are required to perform services than had been performing such services by the Incumbent Employer, the Successor Employer shall retain the Covered Employees by seniority within job classification; provided, that during the ninety (90)-day transition period, the Successor Employer shall maintain a preferential hiring list of those Covered Employees not retained at the buildings who shall be given a right of first refusal to any jobs within their classifications that become available during that period.
d. The Successor Employer shall retain and not discharge a Covered Employee without just cause during the Covered Employee’s initial ninety (90)-day work period of employment following the Change in Control or Contractor Transition.
1.3 NOTICE OF CHANGE OF CONTROL OR CONTRACTOR TRANSITION.
The Incumbent Employer shall post written notice of the Change in Control or Contractor Transition at the location of the affected Business within five business days following the execution of the Transfer Document or within five business days after it has notice of a Contractor Transition as applicable. Notice shall remain posted during any closure of the Business and for six months after the Business is open to the public under the Successor Employer.
Notice shall include, but not be limited to, the name of the Incumbent Employer and its contact information, the name of the Successor Employer and its contact information, and the effective date of the Change in Control or Contractor Transition.
Notice shall be posted in a conspicuous place at the Business visible to Covered Employees, other employees, and applicants for employment.
1.4. RETALIATORY ACTION PROHIBITED.
No Incumbent or Successor Employer employing a Covered Employee shall discharge, reduce in compensation, or otherwise discriminate against any Covered Employee for opposing any practice proscribed by this ordinance, for participating in proceedings related to this ordinance, for seeking to exercise his or her rights under this ordinance by any lawful means, or for otherwise asserting rights under this ordinance.
1.5 EXEMPTION FOR COLLECTIVE BARGAINING AGREEMENTS.
A collective bargaining agreement in place on the effective date of this ordinance that contains a worker retention provision shall supersede the provision this ordinance if and only if the worker retention provision binds and is enforceable against the Successor Employer. When such a collective bargaining agreement expires or is otherwise open for renegotiation, the provisions of this ordinance may only be waived if the waiver is explicitly set forth in the agreement in clear and unambiguous terms. If a collective bargaining agreement is in place on the effective date of this ordinance but the agreement does not include a worker retention provision enforceable against the Successor Employer, this ordinance applies. A collective bargaining agreement may be amended at any time to explicitly waive with clear and unambiguous terms the provisions of this ordinance.
1.6 NO WAIVER OF RIGHTS.
Except for a worker retention provision enforceable against the Successor Employer as defined in Section 1.5, any waiver by a Covered Employee of any or all provisions of this ordinance shall be deemed contrary to public policy and shall be void and unenforceable. Other than in connection with the bona fide negotiation of a collective bargaining agreement, any request by a Employer to a Employee to waive rights given by this ordinance shall be a violation of this ordinance.
1.7 ENFORCEMENT.
Any person who violates any provision of this ordinance shall be subject to a civil penalty for each offense of not more than the maximum penalty pursuant to N.J.S.A. 40:49-5, which is $2,000.00. If the violation is of a continuing nature, each day during which it occurs shall constitute an additional, separate, and distinct offense.
In addition to any other penalties or remedies for violations of this ordinance, a Covered Employee may also bring a private cause of action against an Employer in any court of competent jurisdiction to recover, in addition to the remedies provided for in this act, compensatory, equitable and consequential damages. A successful plaintiff in such an action may be awarded reasonable attorney's fees and costs as permitted by Law.
SECTION 2. To the extent that any previous ordinance(s) are inconsistent with or contradictory hereto, said ordinance(s) are hereby repealed or amended to the extent necessary to make the same consistent herewith.
SECTION 3. The provisions of this Ordinance are severable. To the extent any clause, phrase, sentence, paragraph, or provision of the Ordinance shall be declared invalid, illegal or unconstitutional, the remaining provisions shall continue in full force and effect.
SECTION 4. This Ordinance shall take effect upon final passage and publication in accordance with the laws of the State of New Jersey.
STATEMENT
An Ordinance amending Title VIII, Business and Occupations, to add a new Chapter 36 entitled, Travel Service and Building Service Worker Retention which will provide procedural protections for existing workers following a change in control or contractor transition, imposing penalties and creating a private cause of action.