Hotel Rehiring Law Faces Legal Hurdle

If New Haven proceeds with ordering the Omni Hotel to give laid-off workers first dibs at returning to their jobs, it will be testing a creative new interpretation of state law.

The Board of Alders Legislation Committee gave that interpretation a thumbs up at a hearing this week. The six alders present unanimously recommended that the full board adopt a new local law that would require hotels to rehire laid-off workers based on seniority after the Covid-19 recession ends.

“When I saw this [ordinance], it really struck home for me. My aunt, who was like second mother to me, worked at Omni before it was the Omni,” said Dixwell Alder Jeanette Morrison.

Morrison said that her aunt’s job stabilized her whole family.

“If this was then, my aunt wouldn’t have been able to help buy food for all of us to eat,” she said.

No one at the committee meeting questioned whether New Haven is legally allowed to enforce the law.

But that’s a big question. A legal gray area may become important if a hotel like the Omni decides to challenge the requirement.

Legal Creativity

Mayor Justin Elicker’s office and the hotel workers union, UNITE HERE Local 217, teamed up to create the draft ordinance.

“It’s really something that is a tool for the workers, not something the city is going to enforce,” said city Corporation Counsel Patricia King.

The ordinance requires hotel owners to offer new positions to laid-off workers when the hotel is hiring again. The hotel is then required to hire back laid-off workers for similar jobs or jobs where they could get up to speed with the same level of training as another new worker. If workers believes they have been passed over, they can sue the hotel. Hotels can make their own case that the employee was passed over for a discipline reason, and a court will decide which way the evidence points.

Other cities have passed similar recall laws during the pandemic, including Oakland and Providence, RI.

Commenters on the Independent’s previous coverage of the law asked whether it would have legal force in Connecticut. Connecticut is a ​“Dillon’s Rule” state, meaning local governments have only those powers explicitly given to them by the state government.

The draft city law invokes Sec. 7 – 148(7)(H)(xiii) of the Connecticut General Statues. This gives local governments the power to promote the welfare of their people and their region. The draft city law describes itself as a way to ensure the city’s welfare and a speedy recovery from the Covid-19 recession.

“There’s a fairly broad grant of general authorization there. The flip side is that we can’t do anything inconsistent with a state statute. There is nothing [in state law currently] addressing this, because this situation didn’t exist before the Covid-19 pandemic,” King said after the meeting.

The justification would be a significant innovation in Connecticut employment law, according to Michael Soltis, an adjunct law professor at Quinnipiac University.

“‘General welfare’ doesn’t give you the unlimited right to do anything you want,” Soltis said. ​“I don’t think it would be just a little, insignificant issue. This could be a big deal.”

Soltis explained that local governments didn’t get involved in employment law at all until about 15 years ago. The federal government handled that, and states sometimes added their own laws.

Then gridlock in Congress in the 1990s and 2000s prompted states and local governments to pass more of their own labor laws. This is where the recent patchwork of cities passing minimum wage laws and instituting paid sick leave or ​“ban the box” criminal justice reforms comes from.

Sometimes states tell local governments that they can’t make those reforms. Or, an employer challenges the law years later and a court says the local government never had the authority to make the law.

Soltis said these local employment laws and cases haven’t happened as much in Connecticut because it is a Dillon’s Rule state. He had never heard of a Connecticut city justifying such a law with the welfare clause.

“That’s where the issue will lie. Is it a proper exercise of that authority or not? No one will know unless and until somebody challenges it,” Soltis said.

He predicted that neighboring cities with large hospitality industries would be interested in the law too if New Haven passes it.

“Will they pass their own laws so now in Connecticut we have a collection of different laws? Or will the state enact a law?” Soltis asked.

King said she does not see New Haven’s recall law as such a dramatic reimagining of local authority.

King pointed to the city’s law that contractors with the city pay their employees a living wage. The Board of Alders adopted the ordinance in 1997, during the first wave of such legislation in cities. King has not heard of any legal challenges to the city’s authority on that point.

“That would be somewhat analogous. There’s some precedent for it,” King said.

Plus, the ordinance would just require something hotels say they already plan to do. And they have wiggle room if they can show they fired an employee for disciplinary reasons.

“It’s a fairly limited ordinance with an annual review built into it. The first is in January 2022, when alders can decide whether it should still be in effect. Maybe the alders would dispose of it earlier if the Covid-19 pandemic is over by then,” King said.

“I don’t know if there will be challenges. I guess we’ll see.”

Vocal Support For Bill

According to the hotel workers, academics and activists at Tuesday’s Legislation Committee meeting, the recall law is necessary to both individual and collective New Haven welfare. No one spoke against the law.

Saint Louis University Law Professor Ruqaiijah Yearby spoke about the public health impacts of the law. People with stable jobs comply more often with shelter-in-place orders and other public health rules. They have better health outcomes and create safer workplaces.

Because local hotel workers are disproportionately African-American and Latino, the recall law translates to a decrease in racial health disparities, Yearby said.

Fatima Rojas and Chelsea Connery from the Semilla Collective spoke in Spanish and English about the mutual aid network’s efforts to keep New Haveners afloat during the recession.

“Our efforts are far from enough,” Connery said.

John Lee, who works for the youth nonprofit LEAP, said that job stability would help the school district’s efforts to teach safely during the pandemic.

“Families have consistently confided how difficult it has been to oversee children’s learning while they are being laid off left and right,” Lee said.

Newhallville Democratic ward co-chair Claudine Wilkins-Chambers said that she wants her neighbors to have jobs.

Chaz Carmon, president of the youth anti-violence group Ice the Beef, said that the recall law supports more peaceful neighborhoods.

“When you don’t rehire residents, you fuel poverty and you fuel gun violence,” Carmon said.

Hotel workers spoke about how much the pandemic lay-offs have impacted them. Women with 5, 16, and 23 years at the Omni Hotel were suddenly applying for unemployment and wading back into the job market at their age.

“My plan was to retire from the Omni. I didn’t have any other plan. Now I pay out of pocket for health insurance and am on unemployment,” said Jocelyn Burch of Beaver Hills.

Burch added that her youngest brother is in a nursing home and has diabetes.

“My anxiety level is so high, I ended up having to get on anxiety medication,” Burch said. ​“After 23 years with the hotel, I need to know that when it fully reopens, I won’t get passed over.”

Burch and others spoke about enjoying what they do.

“We are the ones that make that hotel what it is. We love to be there. For us to not have the chance to go back and love what we do is mentally, physically and financially detrimental,” said former Omni employee Carla Velotti. ​“We love being there, so we should be the first ones to go back.”