As an employment attorney in the East Bay Area, I pay special attention to changes in ordinances that affect my practice area. And so we turn to Measure Z, passed by Oakland voters on November 6, 2018, which greatly strengthens the rights of Oakland’s “hospitality workers” (hotel workers).
(A brief aside – Measure Z also does something else that’s absolutely fascinating—effective January 1, 2020, it creates a new “Department of Workplace and Employment Standards” (DWES) that applies to all Oakland workers, which will enforce various municipal codes related to wages and working conditions—much more on that in future posts).
The immediate impact of Measure Z is on hotel workers who work in a hotel with at least 50 rooms. It two significant aspects that strengthen these workers’ rights: First, it increases the minimum wage to $15/hour, or $20/hour if the worker is not provided healthcare benefits. But it does something extremely important that was probably not noticed by most voters—If a hotel employee is fired within 120 days of exercising a Measure Z right, it requires an employer to prove by clear and convincing evidence that the employer had “just cause” to fire the employee. In other words, the employer must prove they didn’t do it to retaliate against the employee for asserting their rights.
This change is huge for a couple of reasons. For one, the general rule in California is that an employee is “at will,” meaning they can be fired for any reason or no reason, so long as they were not fired for an illegal reason (discrimination, retaliation for whistleblowing, etc.). And generally, the worker has the burden to prove that they were fired for this illegal reason.
Measure Z turns this rule upside-down. The employer must prove they had a legitimate reason to fire the employee if the employee has asserted a qualifying right under this measure.
Another reason this is big is the specific standard of proof required to show the termination was justified: the standard of proof is “clear and convincing evidence.” Ask any attorney: this is a high standard of proof. “clear and convincing evidence” is evidence that is strong enough to demand “the unhesitating assent of every reasonable mind.” (People v. Caruso (1968) 68 Cal. 2d 183 at 190) If the hotel boss’ rationale for firing their work doesn’t “command the unhesitating assent of every reasonable mind,” that it wasn’t retaliatory, then, in theory, they lose.
That’s a strong burden of proof! It’s not quite as strong as “beyond a reasonable doubt,” the standard to establish a criminally accused person’s guilt, but it’s close.
The measure significantly strengthens hotel workers’ safety as well—management is required to issue “panic buttons” to employees, remove them from threatening situations, provide support in reporting and investigating threats, and allow continued access to employee records for at least 3 years.
Critics of the measure correctly pointed out that this measure doesn’t apply to employees of the smaller hotels in Oakland, who plausibly are more at risk of abuses by management (and guests). But in all, this is a game-changer for Oakland hospitality workers who happen to work in the larger hotels and could be a nexus to providing more expansive hospitality worker protections in the coming years.