How will San Jose enforce its return to work law?

San Jose adopted a law this month guaranteeing laid-off workers first choice at getting their jobs back. But to enforce the law, the city will rely on those same workers to say when something is amiss.

The City Council unanimously approved its so-called Return Together ordinance on May 11, which mandates San Jose employers in the hospitality industry rehire hotel and event workers, janitors and airport workers, among others, when they reopen. Priority will be given based on how long those individuals have worked for the employer.

“As this is not part of the state recall law, it is vital to have an enforcement mechanism in the San Jose ordinance,” said Enrique Fernandez, business manager of UNITE HERE Local 19, a union that represents more than 4,500 hospitality workers in Northern California. “Thanks to the Return Together ordinance, San Jose’s hospitality workers now know their employers will accommodate their family needs as their jobs return.”

While workers who lobbied for the policy call it a victory, the task of actually hiring them back isn’t so simple.

The city will rely on complaints filed by workers to keep track of enforcement. Workers will be able to file complaints in the court system or through the state’s Department of Labor should they not be offered their jobs back.

City spokesperson Carolina Camarena said Return Together is meant to supplement Senate Bill 93, which requires employers statewide to rehire about 700,000 laid-off hospitality workers. San Jose’s Return Together rule applies stricter regulations to SB 93.

“The ordinance provides a ‘right of action,’ allowing employees to file civil lawsuits,” she said.

San Jose will require workers to give notice to their employer if they wish to file suit relating to the state’s law. The employer will have 15 days to correct the violation.

The city’s Office of Equality Assurance (OEA), which oversees San Jose’s wage policies, is not enforcing Return Together like it does with the city’s other work-related ordinances. Instead, workers have to advocate for themselves.

According to an August 2020 investigation by San José Spotlight, the OEA is overburdened and understaffed with its caseload—some of which is a result of the pandemic.

Ruth Silver-Taube, a Bay Area workers’ rights lawyer and human rights advocate, believes that workers will have a difficult time filing claims without an agency like the OEA to enforce them. Silver-Taube is the supervising attorney of both the Workers’ Rights Clinic at the Alexander Community Law Center and of Santa Clara County’s labor standards complaint hotline.

“I don’t want a remedy that is going to be useless,” said Silver-Taube.

Workers looking to sue will also have to spend legal fees and time away from their jobs to be in court—something that lower-income workers can’t afford to do—or seek representation from unions and labor lawyers. A faster option, like OEA’s board, isn’t available under Return Together’s provisions to resolve cases quickly.

“This is why workers want and need union representation,” said Jean Cohen, executive officer with the South Bay Labor Council, a coalition of 101 labor unions across Silicon Valley. “You shouldn’t be retaliated against for seeking a job that will pay you family-sustaining wages.”

The city’s 2016 Opportunity to Work ordinance, which requires employers with 36 or more employees to offer existing workers additional hours before hiring new employees, uses similar provisions. Workers must file complaints to hold their employers accountable.

“Both courts and an administrative agency should be options,” Silver-Taube said. “Hopefully, the unions will refer workers to lawyers even for non-union as well as union workers or will put pressure on the city attorney to sue.”

Contact Lloyd Alaban at [email protected] or follow @lloydalaban on Twitter.