On April 16, 2021, Governor Gavin Newsom signed SB 93 into law, which law went into effect immediately. This new legislation enacts a “right of recall,” requiring certain employers to first offer employees laid off due to the COVID-19 pandemic available positions based on a preference system. The law applies generally to hospitality and maintenance-related employers- hotels, private clubs, event centers, and airport hospitality services as well as janitorial, building maintenance, and security services provided to office, retail and other commercial buildings.
A “laid-off employee” under the new law is defined as an employee who was employed by the employer for 6 months or more in the 12 months preceding January 1, 2020 and was laid-off for a reason related to the COVID-19 pandemic.
Covered employers must make written job offers to “laid-off employees” for all job positions that become available for which the employee is qualified. Laid-off employees are deemed qualified under the law if the employee held the same or similar position at the time the employee’s previous employment with the employer terminated. The employer must deliver the offer “either by hand or to their last known physical address, and by email and text message” if the employer has that information.
Laid-off employees have five business days to accept the offer. If more than one qualified laid-off employee accepts the job offer, the employer must rehire the “individual with the greatest length of service based on the employee’s previous date of hire,” (i.e., the employer must rehire based on seniority).
In the event an employer declines to recall a laid-off employee on the grounds of lack of qualification, the employer must provide the laid-off employee a written notice of this decision within 30 days. The written notice must include a list of all employees hired for that position and state their length of service with the employer. Further, the written notice must include the employer’s explanation as to why the employee was not rehired.
Employers must maintain records relating to rehiring laid-off employees for three years, “measured from the date of the written notice regarding the layoff.” These records must include, for each laid-off employee, the following information: (1) the employee’s full legal name; (2) the employee’s job classification at the time of the lay-off; (3) the employee’s date of hire; (4) the employee’s last known address; (5) the employee’s last known email address; (6) the employee’s last known telephone number; (7) a copy of the written notice regarding the layoff provided to the employee; and (8) all records of communications between the employer and the employee concerning offers of rehire.
The Division of Labor Standards Enforcement (“DLSE”) has exclusive jurisdiction to enforce this law. A laid-off employee may file a complaint with the DLSE and DLSE is authorized to award the laid-off employee: (1) hiring and reinstatement rights; (2) front pay or back pay for each day during which the violation continues; and (3) the value of the benefits the laid-off employee would have received under the employer’s benefit plan. In addition, the DLSE may impose civil penalties of $100 for each employee whose rights are violated and liquidated damages in the amount of $500 per employee for each day the violation continues. The penalty and liquidated damages collected by the state will be paid directly to the employee as compensatory damages.
Covered employers must establish a rehire process that complies with this new law and ensures that available positions are offered to laid-off employees before those positions are offered to others.