a. Definitions. For the purposes of this section, the following terms have the following meanings:
Affected hotel. The term "affected hotel" means a hotel or discrete portion of a hotel that has been the subject of a change in control or a change in controlling interest or identity.
Change in control. The term "change in control" means any sale, assignment, transfer, contribution or other disposition of all or substantially all of the assets used in the operation of a hotel or a discrete portion of a hotel. A change in control shall be defined to occur on the date of execution of the document effectuating such change.
Change in controlling interest or identity. The term "change in controlling interest or identity" means (i) any sale, assignment, transfer, contribution or other disposition of a controlling interest, including by consolidation, merger or reorganization, of a hotel employer or any person who controls a hotel employer; or (ii) any other event or sequence of events, including a purchase, sale or lease termination of a management contract or lease, that causes the identity of the hotel employer at a hotel to change. A change in controlling interest or identity shall be defined to occur on the date of execution of the document effectuating such change.
Eligible hotel service employee. The term "eligible hotel service employee" means a hotel service employee employed by a hotel employer at an affected hotel.
Former hotel employer. The term "former hotel employer" means any hotel employer who owns, controls or operates a hotel prior to a change in control or change in controlling interest or identity of a hotel or of a discrete portion of a hotel that continues to operate as a hotel after such change.
Hotel. The term "hotel" means a transient hotel as defined in section 12-10 of the New York city zoning resolution or any successor provision of such resolution.
Hotel employer. The term "hotel employer" means any person who owns, controls or operates a hotel, and includes any person or contractor who, in a managerial, supervisory or confidential capacity, employs one or more hotel service employees.
Hotel service. The term "hotel service" means work performed in connection with the operation of a hotel.
Hotel service employee. The term "hotel service employee" means (i) any person employed to perform a hotel service at an affected hotel during the 365-day period immediately preceding the change in control or change in controlling interest or identity of such hotel, or (ii) any person formerly employed to perform a hotel service at an affected hotel who retains recall rights under the former hotel employer's collective bargaining agreement, if any, or under any comparable arrangement established by the former hotel employer, on the date of the change in control or change in controlling interest or identity of such hotel. Notwithstanding the preceding sentence, the term "hotel service employee" shall not include persons who are managerial, supervisory or confidential employees or who otherwise exercise control over the management of the hotel.
Hotel service employee retention period. The term "hotel service employee retention period" means the 90-day period beginning on the date of a change in control or change in controlling interest or identity of the hotel or of a discrete portion of the hotel that continues to operate as a hotel after such change, provided that if such hotel is not open to the public on such date, such 90-day period shall begin on the first day that such hotel is open to the public after such change.
Person. The term "person" means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, trustee in bankruptcy, receiver or other entity that may employ persons or enter into service contracts, but does not include the city of New York, the state of New York, and the federal government or any other governmental entity, or any individual or entity managing real property for a governmental entity.
Successor hotel employer. The term "successor hotel employer" means a hotel employer who owns, controls or operates a hotel after a change in control or change in controlling interest or identity of the hotel or of a discrete portion of the hotel that continues to operate as a hotel after such change.
b. Hotel service employee retention.
1. No less than 15 days before a change in control or change in controlling interest or identity, a former hotel employer shall provide the successor hotel employer with a full and accurate list containing the name, address, date of hire and employment classification of each hotel service employee employed at an affected hotel. At the same time that the former hotel employer provides such list, the former hotel employer shall post such list in a notice to the hotel service employees that also sets forth the rights provided by this section, in the same location and manner that other statutorily required notices to such employees are posted at the affected hotel; provided that if such hotel is not open to the public, such notice shall be transmitted in the same manner as any offer of employment made pursuant to paragraph 2 of this subdivision. Such notice shall also be provided to the employees' collective bargaining representative, if any.
2. A successor hotel employer shall, during the hotel service employee retention period, offer each eligible hotel service employee employment for no less than 90 days under the terms and conditions established by the successor hotel employer, or as required by law, except that the wage rate offered and paid for such period shall be the same as or higher than the wage rate last paid to such employee by the former hotel employer, or as required by law. Such offers shall be made in writing and shall remain open for at least 10 business days from the date of such offer.
3. Except as provided in paragraph 4 of this subdivision, during the hotel service employee retention period, an eligible hotel service employee retained pursuant to this section shall not be discharged without cause.
4. If at any time during the hotel service employee retention period the successor hotel employer determines that fewer hotel service employees are required than were employed by the former hotel employer, the successor hotel employer shall retain eligible hotel service employees by seniority and experience within each job classification, to the extent such classification exists.
5. A successor hotel employer shall retain written verification of each offer of employment made pursuant to paragraph 2 of this subdivision. Such verification shall include the name, address, date of hire and job classification of the eligible hotel service employee to whom the offer was made. A successor hotel employer shall retain such verification for no less than 3 years from the date the offer is made.
6. At the end of the hotel service employee retention period, the successor hotel employer shall perform a written performance evaluation for each hotel service employee retained pursuant to this section. If such employee's performance during such retention period is satisfactory, the successor hotel employer shall offer such employee continued employment under the terms and conditions established by the successor hotel employer. A successor hotel employer shall retain such written performance evaluation for no less than 3 years from the date it is issued.
c. Remedies.
1. A hotel service employee who has been discharged or not retained in violation of this section may bring an action in supreme court against a former hotel employer or successor hotel employer for violation of any obligation imposed pursuant to this section.
2. The court shall have authority to order preliminary and permanent equitable relief, including, but not limited to, reinstatement of any employee who has been discharged or not retained in violation of this section. If the court finds that by reason of a violation of any obligation imposed pursuant to subdivision b of this section, a hotel service employee has been discharged or not retained in violation of this section, the court shall award:
(i) back pay, and an equal amount as liquidated damages, for each day during which the violation continues, which shall be calculated at a rate of compensation not less than the higher of (1) the average regular rate of pay received by the employee during the last 3 years of the employee's employment in the same occupation classification; or (2) the final regular rate of pay received by the employee. Back pay shall apply to the period commencing on the date of the discharge or refusal-to-retain by the successor hotel employer and ending on the effective date of any offer of instatement or reinstatement of the employee;
(ii) costs of benefits the successor hotel service employer would have incurred for the employee under such employee's benefit plan; and
(iii) the employee's reasonable attorney's fees and costs.
4. In any such action, the court shall have authority to order the former or successor hotel employer, as applicable, to provide any information required pursuant to subdivision b of this section.
d. Applicability. This section shall not apply to:
1. any successor hotel employer who, on or before the change of control or change in controlling interest or identity, agrees to assume, or to be bound by, the collective bargaining agreement of the former hotel employer, provided that such collective bargaining agreement provides terms and conditions for the discharge or laying off of employees;
2. if there was no existing collective bargaining agreement as described in paragraph 1 of this subdivision, any successor hotel employer who agrees, on or before the change of control or change in controlling interest or identity, to enter into a new collective bargaining agreement covering its hotel service employees, provided that such collective bargaining agreement provides terms and conditions for the discharge or laying off of employees; or
3. a former hotel employer who obtains a written commitment from a successor hotel employer that such successor hotel employer's hotel service employees will be covered by a collective bargaining agreement that provides terms and conditions for the discharge or laying off of employees.
e. Records.
1. Each hotel employer shall maintain for three years, for each employee and former employee, by name, a record showing the employee's regular hourly rate of pay for each week of the employee's employment.
2. Each hotel employer shall make an employee's or former employee's records available in full to such employee or former employee upon request.
(L.L. 2020/099, 9/28/2020, eff. 9/28/2020)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2020/099.